Cape Industrial Services Ltd v Patricia Ambler

At the preliminary stage of an employment appeal, a proposed ground should proceed to a full hearing if it raises a reasonably arguable point of law. This includes a challenge to whether factual findings establish a contractual breach, and a challenge to whether the tribunal applied the correct legal approach to an employer’s handling of a grievance. The court should not reject such grounds simply as attempts to reargue facts where they raise questions of contractual construction or legal misdirection. The merits remain for the full appeal.

Cape Industrial Services Ltd appealed from a preliminary order of the Employment Appeal Tribunal. The EAT had permitted only one of Cape’s eleven grounds of appeal to proceed to a full hearing and dismissed the remainder. Cape sought permission for two further grounds concerning the removal of staff responsibilities from Patricia Ambler and the handling of her grievance.

The Employment Tribunal had upheld Ambler’s complaint of unfair constructive dismissal. The central issue before the Court of Appeal was whether the two rejected grounds raised reasonably arguable points of law.

1. Appeal allowed. The governing threshold for allowing an appeal ground to proceed to a full hearing was whether it raised a reasonably arguable point of law, as stated in paragraph 14 of the Employment Appeal Tribunal Practice Direction.
2. The ground concerning staff responsibilities was reasonably arguable. The Employment Tribunal had found that Ambler’s personnel role included responsibility for two employees and that removing that responsibility was a fundamental breach of contract. Cape was entitled to argue that the Tribunal had not identified a contractual term requiring those responsibilities, and that the factual findings did not establish such a term. The Court of Appeal therefore disagreed with the EAT’s view that the argument merely reargued facts.
3. The ground concerning the grievance was also reasonably arguable. Cape could argue that the Tribunal had wrongly treated the handling of the grievance as a breach of the implied term of trust and confidence, although Ambler had not complied with the contractual grievance procedure. The issue included whether the Tribunal had effectively required a procedure different from the contractual one and whether the conduct amounted to a fundamental breach.
4. Cape’s appeal to the EAT was directed to proceed on those two additional grounds, in addition to the ground already permitted by the EAT concerning the Tribunal’s failure to determine and explain whether the dismissal was unfair.

Lady Justice Arden and Mr Justice Cresswell agreed. There was no order as to costs.

1. Court of Appeal (Civil Division): allowed Cape’s appeal from the EAT’s preliminary order and directed that the EAT appeal proceed on two additional grounds, alongside the ground already permitted.
2. Employment Appeal Tribunal: on 13 November 2001, permitted one ground concerning the Employment Tribunal’s determination and reasons on unfair dismissal to proceed to a full hearing, while dismissing the remaining grounds.
3. Employment Tribunal, Leeds: decision sent on 13 July 2001; upheld Ambler’s complaint that she had been unfairly dismissed.