Lardier v British Gas Research & Technology Plc

Permission to appeal should be refused where no proposed ground has a real prospect of success and no other compelling reason justifies an appeal. A tribunal cannot properly litigate issues which have been conceded, particularly where the concession provides the maximum available compensation. Reinstatement or re-engagement may be refused where the remedy sought is unavailable or inappropriate, including where trust and confidence have completely broken down. A tribunal may award costs up to the permitted limit where a party has acted unreasonably. Issues finally determined by an earlier unappealed decision cannot be reopened.

Brigitte Lardier sought permission to appeal from the Employment Appeal Tribunal’s dismissal of her appeal against an Employment Tribunal decision. The employer had conceded unfair dismissal and breach of contract and agreed to pay the maximum compensation available under the applicable statutory limits. The Employment Tribunal refused reinstatement or re-engagement, ordered £500 costs, and treated a redundancy payment as offsetting the basic award. The EAT found no arguable point of law and refused permission. Lardier advanced nine grounds concerning alleged procedural unfairness, bias, earlier EAT decisions, costs, compensation, and European law.

1. Application refused. Lord Justice Peter Gibson held that none of the proposed grounds had a real prospect of success and no other compelling reason had been shown for allowing the appeal to proceed.
2. The employer’s concessions meant that the applicant had obtained all compensation available for unfair dismissal and breach of contract. The Tribunal could not properly allow a conceded case to be litigated. Its reasons for refusing reinstatement or re-engagement were cogent and unassailable. They included the inability to order appointment to the higher grade sought and the complete breakdown of trust and confidence.
3. The applicant could not reopen matters which the EAT had expressly excluded from the remitted hearing, including redundancy, sex discrimination and action short of dismissal. The earlier EAT decisions had not been appealed. A proposed challenge to the EAT’s decision of 11 October 1999 was also not in the appellant’s notice and was far too late.
4. The Tribunal could not properly hear the alternative contractual redeployment argument after breach of contract had been conceded and maximum compensation agreed. Section 153 of the Trade Union and Labour Relations (Consolidation) Act 1992 did not provide an additional award; it treated qualifying dismissals as unfair for Part X of the Employment Rights Act 1996, under which the maximum compensation had already been conceded.
5. There was no perversity in the £500 costs order. The Tribunal had discretion to award costs up to that amount where, in its opinion, a party had acted unreasonably. Nor was there a basis to challenge the set-off of the redundancy payment against the basic award, since the applicant had been put on notice of the employer’s reliance on that payment.
6. No identifiable point of European law or applicable provision requiring a reference to the European Court of Justice had been shown.

• Court of Appeal (Civil Division): permission to appeal refused on 14 June 2001; [2001] EWCA Civ 929.
• Employment Appeal Tribunal: dismissed the appeal from the Employment Tribunal and refused permission to appeal.
• Employment Tribunal: refused reinstatement or re-engagement, ordered £500 costs, and made the relevant basic-award set-off.