Walker v Barnes

At the permission stage, the court need only be satisfied that the proposed appeal is arguable. Permission does not imply that the appeal will succeed. In assessing arguability, the court may consider whether an Employment Appeal Tribunal’s order for a rehearing was justified, particularly where the original tribunal assessed the witnesses and the remission might reopen a wider part of the award. Finality in litigation and the practical consequences of remission may be relevant.

Mr Barnes sought permission to appeal against an Employment Appeal Tribunal decision which reversed the Employment Tribunal Chairman’s refusal to review an unfair dismissal award. The proposed review concerned fresh evidence about work undertaken with Cavanagh Construction and its possible effect on a 30 per cent reduction for contributory conduct. The Employment Appeal Tribunal ordered a rehearing before a differently constituted tribunal. Mr Barnes argued that the Employment Appeal Tribunal’s criticism of the Chairman’s reasoning, and the scope and consequences of the remission, were open to challenge.

Application allowed. Lord Justice Sedley granted permission to appeal, without suggesting that Mr Barnes would necessarily succeed.

1. The issue at this stage was whether the challenge to the Employment Appeal Tribunal’s reasoning and order was arguable. The Employment Appeal Tribunal had considered that the fresh evidence could cast real doubt on the explanation previously accepted by the Employment Tribunal and that the absence of an actual profit did not justify discounting it.
2. It was arguable that the Chairman, having heard the evidence and assessed the witnesses, was better placed than the Employment Appeal Tribunal to decide whether the new material might materially affect the original decision. That evidential advantage would be lost if the matter were sent to a fresh tribunal.
3. The practical effect of the Employment Appeal Tribunal’s order was also relevant. Although expressed as a rehearing on the appropriate percentage deduction, it could require a new tribunal to reconsider the wider elements of contributory conduct and potentially the whole award.
4. The Chairman’s reminder that a compensatory award under section 123 of the Employee Rights Act 1996 was based on what was just and equitable, rather than strict accounting, and that finality was important unless substantial injustice had occurred, provided an arguable basis for challenging the Employment Appeal Tribunal’s approach. The Court of Appeal did not finally determine those issues.

Permission to appeal was granted. Mr Barnes could instead proceed with the remitted hearing, and that choice would not be held against him.

• Court of Appeal (Civil Division): In [2004] EWCA Civ 687, permission to appeal was granted.
• Employment Appeal Tribunal: Reversed the Employment Tribunal Chairman’s refusal to review the award and remitted the matter for rehearing before a differently constituted tribunal.
• Employment Tribunal: Refused to review its decision that Mr Barnes had been unfairly dismissed and had reduced his compensation by 30 per cent for contributory conduct.