Singh v Lambeth Healthcare NHS Trust

Permission to appeal from the Employment Appeal Tribunal requires a point of law with a real prospect of success. Findings of fact are not appealable. A discretionary decision is reviewable only if plainly wrong, made in disregard of legal principle, or based on a serious misunderstanding of the facts. Under rule 9(3) of the Employment Tribunals Regulations 1993, an Employment Tribunal may proceed in a party’s absence. It must exercise that discretion properly, considering the available material and balancing the prejudice caused by proceeding or postponing. Where no adequate reason for non-attendance is established, the tribunal may refuse a further postponement and determine the case on the evidence before it.

The appellant brought proceedings arising from the termination of her employment as a health visitor, including a complaint of constructive unfair dismissal. Following an earlier remittal, the Employment Tribunal heard the case in her absence on 7 April 2000 and dismissed the complaint because no evidence had been given to satisfy the burden of proof. It refused a review. The Employment Appeal Tribunal dismissed her appeal and refused permission to appeal on 19 January 2001. She applied to the Court of Appeal for permission, principally challenging the decision to proceed in her absence and relying on medical material and article 6. The central issue was whether the Tribunal had exercised its discretion unlawfully.

Application refused. Lord Justice Mummery held that the proposed appeal had no real prospect of success because the appellant identified no error of law in the Employment Tribunal’s decision.

1. An appeal from the Employment Appeal Tribunal to the Court of Appeal requires permission and must raise a point of law. Findings of fact cannot be challenged in such an appeal. Where the complaint concerns a discretionary decision, the applicant must show that the discretion was plainly wrongly exercised, exercised in disregard of legal principle, or based on a serious misunderstanding of the facts.
2. The Employment Tribunal had power under rule 9(3) of the Employment Tribunals Regulations 1993 to proceed to dispose of the case in a party’s absence. The Tribunal considered the originating application, notice of appearance, the earlier appellate remittal and the documentary material available to it.
3. The Tribunal was entitled to balance the prejudice caused by postponement against the prejudice caused by proceeding. It was entitled to regard the absence of a medical certificate covering the day after the hearing, together with the absence of any adequate explanation for non-attendance, as insufficient justification for a further postponement.
4. Having proceeded in the appellant’s absence, the Tribunal was entitled to determine the constructive dismissal complaint on the material before it. Because the appellant gave no evidence in support of the complaint, the burden of proof was not satisfied. The Employment Appeal Tribunal had therefore correctly concluded that no point of law arose.

Permission to appeal was refused.

• Court of Appeal (Civil Division): application for permission to appeal refused on 15 May 2001: [2001] EWCA Civ 724.
• Employment Appeal Tribunal: appeal dismissed and permission to appeal refused on 19 January 2001.
• Employment Tribunal: following remittal, the constructive unfair dismissal complaint was dismissed in the appellant’s absence on 7 April 2000; an application for review was refused on 2 May 2000.