Yuan v Birkbeck College

Permission to appeal requires a real prospect of success. A party cannot appeal against a decision in that party’s favour. Grounds already determined at an earlier appellate stage cannot ordinarily be revived after the time for challenging that determination has expired. Where the proposed grounds fall outside the issue remitted for rehearing and have no realistic prospect of success, permission should be refused.

Dr Yuan was employed by Birkbeck College subject to a six-month probationary period. Following termination of his employment, he brought contractual claims before an Employment Tribunal, including claims relating to notice, the remaining probationary period, future employment, work-permit loss and research opportunities.

The Employment Tribunal rejected or declined jurisdiction over the claims. On appeal, Mr Justice Burton restricted the matter to whether the College could terminate the contract on one month’s notice for alleged irredeemable incapability. The Employment Appeal Tribunal later allowed that limited appeal and remitted the issue to a differently constituted tribunal. It also refused to reopen the other grounds. The central question was whether Dr Yuan had any real prospect of obtaining permission to challenge those procedural decisions.

1. Applications dismissed. Dr Yuan could not seek permission to appeal against the Employment Appeal Tribunal’s decision of 8 April 2005 because that decision allowed his appeal and remitted the remaining contractual issue for rehearing. His real complaint concerned the refusal to reopen the other grounds of appeal.
2. The Employment Appeal Tribunal was entitled to treat those other grounds as having been determined by Mr Justice Burton at the earlier hearing on 19 May 2004. The later Employment Appeal Tribunal judgment made clear that the full appeal had been confined to the single issue concerning termination on one month’s notice for irredeemable incapability.
3. Although the full transcript of Mr Justice Burton’s judgment was not before the Court of Appeal, Dr Yuan had possessed it and knew that the appeal was restricted in that way. If he wished to challenge the earlier determination, he should have appealed against it at the time. He was then well out of time.
4. In any event, the additional claims, so far as they exceeded losses flowing from the alleged breach of contract referred back to the Employment Tribunal, had no real prospect of success. The proposed appeals therefore failed the applicable permission threshold.

The Court of Appeal accordingly dismissed both applications.

• Court of Appeal (Civil Division) — On 5 May 2005, dismissed the applications for permission to appeal. [2005] EWCA Civ 609
• Employment Appeal Tribunal — On 8 April 2005, allowed the limited appeal and remitted the issue of entitlement to terminate on one month’s notice to a differently constituted Employment Tribunal. On 16 March 2005, refused to reopen the remaining grounds.
• Employment Appeal Tribunal — At an earlier preliminary stage, the appeal was permitted to proceed only on the issue concerning clause 20.7.3 and termination for irredeemable incapability.
• Employment Tribunal, London Central — Rejected the contractual and related claims in a decision entered on the register on 10 October 2003.