Lynn v Rockeby School Governors & Ors

Permission to appeal should be granted only where the proposed appeal has a real prospect of success. An appeal from an Employment Tribunal must identify an error of law in the Tribunal’s decision. A refusal by the Employment Appeal Tribunal to review its decision is discretionary. The court should interfere only for an error of legal principle, failure to consider relevant matters, or a decision which no reasonable tribunal could have reached.

Dr John Lynn brought claims arising from his employment as a part-time science teacher, including unfair dismissal, sex discrimination, unlawful deductions and alleged discrimination concerning access to a teachers’ pension scheme. The Employment Tribunal rejected his claims.

The Employment Appeal Tribunal allowed only the pension issue to proceed at a preliminary hearing. It dismissed that appeal on 21 March 2001 and refused a review. Dr Lynn then sought permission to appeal both decisions, out of time, and sought an extension of time. The central issues were whether there was a real prospect of establishing an error of law and whether the refusal to review involved a flawed exercise of discretion.

Lord Justice Mummery delivered the judgment, with Lord Justice Buxton agreeing without adding reasons. Both applications for permission to appeal were refused.

1. Permission to appeal. The court stated that permission could be granted only if the proposed appeal had a real prospect of succeeding. An appeal from the Employment Tribunal required proof of an error of law in that Tribunal’s decision.
2. Merits of the proposed appeal. The court found no real prospect of showing that the Employment Tribunal had erred in interpreting or applying the Employment Rights Act in relation to unfair dismissal, or the Equal Pay Act 1970, the Sex Discrimination Act and relevant European Community law. The Tribunal had found that the dismissal resulted from prolonged ill-health absence and that the pension arrangements did not involve less favourable treatment on grounds of sex.
3. Review jurisdiction. The Employment Appeal Tribunal had a broad discretion when deciding whether to review its decision. The Court of Appeal would intervene only if there were an error of legal principle, a failure to take relevant matters into account, or a decision which no reasonable tribunal could have reached. There was no real prospect of establishing such a flaw.
4. The alleged failures under sections 3, 6(1) and 7(1) of the Human Rights Act 1998, section 2 of the Employment Tribunal Act 1996, and the Convention arguments did not create a realistic prospect of success. As permission was refused, the application to extend time did not arise for decision.

• Court of Appeal (Civil Division): refused permission to appeal against the Employment Appeal Tribunal’s refusal to review and dismissal of the pension-scheme appeal; the application to extend time therefore did not arise. [2001] EWCA Civ 1816
• Employment Appeal Tribunal: dismissed Dr Lynn’s appeal on the pension-scheme issue on 21 March 2001 and refused a review.
• Employment Tribunal: rejected the claims, including unfair dismissal, sex discrimination, unlawful deductions and alleged discrimination concerning pension-scheme access.