British Medical Association v Chaudhary

Permission to appeal should be granted where the proposed appeal has a real prospect of success. The threshold is high, particularly where the proposed grounds challenge an employment tribunal decision as perverse or inadequately reasoned. A proposed appeal may properly question whether the tribunal identified the particular claims and issues necessary to evaluate an alleged failure to provide assistance. Where delay in determining permission would hold up proceedings below, the appeal may be expedited. Case-management decisions concerning related proceedings remain matters for the tribunal or appeal tribunal conducting them.

The British Medical Association sought permission to appeal against a preliminary decision of the Employment Appeal Tribunal on 30 April 2002. That tribunal had decided that the BMA’s appeal against an Employment Tribunal finding of indirect race discrimination could proceed only on some grounds.

The underlying finding concerned an alleged failure to provide support and assistance for discrimination claims involving the Post-Graduate Dean at Portsmouth, the Specialist Training Authority and the Royal College. The application to the Court of Appeal concerned liability only. The central issue was whether the excluded grounds had no real prospect of success.

1. Permission granted. Lord Justice Mummery was satisfied, on reading the skeleton argument and grounds of appeal, that the proposed appeal had a real prospect of success.
2. The full appeal would determine whether the Employment Appeal Tribunal was correct to exclude certain grounds because they lacked a real prospect of success. The threshold was high. The principal proposed grounds alleged perversity, failure to give adequate reasons, and failure to identify the particular discrimination claims against which the alleged failure to provide assistance had to be evaluated.
3. The court did not determine the merits of those grounds. It considered that the permission appeal should be heard on an expedited basis because the pending appeal in the Employment Appeal Tribunal could not proceed substantively until the permissible grounds were known.
4. Other related appeals, including proceedings involving the Specialist Training Authority, the Secretary of State for Health and the Royal College, were not a reason to defer this appeal. The organisation of the liability and remedies appeals, including whether they should be heard together, was for the Employment Appeal Tribunal. The Court of Appeal noted that a separate appeal concerned the remedies award, but made no determination on it.

The application was allowed. Permission to appeal was granted, the hearing was expedited, and it was listed for half a day. The parties remained free to make further applications to the Civil Appeals Office concerning the hearing arrangements.

1. Court of Appeal (Civil Division): permission to appeal granted against the Employment Appeal Tribunal’s preliminary decision; hearing expedited and listed for half a day.
2. Employment Appeal Tribunal: at a preliminary hearing on 30 April 2002, directed that the appeal could proceed only on some grounds.
3. Employment Tribunal, Manchester: found indirect race discrimination in a decision dated 24 September 2001.