Bari v London Borough Of Waltham Forest

An application to reinstate a dismissed employment appeal should be refused where the proposed grounds have no real prospect of success and no other compelling reason justifies continuation. The court may determine the application on the documents and refuse a further adjournment where the papers permit a just determination, particularly after a protracted procedural history. An Employment Tribunal remains the tribunal of fact. Its findings will not be reopened merely by alleging perversity, a competing reason for dismissal, or procedural shortcomings where the tribunal addressed the relevant issues and acted within its discretion. A party cannot cross-examine her own witness. The application was dismissed.

The claimant was employed by the respondent council as a social worker's assistant. She was retired on ill-health grounds after seven weeks' notice. The Employment Tribunal dismissed claims of unfair and wrongful dismissal, finding that the council reasonably believed she sought retirement and that its procedure was fair.

The Employment Appeal Tribunal found no grounds to challenge that decision and later refused review and leave to appeal. Applications for permission and reinstatement were subsequently dismissed or refused in the Court of Appeal. The claimant sought a further adjournment of the remaining reinstatement application because her husband was ill. The central issues were whether the appeal disclosed arguable errors of law and whether there was any compelling reason for reinstatement.

1. The further adjournment was refused. The papers were extensive and enabled the court to determine the merits justly. Employment cases should be dealt with promptly, and the procedural history was already unduly protracted.
2. The application to reinstate the appeal was dismissed. The proposed grounds had no real prospect of success and there was no other compelling reason for the appeal to proceed.
3. The Employment Tribunal was the sole tribunal of fact. It had found that the dismissal was on ill-health grounds at the claimant's request and that there was no procedural defect making the dismissal unfair. The allegation that those findings were perverse was unsustainable.
4. The Tribunal had acted within the proper ambit of its discretion in refusing an adjournment pending disclosure of the medical adviser's notes. The medical adviser was the claimant's own witness and she could not cross-examine him.
5. The court also noted that the Court of Appeal did not possess an Employment Tribunal or Employment Appeal Tribunal-style power to review its own decisions. The formal order was: application dismissed.

• Court of Appeal (Civil Division) — on 21 December 2001 refused a further adjournment and dismissed the application to reinstate the appeal: [2001] EWCA Civ 2064.
• Court of Appeal (Civil Division) — Keene LJ dismissed two related reinstatement applications on 29 October 2001 and adjourned the remaining application.
• Court of Appeal (Civil Division) — Mummery LJ refused reinstatement of the earlier applications for permission to appeal on 21 December 2000.
• Court of Appeal (Civil Division) — Evans LJ and Mummery LJ dismissed the application for permission to appeal on 13 December 1999.
• Employment Appeal Tribunal — on 2 December 1998 found no grounds to challenge the Employment Tribunal's decision and later refused review and leave to appeal.
• Employment Tribunal — on 5 May 1998 dismissed the claims of unfair and wrongful dismissal.