Apelogun-Gabriels v London Borough Of Lambeth & Anor

On a proposed second appeal from the Employment Appeal Tribunal, the Court of Appeal’s role is confined to points of law. An Employment Tribunal is the tribunal of fact. Disagreement with its assessment of witnesses or workplace evidence does not become a legal question merely because it is labelled perversity, irrationality, unreasonableness or illegality. The Court of Appeal will not conduct a rehearing where the findings were open to the tribunal on the evidence. Permission should be refused where the proposed appeal raises no legal argument fit for consideration and has no real prospect of success.

An employee of Lambeth challenged workplace directions from a temporary management accountant about answering telephone calls and using the internet during working hours. The Employment Tribunal heard oral evidence, rejected his account, found that the management accountant had authority in relation to routine matters, and ordered him to pay £500 costs. The Employment Appeal Tribunal, by order dated 31 May 2002, dismissed his appeal, holding that the Employment Tribunal was entitled to make its findings and had made no error of law. The appellant sought permission for a further appeal. The central issue was whether his grounds raised a point of law rather than an attempt to reopen factual findings.

Disposition. Lord Justice Brooke dismissed the application for permission to appeal.

1. Scope of the proposed second appeal. The same strict test applicable to second appeals from courts does not apply in the same way to second appeals from the Employment Appeal Tribunal. Nevertheless, the Court of Appeal is an inexpert appeal court in employment matters and is concerned with points of law. It must bear in mind the workplace experience of the Employment Tribunal and Employment Appeal Tribunal.
2. Factual findings. The Employment Tribunal is the tribunal of fact. There is no appeal against its decisions on questions of fact. An appellant cannot convert disagreement with factual findings into a point of law simply by alleging perversity, irrationality, unreasonableness or illegality.
3. Application to the case. The Employment Tribunal had heard the relevant witnesses and was entitled, on the evidence, to prefer Lambeth’s witnesses and to find that the management accountant had authority to require the appellant to answer the telephone and to enquire about inappropriate internet use. The Employment Appeal Tribunal was correct that the appellant was seeking a re-run of factual issues.
4. The proposed grounds raised no point of law fit for consideration by the Court of Appeal. The application was therefore dismissed.

1. Court of Appeal (Civil Division). Application for permission to bring a proposed second appeal dismissed: [2002] EWCA Civ 1619.
2. Employment Appeal Tribunal. Order dated 31 May 2002 dismissing the appellant’s appeal from the Employment Tribunal.
3. Employment Tribunal. Decision dated 16 October 2001, making findings against the appellant on workplace authority and conduct and ordering payment of £500 costs.