Akram v Switchgear & Instrumental Ltd & Anor

Permission to appeal from an Employment Appeal Tribunal decision should be refused where the proposed grounds identify no arguable error of law and the appeal therefore has no real prospect of success. The Court of Appeal does not reopen the Employment Tribunal’s factual findings or merits merely because the disappointed party disagrees with them. Allegations outside the tribunal’s jurisdiction, or matters that do not demonstrate an error of law in the decision or procedure, do not justify permission.

An employee brought wide-ranging claims against his employer, including unfair dismissal, race discrimination, and detriment for trade union and health and safety activities. The Employment Tribunal struck out some allegations as outside its jurisdiction and dismissed the remaining claims, finding that the dismissal followed serious sexual harassment and was fair and unrelated to the other complaints.

The Employment Appeal Tribunal dismissed the employee’s appeal in his absence, finding no arguable error of law. He then applied to the Court of Appeal for permission to appeal. The central issue was whether his grounds disclosed an error of law or any real prospect of success.

Lord Justice Mummery refused permission to appeal.

1. The application was considered on the papers because the applicant was absent when it was called at 10.30 am and again at 11.45 am. No communication seeking an adjournment had been received by the Civil Appeals Office. A fax received after judgment repeated matters already advanced and did not justify changing the conclusion.
2. An appeal from an Employment Tribunal decision could succeed only if the applicant demonstrated an error of law. The Court of Appeal therefore did not reassess the tribunal’s factual findings or its evaluation of the dismissal on the merits.
3. The Employment Tribunal had found that the dismissal resulted solely from serious sexual harassment. It had rejected the allegations that the dismissal or other treatment was motivated by race, health and safety complaints, or trade union membership. Lord Justice Mummery agreed with the Employment Appeal Tribunal that no arguable error of law appeared in those conclusions or in the procedure adopted.
4. The complaints about allegations struck out as outside the Employment Tribunal’s jurisdiction, and other matters not previously raised, did not disclose an error of law. Any fresh proceedings remained subject to questions of time limit.
5. The application had no real prospect of success and was dismissed. Any application to reinstate the permission application would require the applicant to attend or be represented by someone able to make oral submissions.

1. Court of Appeal (Civil Division): on 15 May 2001, refused permission to appeal in [2001] EWCA Civ 728.
2. Employment Appeal Tribunal: on 24 January 2001, dismissed the appeal from the Employment Tribunal in the applicant’s absence.
3. Employment Tribunal: following a hearing in May 2000, dismissed the employee’s claims after striking out certain allegations as outside its jurisdiction.