Vincent v M J Gallagher Contractors Ltd.

The Employment Appeal Tribunal may, at a preliminary hearing, permit an appeal to proceed on some grounds while dismissing others. However, caution is required where the grounds form a single, narrow challenge to one decision-making or consultation process. If all grounds materially concern that same process, the tribunal should ordinarily allow them all to proceed where the issues are sufficiently arguable. The Court of Appeal’s intervention at this stage determines only whether the appeal should proceed; it does not determine the eventual merits.

An office manager challenged her selection for redundancy and brought an unfair dismissal claim. The Employment Tribunal rejected the claim. At a preliminary hearing, the Employment Appeal Tribunal permitted the appeal to proceed on grounds concerning consultation over restructuring and alternative employment, but dismissed grounds concerning consultation over selection criteria, subjectivity and application of the criteria.

The appellant appealed to the Court of Appeal, arguing that the excluded grounds were arguable and formed part of the same challenge to the consultation procedure.

1. Appeal allowed with costs. The matter was remitted to the Employment Appeal Tribunal, with the appeal there to proceed on grounds 1 to 5 inclusive. The Court of Appeal did not express a view on the eventual merits.
2. The preliminary hearing procedure before the Employment Appeal Tribunal has value. It may be appropriate, after analysing the grounds, to permit an appeal to proceed on one ground while refusing permission on another.
3. That procedure was applied incorrectly here. Grounds 2, 3 and 4 were arguable because the stated redundancy criteria appeared arguably different from the approach later explained to the employee, which referred to the flexibility she could offer in the restructuring process.
4. All five grounds concerned the consultation procedure and the case was within a comparatively narrow compass. In those circumstances, it was inappropriate to permit the appeal to proceed on grounds 1 and 5 while refusing grounds 2, 3 and 4. The reason given by the Employment Appeal Tribunal was not persuasive.
5. Lord Justice Pill delivered the judgment. Lord Justice Scott Baker and Mr Justice Wilson agreed.

• Court of Appeal (Civil Division): Allowed the appeal with costs and remitted the matter to the Employment Appeal Tribunal, directing that the appeal proceed there on grounds 1 to 5 inclusive.
• Employment Appeal Tribunal: At a preliminary hearing on 8 August 2002, permitted the appeal to proceed on grounds 1 and 5 but dismissed grounds 2, 3 and 4.
• Employment Tribunal: Rejected the appellant’s claim of unfair dismissal; its decision was promulgated on 27 February 2002.