Murphy v Quality Commissioning Limited

Permission to appeal from an employment tribunal requires a real prospect of success. Employment appeals are confined to questions of law, although a procedural irregularity may raise such a question. The irregularity must, however, have consequences sufficiently serious to amount to an error of law or cause material injustice.

Under regulation 9 of the employment tribunal regulations, a tribunal has a wide discretion to conduct proceedings in the manner it considers suitable for clarifying the issues and handling the case justly. It may depart from its own procedural directions, although orders should be complied with and non-compliance may properly attract criticism. An unsatisfactory procedure does not justify appellate intervention where the tribunal’s decision caused no material injustice and the proposed appeal has no real prospect of success.

Mr Patrick Murphy brought an unfair dismissal claim against his former employer, Quality Commissioning Limited. The Employment Tribunal dismissed the claim in extended reasons dated 9 June 2000, finding that the dismissal resulted solely from genuine redundancy and that the health and safety provisions did not arise.

The Employment Appeal Tribunal dismissed his appeal on 23 November 2001. Mr Murphy then applied to the Court of Appeal for permission to appeal, alleging that late documents, unexpected witnesses, missing witness statements and breaches of case-management directions had denied him a fair hearing. The central issue was whether those procedural failures gave rise to an appealable error of law and a real prospect of success.

Application refused. Lord Justice Mummery refused permission to appeal.

1. On an application for permission, the court had to be satisfied that the proposed appeal had a real prospect of success. Appeals from employment tribunals were limited to questions of law. A procedural irregularity could constitute a question of law, but an irregularity did not automatically amount to an appealable error.
2. Regulation 9 of the 1993 regulations gave an employment tribunal a wide discretion. The tribunal was not bound by ordinary court rules on admissibility and could conduct the hearing in the manner it considered most suitable for clarifying the issues and handling the proceedings justly. That discretion could include departing from the tribunal’s own earlier directions.
3. Orders were made to be complied with, and the Employment Tribunal was rightly criticised for failing to address Quality Commissioning’s non-compliance with directions concerning documents and witness statements. Nevertheless, the appellate question was whether the failure to enforce those directions or grant an adjournment had caused such serious disadvantage as to amount to an error of law or produce injustice.
4. On the material before the court, the procedural defects had caused difficulties for Mr Murphy but had not caused the necessary material injustice. The Employment Tribunal was entitled to conclude that the reason for dismissal was redundancy rather than health and safety matters.
5. That finding meant that the health and safety provisions in section 100 of the Employment Rights Act 1996 did not arise. Since Mr Murphy had not completed the ordinary one-year qualifying period, his unfair dismissal claim could not succeed. The application for permission to appeal was therefore refused.

• Court of Appeal (Civil Division): On 12 March 2002, Lord Justice Mummery refused permission to appeal: [2002] EWCA Civ 416.
• Employment Appeal Tribunal: On 23 November 2001, dismissed Mr Murphy’s appeal from the Employment Tribunal.
• Employment Tribunal: In extended reasons dated 9 June 2000, unanimously dismissed the unfair dismissal claim.