Asselman (Nee Coxon) v Rank Xerox UK Ltd

Permission to appeal from the Employment Appeal Tribunal requires an identifiable point of law. A challenge to the scope of disclosure ordered for an appeal, or to the tribunal’s assessment of which witnesses’ evidence bears on the identified issue, is procedural or evidential rather than a question of law. The Court of Appeal will not revisit an approved transcript by relying on a manuscript note without appropriate steps to examine the recording. The Employment Appeal Tribunal is the proper body to decide what material it needs to conduct its appeal fairly and may order further disclosure if necessary. Where no legal error is shown, permission is refused.

The applicant’s employment claims for unfair dismissal, sex discrimination, victimisation and equal pay were dismissed by the London (North) Employment Tribunal on 20 July 1999. At a preliminary hearing on 9 March 2001, the Employment Appeal Tribunal permitted appeals concerning unfair dismissal, victimisation and equal pay to proceed, but excluded the sex discrimination complaints. Permission to appeal that exclusion was refused by Keene LJ on 11 October 2001.

The present application concerned an interlocutory decision about the scope of the Employment Tribunal chairman’s notes of evidence to be disclosed for the unfair-dismissal appeal. The Employment Appeal Tribunal dismissed the applicant’s appeal from the Registrar’s amendment of the disclosure order. The central question was whether any arguable point of law arose from the transcript, the completeness of the disclosed notes, or the scope of the procedural direction.

Application refused. The Court of Appeal held that no arguable point of law had been identified.

1. Statutory threshold. Under section 37 of the Employment Tribunals Act 1996, an appeal to the Court of Appeal from the Employment Appeal Tribunal lies only on a point of law. The application therefore had to disclose a legal error, rather than invite reconsideration of evidential or procedural matters.
2. Transcript and scope of the order. The approved transcript of the preliminary hearing clearly limited disclosure to evidence relevant to the perversity challenge to the finding that the dismissal was fair. The applicant could not rely on a manuscript note to go behind the transcript. Any challenge based on the recording required an application to the Employment Appeal Tribunal for access to and examination of it. The Recorder’s later clarification independently confirmed the limited scope of the direction.
3. Completeness of the notes. The Employment Tribunal and the Employment Appeal Tribunal concluded that the evidence of Mr Madison did not concern prior notification of the disciplinary charges or the employer’s findings about gross misconduct. Whether the Employment Appeal Tribunal had informed itself correctly, or whether the chairman had failed to comply with the amended order, did not disclose a point of law. The latter allegation also required cogent supporting evidence.
4. Procedural discretion. Deciding what material was needed to conduct the appeal fairly was pre-eminently a matter for the Employment Appeal Tribunal. The Court of Appeal had no power to interfere with those procedural directions in the absence of legal error and would not have interfered even if such power existed. The Employment Appeal Tribunal retained power to require further disclosure during the substantive appeal if relevant matters emerged.

The formal order was that the application for permission to appeal was refused.

• Court of Appeal (Civil Division) — On 1 July 2002, permission to appeal from the Employment Appeal Tribunal was refused: [2002] EWCA Civ 971.
• Employment Appeal Tribunal — In March 2002, dismissed the applicant’s interlocutory appeal from the Registrar’s amendment of the order concerning disclosure of the chairman’s notes of evidence.
• Employment Appeal Tribunal — At a preliminary hearing on 9 March 2001, allowed the appeals concerning unfair dismissal, victimisation and equal pay to proceed to a full hearing, but held that the sex discrimination complaints disclosed no arguable point of law.
• Employment Tribunal, London (North) — Dismissed the complaints on 20 July 1999 after a hearing lasting several days.