Bennett v London Borough Of Southwark

On a second-tier appeal, permission may properly be granted where the proposed appeal raises an arguable question of principle concerning the correct approach to allegations of tribunal bias. Permission may also be appropriate where it is arguable that the Employment Appeal Tribunal failed to address accurately the consequences of allowing an appeal from an earlier procedural order. The Court of Appeal’s permission decision does not determine the merits of the bias allegation, the strike-out, or the underlying claims.

The applicant brought claims for racial discrimination and unfair dismissal after her dismissal in the mid-1990s. The first Employment Tribunal disqualified itself after concerns arose about allegations of racial bias. A second tribunal struck out the claims for vexatious conduct by the applicant’s representative. The Employment Appeal Tribunal held that the first tribunal had been wrong to disqualify itself, but exercised its own powers to strike out the claims. The central issue before the Court of Appeal was whether permission should be granted for a second-tier appeal concerning the approach to possible tribunal bias and the consequences of the Employment Appeal Tribunal’s decision.

1. Permission granted. Lord Justice Longmore allowed the application to appeal. Although this was a second-tier appeal, the proposed issues were sufficiently arguable to justify permission.
2. The first arguable issue concerned questions of principle about the correct approach of an Employment Tribunal and the Employment Appeal Tribunal where possible bias of the tribunal is raised. The court treated that issue as suitable for consideration on appeal without deciding whether actual or apparent bias had been established.
3. The second arguable issue concerned whether the Employment Appeal Tribunal had fully and accurately addressed the consequences of allowing the appeal against the first tribunal’s discontinuance of the proceedings. The procedural relationship between the first tribunal, the second tribunal and the Employment Appeal Tribunal therefore warranted appellate examination.
4. The court also regarded it as materially unfortunate that the applicant had been dismissed many years earlier and that no hearing had yet reached a conclusion. Those circumstances reinforced the appropriateness of granting permission but did not determine the underlying discrimination or unfair-dismissal claims.

Order: Application to appeal allowed.

• Court of Appeal (Civil Division): In [2001] EWCA Civ 711, Lord Justice Longmore allowed the application for permission to appeal.
• Employment Appeal Tribunal: Held that the first Employment Tribunal had been wrong to disqualify itself and stop the hearing, but exercised its own powers to strike out the proceedings.
• Second Employment Tribunal: Granted the respondent’s application to strike out the claims on the basis of vexatious conduct by the applicant’s representative.
• First Employment Tribunal: Disqualified itself after the applicant’s representative was considered to have accused the tribunal of racial bias.