Abegaze v British Telecommunications Plc

A renewed application for permission to appeal must show a real prospect of success. Appeals lie only on points of law, and an appellate court will not interfere with a discretionary decision unless the lower tribunal made a legal error, such as taking irrelevant matters into account or failing to consider relevant matters.

Extending the six-week period for appealing requires a good reason for the delay and is reserved for exceptional cases. A timely appeal against a later substantive decision does not, without more, permit an earlier decision to be reopened. Permission was refused.

Dr Abegaze brought Employment Tribunal proceedings alleging that British Telecommunications Plc had discriminated against him on racial grounds when it failed to appoint him to a research position.

The Employment Tribunal initially found in his favour after BT was debarred from defending. On review, the Tribunal set that decision aside and restored BT to the proceedings. Following a substantive hearing, the Tribunal dismissed Dr Abegaze’s application.

Dr Abegaze appealed to the Employment Appeal Tribunal against both the review decision and the later substantive decision. The President refused to extend time for challenging the earlier review decision, while allowing the appeal against the later decision to proceed. The issue before the Court of Appeal was whether permission should be granted to challenge that refusal.

The renewed application for permission to appeal was refused.

1. Permission and scope of appeal. The relevant question was whether the proposed appeal had a real prospect of success. Appeals may be brought only on points of law, not to reargue factual matters.
2. Extension of time. The Employment Appeal Tribunal had a discretion to extend the six-week period for appealing. The applicant had to provide a good reason for the delay, and the discretion was reserved for exceptional cases. The fact that an appeal against the later substantive decision had been lodged in time did not make the earlier appeal timely or justify reopening the earlier review decision.
3. Review of discretion. An appeal against the exercise of a discretion could succeed only if the decision-maker had committed a legal error, including by taking irrelevant matters into account or leaving relevant matters out of account. No such error had been shown in the President’s refusal to extend time. The material relied on by Dr Abegaze did not establish a sufficient excuse or an exceptional case.
4. Dr Abegaze could continue his appeal in the Employment Appeal Tribunal against the Employment Tribunal’s later substantive decision, but could not use that appeal to reopen the earlier exercise of the Tribunal’s review power. The application was refused.

• Court of Appeal (Civil Division) — The renewed application for permission to appeal against the refusal to extend time was refused: [2001] EWCA Civ 74.
• Employment Appeal Tribunal — President Lindsay J refused to extend time for appealing the earlier review decision, but permitted the appeal against the later substantive decision to proceed.
• Employment Tribunal — The Tribunal reviewed and set aside its earlier decision in Dr Abegaze’s favour, restored BT to the proceedings, and later dismissed the discrimination application.