Okponobi v Holland & Barrett Retail Ltd & Ors

Permission to appeal from the Employment Appeal Tribunal should be refused where the challenged tribunal findings are unequivocal, fact-based and unappealable. A claimant’s assertion that grounds are arguable does not require an appeal to proceed to a full hearing where the Employment Appeal Tribunal has properly identified the issues and concluded that no appealable point exists.

Okponobi v Holland & Barrett Retail Ltd & Ors concerned a renewed application for permission to appeal from a preliminary decision of the Employment Appeal Tribunal. Mr Okponobi challenged findings concerning unfair dismissal, race discrimination and sex discrimination. The Employment Appeal Tribunal dismissed all but one ground, allowing a possible victimisation complaint concerning the handling of his internal appeal to proceed. The central issue was whether the remaining challenges disclosed any arguable and appealable point.

The Court of Appeal dismissed the renewed application for permission to appeal. Lord Justice Sedley declined to adjourn the matter again because the applicant had received notice but did not attend.

1. Discrimination and unfair dismissal. The Employment Tribunal had made unequivocal findings based on the facts in relation to the challenged discrimination and unfair-dismissal issues. Those findings were not open to appeal.
2. Role of the Employment Appeal Tribunal. The Employment Appeal Tribunal had demonstrated a clear grasp of the issues raised and had given a lucidly reasoned decision. It was clearly right to conclude that there was nothing appealable in the grounds it had dismissed.
3. Permission. The fact that the applicant considered the grounds arguable did not justify allowing those matters to proceed to a full hearing. There was no ground for granting permission against the adverse elements of the Employment Appeal Tribunal’s decision.
4. Remaining victimisation ground. The Employment Appeal Tribunal had allowed the appeal to proceed on a single ground concerning the way in which Mrs Smith had heard Mr Okponobi’s appeal. The Court of Appeal’s application was directed to the other adverse elements and was refused.

Order: application refused.

• Court of Appeal (Civil Division): On the renewed application, permission to appeal was refused: [2001] EWCA Civ 2052.
• Employment Appeal Tribunal: On a preliminary hearing, dismissed all but one ground of appeal from the Employment Tribunal, allowing a victimisation ground concerning the handling of an internal appeal to proceed.
• Employment Tribunal: Made findings concerning the unfair-dismissal, race-discrimination and sex-discrimination complaints which the Employment Appeal Tribunal regarded as unequivocal, fact-based and unappealable.