Nobbs v Cam Systems Ltd

A review by an employment tribunal or the Employment Appeal Tribunal is not a substitute for an appeal. Review jurisdiction is confined to correcting matters such as jurisdictional error or procedural mishap. The interests-of-justice ground in rule 33(1)(c) of the Employment Appeal Tribunal Rules 1993, although broadly worded, does not permit a party to reargue the merits, reopen factual findings or obtain a rehearing. An application challenging the original decision, rather than the order under review, falls outside the rule. Permission to appeal should be refused where the proposed grounds disclose no permissible review ground, no real prospect of success and no compelling reason for the appeal to proceed.

Derek Nobbs, an employee and 5% shareholder of Cam Systems Ltd, was summarily dismissed for gross misconduct after disputes with the managing director. The Employment Tribunal found the dismissal fair in February 1998 and later refused repeated applications to review that decision. The Employment Appeal Tribunal dismissed an appeal at a preliminary hearing in December 1998, dismissed a further appeal against refusal of review in December 2000, and refused a review of that order in February 2001. Mr Nobbs applied to the Court of Appeal for permission to appeal against the latest refusal and sought production of documents. The central issue was whether his grounds disclosed a permissible review of the EAT’s order.

Lord Justice Peter Gibson gave a single judgment dismissing the application for permission to appeal. The ancillary application for production of documents fell with it.

1. The Employment Tribunal had limited powers to review its own decision under rule 11(1) in Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 1993. The EAT likewise had power under rule 33(1) of the Employment Appeal Tribunal Rules 1993 to review, revoke or vary its own order on the specified grounds.
2. Although rule 33(1)(c), referring to the interests of justice, was expressed in wide terms, it was confined to repairing matters such as an error of jurisdiction or a procedural mishap. It did not permit cases to be reargued or reheard. In short, a review was not an appeal.
3. Mr Nobbs’s grounds sought to challenge the original Employment Tribunal decision, reopen factual matters and revisit issues arising from an appeal which had already failed. They did not fall within rule 33(1), and did not show that the EAT had erred in refusing a review.
4. The proposed appeal had no real prospect of success and there was no compelling reason for it to proceed. The application was therefore dismissed, together with the document-production application.

1. Court of Appeal (Civil Division): On 30 April 2001, the application for permission to appeal against the EAT’s refusal of review was dismissed. The ancillary document-production application was also dismissed. [2001] EWCA Civ 626
2. Employment Appeal Tribunal: The EAT dismissed Mr Nobbs’s appeal against refusal of a further review application on 4 December 2000 and refused a review of that order on 22 February 2001.
3. Employment Tribunal: The Tribunal found the dismissal fair in February 1998 and refused repeated review applications, including the application refused on 11 May 2000.