Henry & Ors v London General Transport Services Ltd

Permission to appeal should be granted where the proposed grounds are properly arguable and the court cannot conclude that the appeal has no real prospect of success. The existence of a point of general importance, including the incorporation of a collective bargain into individual contracts of employment, supports granting permission. At the permission stage, the court does not finally determine the merits of disputed contractual or employment-law issues.

Sixty-one employees sought permission to appeal from an order of the Employment Appeal Tribunal, which had allowed the employer’s appeal from part of an Employment Tribunal decision concerning alleged unlawful deductions from wages under section 23 of the Employment Rights Act 1986. The dispute followed the privatisation of part of London’s bus services and changes agreed between the employer and the recognised trade union.

The Employment Appeal Tribunal had criticised the tribunal’s approach to the burden of proof, incorporation by custom and practice, and acceptance of the revised terms, and had remitted the case. The central question was whether the employees’ proposed grounds were sufficiently arguable to justify permission to appeal.

1. Permission granted. The court could not say that the employees’ proposed grounds had no real prospect of success. The points were properly arguable.
2. The proposed appeal raised issues of general importance concerning the incorporation of a collective bargain into individual contracts of employment. That consideration reinforced the conclusion that permission should be given.
3. The proposed grounds concerned the burden of proof on incorporation by custom and practice, whether the revised terms had been accepted, and whether the Employment Appeal Tribunal had impermissibly interfered with factual findings or usurped the Employment Tribunal’s fact-finding function.
4. The court did not determine those issues finally. Permission was granted, with the amended section 7 grounds to be redrafted within 10 days, the appellants’ names to be provided, and the appeal listed for one day before a court consisting of at least one Lord Justice with Employment Appeal Tribunal experience. Costs were costs in the appeal.

• Employment Tribunal: upheld the employees’ complaints that there had been unlawful deductions from wages under section 23 of the Employment Rights Act 1986.
• Employment Appeal Tribunal: allowed the employer’s appeal in part, identified errors of law in the tribunal’s approach, and remitted the matter to the same tribunal.
• Court of Appeal (Civil Division): granted permission to appeal.