Wilson v Sheffield City Council

A procedural irregularity does not automatically require an appeal to be allowed or a case to be reheard. Where the appellate tribunal is satisfied that the result was unarguably correct and would have been the same without the irregularity, refusing a rehearing may be proportionate. The assessment must still respect the importance of procedural fairness. The Court of Appeal applied that approach where an employment tribunal had apparently prevented the claimant’s chosen representative from speaking, but the substantive claims could not realistically have succeeded on the established facts.

Mr Peter Wilson sought permission to appeal against the Employment Appeal Tribunal’s dismissal of his appeal from the dismissal of his claims for victimisation and unfair dismissal. The Employment Tribunal had found that he breached the residence requirement of his caretaker employment and had falsified time sheets. The Employment Appeal Tribunal assumed that his wife had wrongly been prevented from representing him, but concluded that the procedural defect could not have affected the outcome. It also rejected an allegation of apparent bias arising from the tribunal chairman’s earlier involvement in an unrelated case concerning Mr Wilson. The central issue was whether the procedural irregularity required a rehearing.

1. Applications refused. The application for permission to appeal and the application for an extension of time were dismissed.
2. The Court accepted that there had apparently been a procedural irregularity: Mrs Wilson had been permitted to give evidence but had not been allowed to speak or act as her husband’s representative. Procedural fairness remained important, but the irregularity did not automatically require the proceedings to be reheard.
3. Applying Bache v Essex County Council [2001] IRLR 251, the appropriate response to a procedural error should be proportionate. An appeal need not succeed where the court is sure that the result was unarguably right and that the outcome would have been the same without the error.
4. That test was satisfied. The victimisation claim had no realistic prospect because the dismissal decision had been made and confirmed through independent disciplinary and appeal processes. The unfair dismissal claim likewise had no realistic prospect, given the seriousness of the charges and Mr Wilson’s failure to explain the apparent falsification of his time sheets.
5. The earlier involvement of the tribunal chairman in an unrelated disability discrimination hearing created no real danger of bias. The Employment Appeal Tribunal had therefore made no error of law.

• Court of Appeal (Civil Division): Permission to appeal against the Employment Appeal Tribunal’s decision dated 30 January 2002 was refused, and the application for an extension of time was also refused.
• Employment Appeal Tribunal: Dismissed the appeal from the Employment Tribunal’s dismissal of the victimisation and unfair dismissal claims.
• Employment Tribunal: Dismissed the claims, finding the dismissal fair and not motivated by victimisation.