James v Blockbuster Entertainment Ltd

An appellate court considering permission to appeal from Employment Appeal Tribunal decisions asks whether an error of law is shown. It does not revisit findings of fact, credibility or case management merely because a litigant disagrees with them. A tribunal may require discrimination allegations to be particularised, and the statutory grievance procedure requires the employer to have had an opportunity to address the actual act or omission later relied upon. A generalised allegation will not ordinarily suffice. An arguable discretionary error may justify an appeal, but the decision must still disclose a real error of law or an evidentially unsupported or perverse conclusion. An overarching course of conduct may raise a continuous-discrimination issue only where the tribunal has not dealt with the allegations on their merits.

Anthony James brought five sets of race-discrimination proceedings against his former employer, Blockbuster Entertainment Ltd. The proceedings generated extensive interlocutory litigation. In the first application, he sought permission to appeal against Underhill J’s decision of 13 December 2007 concerning the Employment Tribunal’s treatment of 96 alleged acts, including compliance with the statutory grievance procedure and permission to amend. In the second, he sought permission to appeal against Elias J’s decision of 20 February 2008 following a lengthy substantive Employment Tribunal hearing.

The central questions were whether the Employment Tribunal or the Employment Appeal Tribunal had made an error of law, including by failing to provide a fair hearing, acting perversely, or exhibiting bias or racial prejudice.

1. Both applications refused. An appeal from the Employment Tribunal through the Employment Appeal Tribunal requires an error of law. Disagreement with factual findings, credibility assessments or permissible case-management decisions is insufficient.
2. As to the first application, the Employment Tribunal was entitled to require each act of discrimination relied on to have been sufficiently identified in a written grievance under Part 2 of Schedule 2 to the Employment Act 2002. A generalised allegation could not expose the employer to matters that had not been within its contemplation during the grievance process. The later meeting under paragraph 7 of Schedule 2 could occur only after compliance with the first step. Complaints raised in pleadings after proceedings had begun did not satisfy section 32(2), although they might, in an appropriate case, be introduced by amendment into otherwise valid proceedings.
3. The Employment Tribunal’s treatment of the second group of allegations involved conclusions plainly open to it. The need for particularity in discrimination claims was consistent with the seriousness of both valid and meritless allegations.
4. Underhill J was correct to treat the refusal of permission to amend allegation 95 as arguable, because the relevant time for fresh proceedings had passed before the December 2006 hearing. The judge was also correct that an inappropriate exercise of judicial discretion, or a finding of fact without evidential basis, can amount to an error of law. The point did not justify permission to appeal from his order.
5. As to the second application, the Employment Tribunal’s adverse credibility findings, its decisions concerning witnesses, CCTV material and late responses, and the choice of chairman disclosed no error of law, bias or racism. The findings were open to it and were not perverse. The overarching argument based on Hendricks did not arise because the allegations had been addressed on their merits.

Both proposed appeals therefore had no reasonable prospect of success and permission was refused.

• Court of Appeal (Civil Division): Permission to appeal against both EAT decisions was refused on 23 October 2008.
• Employment Appeal Tribunal: Underhill J’s decision dated 13 December 2007 concerned the grievance procedure, particularisation and amendments. Elias J’s decision dated 20 February 2008 followed the substantive Employment Tribunal proceedings and found no error of law.
• Employment Tribunal: In the interlocutory proceedings, the tribunal allowed 8 of 96 allegations to proceed and disallowed the remainder. A later substantive hearing resulted in findings adverse to Mr James.