Malkan v West Midlands Regional Health Authority & Anor

Appeals from employment tribunals are confined to questions of law arising from the proceedings or the tribunal’s decision. Fresh evidence, without an identifiable legal error, cannot convert a factual challenge into a permissible appeal. The statutory appeal route is distinct from the wider powers available under the CPR. A party seeking permission must show a real prospect of success. Where the complaint concerns a tribunal’s discretionary refusal to review an old decision, appellate intervention requires a misdirection in law or a decision that is plainly wrong.

Dilip Malkan sought permission to appeal from the Employment Appeal Tribunal in proceedings arising from the dismissal of his claims by the Shrewsbury Employment Tribunal on 30 January 1996. He also sought permission to rely on fresh evidence said to show that material evidence had been withheld.

At an earlier hearing on 8 February 2002, the Court of Appeal adjourned the application so that he could seek a review by the Employment Tribunal. The tribunal chairman refused an extension of time and declined to reopen the case on 15 May 2002, principally because of the substantial delay and the difficulty of conducting a fair rehearing. The central issue was whether the fresh evidence disclosed a question of law giving the Court of Appeal jurisdiction and a real prospect of a successful appeal.

Application refused. Lord Justice Mummery held that the proposed appeal disclosed no question of law and therefore had no real prospect of success.

1. Appeals from employment tribunals are limited by statute to questions of law arising from the proceedings or the tribunal’s decision. Findings of fact cannot be challenged merely because later evidence is said to undermine them. Fresh evidence does not itself create a question of law unless it reveals an error of law in the original decision.
2. The statutory employment appeal jurisdiction is different from an appeal under the CPR. The wider discretion that may be available in ordinary civil proceedings to admit fresh evidence or order a rehearing cannot be used to enlarge the jurisdiction conferred in employment cases.
3. There may be exceptional cases in which fresh evidence justifies remitting an employment matter for rehearing. This was not such a case. The applicant’s contention that the original decision was based on incomplete evidence did not identify a legal error.
4. The Court adopted the chairman’s reasons for refusing a late review. The passage of time, destruction of the tribunal papers and notes, loss of recollection, and uncertainty about the availability of witnesses created serious concerns about whether a fair review could be conducted.
5. The application for indemnity costs was refused. The applicant was ordered to pay costs on the standard basis, subject to detailed assessment.

• Court of Appeal (Civil Division): The court adjourned the permission application on 8 February 2002 to enable an application for review by the Employment Tribunal. On 23 July 2002 it refused permission and the fresh-evidence application.
• Employment Tribunal: The Shrewsbury Employment Tribunal dismissed the claims on 30 January 1996. A later application for review was refused on 15 May 2002 because it was out of time and a fair review was considered impracticable.
• Employment Appeal Tribunal: The judgment records that the applicant had unsuccessfully pursued proceedings before the Employment Appeal Tribunal, but gives no citation or date for that decision.