Leander v Goldsmith's College (University of London)

Where an employment tribunal dismisses claims as out of time, additional merits findings are ordinarily hypothetical and unnecessary to the result. A challenge to those findings will not normally create a viable appeal, even if the respondent later relies on them to the claimant’s disadvantage. An alleged causal link between the tribunal’s decision and later victimisation does not make the tribunal responsible for the respondent’s conduct. A fair-trial complaint must distinguish the time for instituting proceedings from the time needed to assemble evidence. Refusal of late disclosure is not an appealable error where lateness, relevance and prejudice were considered.

The applicant, a lecturer employed by the respondent on fixed-term contracts, brought claims for wrongful and constructive dismissal and race discrimination. The Employment Tribunal dismissed the claims as out of time, but stated that the discrimination claims would also have failed on their merits if jurisdiction had existed. The Employment Appeal Tribunal dismissed an appeal alleging tribunal bias, unfairness, refusal of disclosure and failure to address an Article 6 complaint. The application to the Court of Appeal concerned whether the tribunal’s hypothetical merits reasoning and related procedural complaints disclosed a viable appeal, including an asserted risk of later victimisation.

1. Permission refused. Lord Justice Laws held that the Employment Tribunal’s operative decision was dismissal of the claims as out of time. Its additional merits reasoning was unnecessary to that decision. Any adverse practical consequences caused by the respondent’s later use of that reasoning were regrettable, but did not provide a proper subject for appeal.
2. An alleged causal connection between the tribunal’s judgment and later victimisation by the respondent could not make the tribunal responsible for the respondent’s conduct or create a viable appellate issue. The applicant’s later employment position also weakened the asserted complaint of victimisation.
3. The Article 6 complaint failed to distinguish between instituting proceedings within time and having evidence available within time. Nothing in the tribunal’s findings established that a timely claim would automatically have ensured timely availability of the evidence.
4. The Employment Tribunal had refused a late application for disclosure after considering the stage at which it was made, the perceived relevance of the documents and the balance of prejudice. The Employment Appeal Tribunal was entitled to conclude that this decision could not be impugned. In any event, the alleged procedural failure concerned an issue rendered moot or hypothetical by the dismissal of the claims as out of time.
5. The Employment Appeal Tribunal had found no sufficient basis for allegations of bias or other procedural or legal error. Lord Justice Laws therefore refused permission to appeal.

• Court of Appeal (Civil Division): On 23 October 2001, Lord Justice Laws refused permission to appeal: [2001] EWCA Civ 1709.
• Employment Appeal Tribunal: On 11 May 2001, dismissed the applicant’s appeal from the Employment Tribunal, finding no sufficient basis in bias or other procedural or legal error.
• Employment Tribunal: Dismissed the claims for wrongful and constructive dismissal and race discrimination as out of time. It also indicated hypothetically that the discrimination claims would have failed on their merits.