Mustofa v Newham Healthcare NHS Trust

Permission to appeal requires a real prospect of success and must concern a question of law. Where the proposed appeal challenges a discretionary refusal by the Employment Appeal Tribunal to extend time, permission requires a real prospect of showing that the discretion was exercised plainly wrongly, according to an erroneous legal principle, or by taking account of irrelevant matters or overlooking relevant matters. A court will not interfere where the relevant evidence and factors were considered and the applicable principles were correctly applied.

The applicant’s unfair-dismissal claim was rejected by an Employment Tribunal as one day out of time. The Employment Appeal Tribunal refused an extension of time for appealing against that decision, finding that the explanation for the delay did not justify treating the case as exceptional. The applicant sought permission to appeal to the Court of Appeal, alleging errors in the application of the principles in Abdelghafar and Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111.

The central questions were whether the proposed appeal had a real prospect of success and whether the Employment Appeal Tribunal’s discretionary decision disclosed an appealable error of law.

1. Application dismissed. Permission to appeal was refused because the proposed appeal had no real prospect of succeeding.
2. Permission to appeal could be granted only where the proposed appeal had a real prospect of success and raised a question of law.
3. An appeal against the Employment Appeal Tribunal’s discretionary refusal to extend time could succeed only if the decision was plainly wrong, resulted from an erroneous application of a legal principle, or involved taking account of irrelevant matters or leaving out of account relevant matters.
4. The President of the Employment Appeal Tribunal had considered the relevant evidence and had correctly applied the principles stated in Abdelghafar, as approved by the Court of Appeal in Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111. The President had taken proper account of all relevant factors, including the explanation for delay and the merits of the proposed appeal.
5. There was therefore no realistic basis for contending that the discretion had been exercised plainly wrongly or that the decision contained an error of law. The order refusing permission to appeal was made.

• Employment Tribunal: The unfair-dismissal claim was dismissed as out of time, and no extension of time was granted. The discrimination and victimisation claims were directed to proceed.
• Employment Appeal Tribunal: The Registrar refused an extension of time for appealing. The President dismissed the applicant’s appeal against that refusal.
• Court of Appeal (Civil Division): Permission to appeal was refused and the application was dismissed.