Watson v Bonar Floors Ltd

Decisions on amendment of employment claims and the issue of witness orders are matters for the Employment Tribunal’s discretion. Appellate intervention requires an error of law, such as an error of principle or an exercise of discretion that is plainly wrong. It is insufficient that another tribunal might have made a different order. On an application for permission to appeal, permission should be refused where the tribunal gave satisfactory reasons and the proposed appeal has no real prospect of success.

Mr Watson brought unfair dismissal proceedings arising from the termination of his employment. The Employment Tribunal allowed him to amend his claim to allege dismissal for making a protected disclosure under section 103(A) of the Employment Rights Act, but refused his other proposed amendments and requests for witness orders.

The Employment Appeal Tribunal, with HHJ Birtles sitting alone under rule 3(10), dismissed his appeal, finding no arguable error of law. Mr Watson applied to the Court of Appeal for permission to appeal. The central issue was whether the Employment Tribunal had erred in law in exercising its discretionary case-management powers.

1. Permission refused. The Court of Appeal refused permission to appeal against the Employment Appeal Tribunal’s order.
2. Lord Justice Mummery held that decisions concerning amendments to claims and the issuing of witness orders fell within the Employment Tribunal’s discretion. An appeal could succeed only upon proof of an error of law in the exercise of that discretion. It was not enough that another tribunal, appeal tribunal or court might have made a different order. The applicant had to establish an error of principle or an exercise of discretion that was plainly wrong.
3. The Court considered Mr Watson’s arguments concerning delay, the conduct of his solicitors, the alleged duplication of claims, estoppel, the refusal of witness orders, alleged bias and prejudice, the composition of the Employment Appeal Tribunal, and Article 6 of the European Convention on Human Rights. Those matters did not disclose an arguable error of law.
4. The Employment Tribunal had given satisfactory reasons for refusing the further amendments and witness orders. Reading its decision of 4 January 2005 with the later note dated 8 April 2005, Lord Justice Mummery found no error of law and agreed with HHJ Birtles’s conclusion. There was therefore no real prospect of the proposed appeal succeeding.

1. Court of Appeal (Civil Division): Permission to appeal refused: [2005] EWCA Civ 1188.
2. Employment Appeal Tribunal: HHJ Birtles, sitting alone under rule 3(10), dismissed Mr Watson’s appeal for want of an arguable error of law.
3. Employment Tribunal: Allowed a limited amendment to allege protected-disclosure unfair dismissal under section 103(A) of the Employment Rights Act, but refused the other amendments and requested witness orders.