Matthews v Tesco Stores Ltd

On an appeal from an Employment Tribunal, the Employment Appeal Tribunal and Court of Appeal are concerned with errors of law, not with re-weighing facts. Findings made by the Employment Tribunal are ordinarily final. A disagreement with the tribunal’s assessment of evidence, or with its conclusion that conduct did not amount to a fundamental breach of the employment contract, is not itself a ground for permission to appeal. Grounds outside the case advanced below cannot be introduced on an application for permission. Alleged procedural defects must show material injustice or legal error; complaints about documents or witnesses fail where adequate opportunity was available or the evidence could not affect an issue requiring proof. Permission was therefore refused.

Matthews v Tesco Stores Ltd concerned a complaint of constructive dismissal following workplace bullying, an internal complaints process and subsequent CCTV surveillance. The Employment Tribunal at Shrewsbury dismissed the complaint in January 2001. The Employment Appeal Tribunal, on 7 September 2001 and using its preliminary issue procedure, dismissed the appeal on the basis that no question of law arose. Mr Matthews sought permission to appeal to the Court of Appeal, alleging errors concerning the evidence, late disclosure of documents, the conduct of Tesco’s solicitor, witness orders and the surveillance. The central issue was whether those matters disclosed an error of law sufficient to justify permission to appeal.

Application refused. Lord Justice Sedley held that the proposed appeal disclosed no question of law justifying permission.

1. An appeal from an Employment Tribunal requires a point of law. Questions of fact are determined by the Employment Tribunal, which is ordinarily the first and last tribunal responsible for ascertaining them. A party’s disagreement with the tribunal’s assessment of evidence or factual conclusions is therefore not, by itself, an appealable error.
2. The case advanced below concerned the disciplinary and complaints procedure and the subsequent surveillance, not the underlying bullying itself. The proposed ground based on the bullying was consequently not admissible on the permission application. The bullying had in any event been accepted as having occurred and was not an issue requiring proof.
3. The late production of Tesco’s documents did not establish material injustice. Mr Matthews had been given time to consider them, including further time overnight. The allegation that Tesco’s solicitor had lied merely reflected disagreement with the client’s case and the Employment Tribunal’s factual conclusions, rather than a legal error.
4. The refusal to order witnesses did not raise an arguable error of law where the witnesses could only address the bullying, which was not in issue, and could not advance the case on the matters actually relied upon.
5. The judge added, as an observation rather than the basis of the decision, that permission would expose Mr Matthews to the ordinary costs risk in the Court of Appeal. The permission procedure could protect litigants from incurring unaffordable liabilities, but the application was refused because no sufficient legal ground existed.

Order: application refused.

1. Court of Appeal (Civil Division): In [2002] EWCA Civ 202, permission to appeal from the Employment Appeal Tribunal was refused.
2. Employment Appeal Tribunal: On 7 September 2001, the appeal from the Employment Tribunal was dismissed under the preliminary issue procedure because no question of law arose.
3. Employment Tribunal: Sitting at Shrewsbury, the tribunal dismissed the constructive dismissal complaint in January 2001.