Bewry v Cumbria County Council

An appellate court will not entertain grounds that were not advanced before the lower appellate tribunal. An employee is not denied a fair disciplinary process where he had an opportunity to answer the allegations at the disciplinary hearing, or at a subsequent internal appeal conducted as a rehearing, even if he chose not to attend the first hearing. Decisions on public funding and adjournments are matters for the relevant domestic procedures and tribunal discretion, subject to established appellate standards. Delay in issuing reasons does not, without more, establish unfairness. Permission to appeal requires a real prospect of success on an arguable error of law.

The applicant challenged decisions of an Employment Tribunal concerning complaints of health and safety detriment, unfair dismissal and unlawful deductions from wages. The Employment Tribunal rejected the complaints after a hearing which the applicant did not attend. The Employment Appeal Tribunal dismissed his appeal on 10 April 2002.

On a renewed application, the applicant alleged inadequate investigation of disciplinary allegations, denial of legal funding and a fair hearing, refusal of an adjournment, delay in promulgating the Employment Tribunal’s decision, bias, unreasonable findings and factual inaccuracies. The central questions were whether any ground disclosed an arguable error of law and whether grounds not raised before the Employment Appeal Tribunal could be advanced in the Court of Appeal.

1. Application refused. The Court of Appeal, comprising Lord Justices Keene and Buxton, unanimously concluded that there was no prospect of a successful appeal from the Employment Appeal Tribunal.
2. The alleged failure to apply the reasonable-investigation requirement associated with British Home Stores v Burchell [1980] ICR 303 did not establish an arguable error. The applicant had been given an opportunity to answer the disciplinary allegations at a hearing which was postponed twice at his request. Although he did not attend the eventual hearing, he attended an internal appeal which operated as a rehearing, lasting about five days, with witnesses called and cross-examined. He therefore had a sufficient opportunity to put his case.
3. The refusal of public funding did not, on these facts, deprive the applicant of a fair hearing under Article 6.1 of the European Convention on Human Rights. Public funding remained subject to the domestic legal-aid regime, and the applicant had presented his case fully in writing and had demonstrated an ability to represent himself.
4. The refusal of an adjournment on medical grounds was a discretionary case-management decision. The Employment Appeal Tribunal had not acted perversely or otherwise clearly wrongly.
5. Grounds alleging bias, unreasonable factual findings and factual inaccuracies had not been raised before the Employment Appeal Tribunal. The Court of Appeal would not permit points to be saved for a later appellate stage, since that would undermine the appellate structure. This approach was consistent with Hennessy v Craigmyle Ltd [1986] IRLR 300.
6. The delay in issuing the Employment Tribunal’s extended reasons did not warrant further consideration. The Employment Appeal Tribunal had dealt adequately with the point, and its reasoning was endorsed.

Order: application refused with a legal aid assessment.

• Court of Appeal (Civil Division): Renewed application for permission to appeal refused.
• Employment Appeal Tribunal: Appeal dismissed on 10 April 2002.
• Employment Tribunal: Complaints concerning health and safety detriment, unfair dismissal and unlawful deductions from wages rejected.