Thomas v Tiny Opus Computers

Permission to appeal should be refused where the proposed appeal has no real prospect of success and no other compelling reason justifies allowing it to proceed. An appeal from an employment tribunal lies only for an error of law. A factual challenge succeeds only where there was no evidence capable of supporting the finding, or no reasonable tribunal, properly directed, could have reached it. The tribunal remains the judge of fact and may admit hearsay evidence, attaching such weight to it as it considers appropriate. Appellate courts rarely interfere with case-management decisions concerning evidence or questioning. A review under rule 33(1) of the Employment Appeal Tribunal Rules 1993 is not a substitute for an appeal.

Mr Thomas complained of racial discrimination and constructive dismissal arising from his employment by Tiny Opus Computers Ltd. The Lewzey Tribunal dismissed some complaints but found discrimination in relation to the opportunity to apply for a senior salesman post and career counselling. The Employment Appeal Tribunal allowed the employer’s appeal and remitted those issues to a differently constituted tribunal.

The Roose Tribunal rejected the remitted discrimination complaints. The EAT dismissed Mr Thomas’s appeal and later refused a review. He applied to the Court of Appeal for permission to appeal out of time against the earlier EAT order and against the refusal of review. The central questions were whether there was an arguable error of law and whether the review jurisdiction had been properly invoked.

1. Application refused. The delay in appealing was not decisive, because the principal consideration was whether the proposed appeal had substance. No other compelling reason justified allowing it to proceed.
2. The permissible grounds of appeal from an employment tribunal were errors of law. An alleged error of fact became an error of law only where the tribunal had no evidence on which to base its finding, or where no reasonable tribunal, properly instructed, could have reached it. The Roose Tribunal had evidence supporting its conclusions concerning the two key witnesses and the employer’s explanation.
3. The employment tribunal was the sole tribunal of fact. It was entitled to determine whether witnesses were truthful and what weight to attach to evidence, including hearsay evidence. The complaint about hearsay disclosed no arguable error.
4. The findings of the Lewzey Tribunal on the remitted issues were not binding. Its decision had been set aside on the employer’s appeal, and the Roose Tribunal had to determine the issues on the evidence before it, which might not have been identical.
5. Case management decisions concerning the relevance of evidence and cross-examination were ordinarily matters for the tribunal’s judgment and good sense. An appellate body would rarely interfere unless the decision disclosed an error of law or unfairness. The exclusion of evidence concerning wider workplace circumstances was within that proper case-management function.
6. A review under rule 33(1) of the Employment Appeal Tribunal Rules 1993 was confined to its limited review grounds. Mr Thomas was attempting to reargue the merits, which was an appeal rather than a proper review. Permission to appeal against the refusal of review therefore also had no real prospect of success.

• Employment Tribunal, London Central: The Lewzey Tribunal dismissed the direct discrimination and harassment complaints but found discrimination on two remitted issues.
• Employment Appeal Tribunal: On 15 June 2000, the employer’s appeal was allowed and the matter was remitted to a differently constituted tribunal. The Roose Tribunal subsequently dismissed the remitted complaints, and the EAT dismissed Mr Thomas’s appeal. On 18 September 2001, the EAT refused his application for review.
• Court of Appeal (Civil Division): Permission to appeal out of time and permission to appeal against the refusal of review were refused.