Osibanjo ETE & Co v Pinnock

An application for permission to appeal will be refused where the proposed grounds have no real prospect of success and no other compelling reason justifies allowing the appeal to proceed. An employment tribunal’s evidential and case-management decisions will not normally be disturbed where they were open to it on the circumstances. Fresh evidence must satisfy the Ladd v Marshall requirements and must be capable of having an important influence on the result. Serious doubts about the credibility of the new evidence may also justify refusing admission.

Solicitors appealed against findings that an employee had suffered sexual harassment and victimisation, and against an award for injury to feelings, aggravated damages, interest and costs. The Employment Appeal Tribunal allowed the appeal to proceed to a full hearing on quantum but dismissed the appeal on liability.

The employers renewed an application for permission to appeal against parts of the Employment Appeal Tribunal’s order. They challenged the tribunal’s findings on continuing harassment, the admission of evidence, the refusal to hear a late witness, and the proposed reliance on fresh evidence.

1. Application dismissed. The employers had not shown that the proposed appeal had a real prospect of success or any other compelling reason for allowing it to proceed.
2. The tribunal was entitled to find that the harassment constituted conduct extending over a period under section 76(6)(b) of the Sex Discrimination Act 1975. The complaints concerned conduct by partners and other staff, and the tribunal had found an atmosphere in which sexually suggestive comments appeared acceptable.
3. The tribunal was entitled to infer that the proposition involving sexual favours preceded the dismissal. The absence of dates in the originating application did not establish perversity, particularly since particulars had not been sought.
4. The fact that 25 per cent of the reason for dismissal was attributed to misconduct did not prevent the dismissal from being victimisation where the preponderant reason was the employee’s complaints about sexual harassment.
5. The admission of Ms Ahmed’s evidence was a case-management and evidential decision which the tribunal had considered and was entitled to make. The refusal to allow Mr Opara to give oral evidence was likewise a case-management decision open to the tribunal in the circumstances.
6. The proposed fresh evidence did not satisfy the Ladd v Marshall requirements. It was not likely to have an important influence on the result, related only to peripheral background matters, and raised serious credibility concerns because it was contained in an unsworn statement contradicting earlier sworn evidence.

Lord Justice Mance agreed with Lord Justice Peter Gibson’s reasons. The application was dismissed.

• Court of Appeal (Civil Division): application for permission to appeal dismissed.
• Employment Appeal Tribunal: liability appeal dismissed; appeal permitted to proceed to a full hearing on quantum.
• Employment Tribunal: complaint of sex discrimination and victimisation upheld; compensation and costs awarded.