Sukul-Lennard v Croydon Primary Care Trust

Where an appeal from an Employment Appeal Tribunal preliminary hearing raises procedural arguments which have not been examined in contested proceedings, the Court of Appeal may set aside the preliminary decision and direct a full hearing before the specialist tribunal. The EAT should ordinarily consider such arguments first where its knowledge of employment tribunal practice and procedure would assist their resolution. The Court of Appeal need not determine the substantive arguments before receiving that specialist judgment.

An Employment Tribunal struck out a racial discrimination application under rule 11(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 because the claimant had failed to comply with directions. The EAT refused to allow her appeal to proceed beyond a preliminary hearing.

The Court of Appeal granted limited permission concerning the applicability of rule 11(3), the safeguards governing a strike-out for breach of directions under rules 4(1) and 4(8), and the Tribunal's rejection of medical evidence supporting an adjournment. The respondent accepted that the appeal should be allowed so that those unresolved arguments could receive a contested hearing before the EAT. The question was whether the case should be remitted to the EAT or directly to the Employment Tribunal.

Appeal allowed unanimously. Peter Gibson LJ delivered the judgment, with which Mance and Longmore LJJ agreed.

1. The EAT's decision at the preliminary hearing was set aside. The claimant's appeal from the Employment Tribunal was directed to proceed to a full hearing before a differently constituted EAT.

2. The limited grounds permitted by the Court of Appeal were arguable. They concerned whether rule 11(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 applied when the claimant was represented; whether a strike-out for breach of directions under rules 4(1) and 4(8) required safeguards which had not been observed; and whether the Tribunal had material permitting it to reject the medical evidence. Those substantive grounds had not received a contested hearing before the EAT, and the Court of Appeal did not determine them.

3. The procedural issues were matters on which the specialist knowledge and experience of the EAT would assist the Court of Appeal. The approach in Grady v HM Prison Service [2003] EWCA Civ 527 was applicable: the appellate court should obtain a reasoned decision from the EAT before itself resolving issues dependent upon employment tribunal practice and procedure.

4. Direct remittal to the Employment Tribunal, as sought by reference to Anya v Oxford University [2001] ICR 847, was inappropriate. The respondent had not had an opportunity to present its arguments to the EAT, while the points originally advanced by the claimant differed from those for which permission had later been granted. A full EAT hearing would permit both sides to present their cases in contested proceedings.

1. Court of Appeal (Civil Division): Allowed the appeal unanimously, set aside the EAT's preliminary decision and directed a full hearing before a differently constituted EAT.
2. Employment Appeal Tribunal: On 5 November 2002, dismissed the claimant's appeal at a preliminary hearing without allowing it to proceed to a full hearing.
3. Employment Tribunal: By a decision sent to the parties on 11 December 2001, struck out the claimant's racial discrimination application for failure to comply with directions.