Kanu v London Borough Of Lambeth

An appeal from an employment tribunal lies only on a question of law. It is not a rehearing of factual findings. Unsuccessful job applications, failures to obtain promotion and failures to be appointed are ordinarily one-off acts. Their continuing effects do not make them acts extending over a period for the purposes of section 68 of the Race Relations Act 1976. A tribunal’s discretion to extend time on just and equitable grounds will not be disturbed without an error of legal principle or a decision that no reasonable tribunal could have made. Where the tribunal has properly applied the law to the evidence, permission to appeal should be refused.

Mr Brima Kanu sought permission to appeal from a preliminary decision of the Employment Appeal Tribunal dated 13 July 2001. The Employment Appeal Tribunal had dismissed his appeal against the Employment Tribunal’s decision of 4 May 2000.

After a lengthy hearing, the Employment Tribunal dismissed claims for unfair dismissal, race discrimination, unequal pay and breach of the Transfer of Undertakings (Protection of Employment) Regulations 1981. The proposed appeal raised alleged errors concerning time limits, the refusal to extend time, redundancy and dismissal, equal pay, transfer of an undertaking, procedural fairness and tribunal bias. The central question was whether any arguable error of law gave the proposed appeal a real prospect of success.

Lord Justice Mummery refused permission to appeal.

1. Scope of appellate review. Parliament had limited the right of appeal to questions of law. There was no general appeal against findings of fact, and an appeal was not a rehearing. The relevant question was whether the tribunal’s decision contained a legal error making it unsafe.
2. Time limits and continuing acts. The Employment Tribunal was legally correct to treat the unsuccessful job applications, failures to obtain promotion and failures to obtain appointments as discrete one-off acts. Although the consequences of not obtaining a job continued, that did not mean that the acts extended over a period within section 68 of the Race Relations Act 1976. The claims relating to acts before 16 September 1995 were therefore time-barred.
3. Extension of time. The tribunal had a discretion to extend time where it considered that doing so was just and equitable. The Court of Appeal would interfere only for an error of legal principle or where the decision was one which no reasonable tribunal, properly directing itself, could have made. The tribunal’s reasons were valid and disclosed no such error.
4. Remaining claims. The tribunal was entitled to conclude that the dismissal was by reason of redundancy and that the selection, consultation and redeployment arrangements were not unfair. Its dismissal of the unequal pay claim disclosed no error of law. The Transfer of Undertakings (Protection of Employment) Regulations 1981 did not apply to the facts.
5. Bias and conduct of the hearing. The Employment Appeal Tribunal was entitled, having considered the allegations against the chairman and his responses, to reject the complaint of bias. The Employment Tribunal had made findings open to it on the evidence and had applied the relevant law without legal error. Order: permission to appeal refused.

1. Court of Appeal (Civil Division): On 8 November 2001, refused permission to appeal: [2001] EWCA Civ 1762.
2. Employment Appeal Tribunal: At a preliminary hearing on 13 July 2001, dismissed Mr Kanu’s appeal, finding no error of law in the Employment Tribunal’s decision.
3. Employment Tribunal: On 4 May 2000, dismissed the claims for unfair dismissal, race discrimination, unequal pay and breach of the Transfer of Undertakings (Protection of Employment) Regulations 1981.