Simms & Ors v Transco Plc

On a renewed application for permission to appeal, the court may adjourn the application where the lower tribunal’s reasoning is materially ambiguous and the outcome may be affected by parallel cases remitted for reconsideration. The court should avoid prejudicing those remitted hearings and may reconsider the proposed grounds after their outcome is known. Similar cases should receive consistent treatment, but each case remains fact-sensitive.

This was a renewed application for permission to appeal by Mrs Tomkinson, one of several unsuccessful appellants in related proceedings before the Employment Appeal Tribunal. The underlying claims concerned compulsory early retirement and alleged sex discrimination.

The Employment Tribunal found that Mrs Tomkinson knew of the possibility of making a claim before late June 1996 and had not acted promptly. Its reasoning was unclear, however, as to whether the relevant delay ran from June 1996 or from her return to work in January 1988. Other cases in the batch had been remitted for reconsideration. The central issue was whether Mrs Tomkinson’s application should be determined before those remitted cases were decided.

The renewed application for permission to appeal was adjourned unanimously.

1. The Employment Tribunal’s reasoning concerning the date on which Mrs Tomkinson became aware of the possibility of a claim was materially ambiguous. The reference to awareness before late June 1996 appeared inconsistent with the tribunal’s reference to her return to work in January 1988.
2. The Employment Appeal Tribunal had treated the shorter period, between late June and 30 August 1996, as sufficient to support a tenable decision. The Court of Appeal considered that the significance of that period could depend on comparison with the other cases in the batch.
3. There was a legitimate interest in similar cases being treated consistently. That interest had to be reconciled with the principle that each case must be decided on its own facts.
4. The least risky course was to allow the remitted hearings to proceed without being affected by Mrs Tomkinson’s case, and then to reconsider her proposed grounds of appeal if appropriate in light of the decisions reached in those cases.

The court therefore stood the application over. It made no final determination on permission to appeal.

• Employment Tribunal: found that Mrs Tomkinson had become aware of the possibility of making a claim before late June 1996 and had not acted promptly.
• Employment Appeal Tribunal: treated the period from late June to 30 August 1996 as sufficient to support a tenable decision, while remitting most related cases for reconsideration.
• Court of Appeal (Civil Division): adjourned the renewed application for permission to appeal pending the remitted hearings. [2001] EWCA Civ 921