Mahjoub v Initial Cleaning Services Ltd

In an appeal from an Employment Tribunal, the appellate court is concerned with errors of law, not with whether it would have made different findings of fact. It cannot alter or amend factual findings made after evidence has been heard. A rehearing may be ordered only where the tribunal’s decision discloses an error of law. A finding that an employee resigned rather than was dismissed is a finding of fact where the tribunal correctly directed itself. The possibility that another tribunal, or the appellate judge, might have assessed the evidence differently does not establish legal error. Permission to appeal should be refused where the proposed appeal has no real prospect of success.

Mr El Mahjoub claimed that Initial Cleaning Services Ltd had unfairly dismissed him, maintaining that he had been suspended rather than having resigned. The Employment Tribunal at Stratford found that he had resigned and dismissed the unfair dismissal claim, while awarding unpaid wages. The Employment Appeal Tribunal rejected challenges concerning late evidence and procedural irregularity, refused further evidence, and dismissed the appeal on 2 November 2001.

Mr El Mahjoub applied out of time for permission to appeal to the Court of Appeal and for an extension of time. The central issue was whether the proposed appeal disclosed an error of law with a real prospect of success, or merely sought a re-evaluation of the evidence and factual findings.

Disposition. Lord Justice Mummery refused permission to appeal and the application to extend time.

1. Permission to appeal could be granted only if the proposed appeal had a real prospect of success. The grounds of appeal were limited to questions of law. The Employment Tribunal was responsible for hearing the witnesses, examining the documents and deciding the facts.
2. The central issue before the Employment Tribunal was factual: whether Mr El Mahjoub had resigned or had been suspended and constructively dismissed. The Tribunal accepted the evidence of Ms Brechin and Mr Pearson and found that he had resigned. It had applied the law correctly.
3. An appellate court could not alter or amend those findings merely because aspects of the evidence were open to question, or because the appellate judge or another tribunal might have reached a different factual conclusion. A rehearing could be ordered only if the Tribunal had made an error of law.
4. The Employment Appeal Tribunal had also addressed the alleged procedural irregularity concerning the late production of a mobile telephone account and had found no unfairness or failure to do justice. It applied the appellate test for fresh evidence, namely whether the evidence could, with reasonable diligence, have been put before the Employment Tribunal. The further correspondence relied upon was unlikely to affect the outcome.
5. No error of law was identified. The proposed appeal therefore had no real prospect of success, and the application was refused.

• Court of Appeal (Civil Division): On 19 March 2002, the application for permission to appeal and for an extension of time was refused: [2002] EWCA Civ 422.
• Employment Appeal Tribunal: On 2 November 2001, the appeal was dismissed. The Tribunal rejected the procedural irregularity argument and refused the proposed new evidence.
• Employment Tribunal, Stratford: The Tribunal found that the claimant had resigned and dismissed the unfair dismissal claim. It awarded him £653.60 in unpaid wages.