Kovacs v Queen Mary and Westfield College & Anor

A party who expressly decides not to give oral evidence, after being informed of the consequences, cannot ordinarily complain that the resulting hearing was unfair. Employment Appeal Tribunal time limits must be observed. Refusing an application made substantially out of time to introduce new grounds of appeal is not, without more, a breach of Article 6. Where an arguable costs appeal remains, enforcement of the costs order may be stayed pending its determination.

The appellant had brought claims of unfair dismissal, sex discrimination and race discrimination against the respondents. The Employment Tribunal dismissed the discrimination claims, awarded compensation for unfair dismissal and ordered the appellant to pay costs. The Employment Appeal Tribunal dismissed the costs appeal and refused permission to amend the notice of appeal to introduce complaints concerning the fairness of the hearing and Article 6.

The Court of Appeal had granted permission on the substantive costs issue but refused permission on the Article 6 arguments. The appellant renewed the application concerning amendment of the notice of appeal and sought a stay of enforcement of the costs order.

1. Article 6 and oral evidence. The Employment Tribunal had given the appellant a fair and careful hearing. She had expressly decided not to provide a witness statement or give evidence, having been informed of the significance of that decision. She was permitted to put forward a lengthy written opening statement and to call witnesses. There was therefore no proper basis for alleging that she had been prevented from giving evidence or denied a fair hearing.
2. Late amendment of appeal grounds. The Employment Appeal Tribunal was entitled to refuse permission to introduce the Article 6 complaints. The original notice of appeal raised only the costs issue, the proposed amendments were substantially out of time, and similar matters had not been advanced at the earlier preliminary hearing. Proper time limits for appeals are necessary, and compliance with them is not inconsistent with Convention rights. The approach reflected the need to observe the Employment Appeal Tribunal’s procedural rules, as illustrated by United Arab Emirates v Abdelghafar [1995] ICR 65.
3. Disposition. The Court agreed with the refusal of permission on the Article 6 points. The application was otherwise refused, save that enforcement of the costs order was stayed pending determination of the permitted appeal on costs.

• Court of Appeal (Civil Division): The court refused permission to appeal on the Article 6 and hearing-conduct grounds. It stayed enforcement of the costs order pending the substantive costs appeal.
• Employment Appeal Tribunal: On 1 December 2000, it dismissed the appeal concerning costs and refused permission to amend the notice of appeal to add the Article 6 complaints.
• Employment Tribunal: On 30 July 1999, it dismissed the discrimination claims, awarded compensation for unfair dismissal and made costs orders against the appellant.