Abegaze v British Telecommunications Plc

An appellate tribunal’s decision to adjourn or review a hearing is discretionary. Its exercise of that discretion will be disturbed only where it proceeded on a false basis or was clearly wrong. The admission of fresh evidence is likewise governed by the interests of justice. Principles such as those in Ladd v Marshall may guide the discretion, but they do not impose an inflexible code. Evidence need not concern the merits of the underlying claim if it is relevant to the manner in which proceedings were conducted and to a possible strike-out. Permission to appeal should be refused where the challenged decisions disclose no arguable error of law and the appeal has no realistic prospect of success.

Dr Abegaze sought permission to appeal against two decisions of the Employment Appeal Tribunal. The first dismissed his appeal from an Employment Tribunal decision after refusing an adjournment, and the second refused a review of that dismissal.

The Employment Appeal Tribunal had proceeded in his absence because the medical evidence did not establish that he was unable to attend. It also considered that his failure to file an amended notice of appeal justified striking out the appeal, and found no sustainable error of law in the underlying Employment Tribunal decision.

The underlying proceedings concerned an alleged failure by British Telecommunications plc to offer Dr Abegaze employment on racial grounds. The Employment Tribunal had reviewed an earlier decision and struck out his application because of the scandalous manner in which the proceedings had been conducted. The central issues were whether the tribunals had erred in admitting fresh evidence and exercising their procedural discretions.

1. Applications dismissed. Permission to appeal was refused because the proposed appeals had no prospect of success and disclosed no error of law.
2. The Employment Appeal Tribunal was entitled to refuse an adjournment. The evidence showed illness, but did not establish that Dr Abegaze was unable to attend the hearing on the relevant date. The decision was discretionary and Dr Abegaze did not materially challenge it.
3. The refusal to review the earlier decision was also discretionary. That decision could be disturbed only if the Employment Appeal Tribunal had proceeded on a false basis or was clearly wrong. It had considered both the failure to comply with the order for an amended notice of appeal and the merits of the existing grounds.
4. The Employment Tribunal was entitled to admit fresh evidence when reviewing its earlier decision. The principles illustrated by Ladd v Marshall were relevant guidance, but they were not a straitjacket. The ultimate question was whether admission of the evidence was in the interests of justice.
5. The evidence concerning Dr Abegaze’s dismissal by a previous employer was relevant, although it did not concern the merits of his application for employment. It bore on his conduct during and in relation to the proceedings and therefore on whether the proceedings should be struck out. It was only one element in an accumulation of conduct relied on by the Employment Tribunal.
6. The Employment Tribunal had relied on the interests of justice in reviewing its earlier decision and had made no error of law. The Employment Appeal Tribunal was therefore entitled to dismiss the appeal and refuse a review.

Order: application refused.

• Court of Appeal (Civil Division): Applications for permission to appeal against the Employment Appeal Tribunal’s decisions dated 30 April 2001 and 13 June 2001 were dismissed.
• Employment Appeal Tribunal: The appeal from the Employment Tribunal was dismissed on 30 April 2001, and review was refused on 13 June 2001.
• Employment Tribunal: An earlier decision was reviewed and the application was struck out under the Employment Tribunal Rules 1993 because of the scandalous manner in which the proceedings had been conducted.