Armstrong v Devon County Council

Permission to appeal from an Employment Appeal Tribunal decision requires an arguable error of law in the decision under challenge. The Court of Appeal will not investigate unrelated matters or interfere with an employment tribunal’s exercise of discretion where no legal error is arguable.

A deposit may properly be ordered under rule 7 where a sex-discrimination claim has no reasonable prospect of success. The fact that a woman replaced a man is insufficient, without evidential material supporting an inference of discriminatory motive. Failure to pay the deposit may justify strike-out under rule 7(7). Even assuming rule 15 permits an extension of time, a reasoned strike-out decision is not arguably erroneous where the claimant had notice and did not pay.

Mr Armstrong applied for permission to appeal against two Employment Appeal Tribunal decisions arising from his sex-discrimination claim against Devon County Council. The employment tribunal had ordered him to pay a £100 deposit after concluding that the claim had no reasonable prospect of success. After the deposit was not paid, the claim was struck out, and the Employment Appeal Tribunal dismissed appeals against both orders.

He alleged procedural defects, breaches of natural justice and errors in the exercise of discretion. The Court of Appeal considered whether either decision disclosed an arguable error of law.

The applications for permission to appeal, including the application for an extension of time, were refused. Lord Justice Pill confined the court’s consideration to the two specific decisions before it and declined to investigate other matters said to remain before the Employment Appeal Tribunal.

1. Under rule 7 of Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, the employment tribunal was entitled to order a £100 deposit. The sex-discrimination complaint rested on the fact that a woman had replaced Mr Armstrong in a computer class. Although an inference of sexual motive may be available in an appropriate case where an employer gives no satisfactory explanation, the material before the court provided no arguable basis for such an inference.
2. The Employment Appeal Tribunal and the Court of Appeal have limited jurisdiction on an appeal from an employment tribunal. Permission requires an arguable legal error in the decision challenged. Complaints about other procedural matters could not justify permission where no such error was shown.
3. The strike-out followed the failure to pay the deposit after the relevant period. Lord Justice Pill agreed with the Employment Appeal Tribunal’s reasoning, subject to the question whether rule 15 conferred a discretion as to time. The order had been notified to Mr Armstrong, there was no indication that an appeal suspended it, and he could have paid under protest while challenging it.
4. The court assumed, in Mr Armstrong’s favour, that a discretion under rule 15 existed, but expressly left that question undecided. The tribunal had considered the matter and given reasons. Its decision to strike out could not therefore be shown to be arguably wrong. Both orders were properly made.

• Court of Appeal (Civil Division): In [2001] EWCA Civ 334, Lord Justice Pill refused permission to appeal and the associated extension-of-time application.
• Employment Appeal Tribunal: Dismissed the appeal against the £100 deposit order and separately dismissed the appeal against the strike-out order.
• Employment Tribunal: Ordered a £100 deposit and later struck out the sex-discrimination part of the originating application for non-payment.