Mire v Odeon Cinema

When deciding whether to extend time for an employment appeal, the appellate tribunal must consider the broad merits of the proposed appeal. An extension should not be granted where the appeal could not possibly succeed. The Employment Tribunal is the only tribunal responsible for determining the facts. An appeal is confined to an error of law, including a properly characterised perverse conclusion; it is not a rehearing or re-evaluation of the evidence. Procedural failings do not establish constructive dismissal unless they amount to a fundamental or repudiatory breach of contract.

The appellant left her employment with Odeon Cinemas and claimed constructive unfair dismissal. After a full hearing, the Employment Tribunal found that breaches of the employer’s grievance procedure did not amount to fundamental breaches of contract and dismissed the claim.

The appellant filed her appeal to the Employment Appeal Tribunal one day out of time. The registrar refused an extension, and Elias J upheld that refusal. The appellant renewed her application for permission to appeal to the Court of Appeal. The central questions were whether time should be extended and whether the proposed appeal had any real prospect of success.

1. Application refused. Although the appellant had an acceptable explanation for much of the delay, the merits of the proposed appeal were decisive. The Court would otherwise have extended time by one day.
2. In an application to enlarge time, the judge must consider whether allowing the appeal to proceed would serve any purpose. Where the proposed appeal could not possibly succeed, an extension should not be granted. This principle was applied from Aziz.
3. The proposed appeal could only allege an error of law. The Employment Tribunal had directed itself in accordance with Western Excavating v Sharp. Its conclusion that the employer’s breaches were not repudiatory could be challenged only on perversity grounds. No proper basis existed for saying that the conclusion flew in the face of the evidence or was one the Tribunal was not entitled to reach. The high threshold for perversity was applied by reference to Yeboah v Crofton.
4. Facts are determined at Employment Tribunal level. An appeal is not a rehearing or re-evaluation of the evidence. Complaints about post-departure conduct did not alter the issue, which was whether the employer’s wrongdoing had forced the appellant to leave.
5. Procedural failings and confusion concerning the grievance process did not establish constructive dismissal. The formal order was: Application refused.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused.
• Employment Appeal Tribunal: the registrar refused to extend time for appealing, and Elias J refused the appeal against that refusal.
• Employment Tribunal: the claim for constructive unfair dismissal failed after a full hearing.