Sarieddine v Abou Zaki Holding Company

Permission to appeal from the Employment Appeal Tribunal requires an arguable point of law requiring the Court of Appeal’s attention. In practical terms, the applicant must identify an arguable error of law by the employment tribunal which the Employment Appeal Tribunal failed to correct. Findings of fact made on evidence properly open to the tribunal cannot be challenged merely because another court might have reached a different conclusion. Whether an employee declined suitable alternative employment and thereby failed to mitigate loss is ordinarily a factual issue. Where the tribunal’s findings are supported by the evidence, appellate intervention is unavailable.

Mr Sarieddine was found to have been unfairly dismissed. The employment tribunal ordered reinstatement and made a monetary award. After the respondent failed to reinstate him, the tribunal found that he had failed to mitigate his loss after February 2006 by declining an offer of alternative employment at another restaurant.

The Employment Appeal Tribunal, sitting with His Honour Judge Birtles, dismissed his appeal against those findings. Mr Sarieddine renewed his application for permission to appeal to the Court of Appeal. The central issue was whether his complaints disclosed an arguable error of law, rather than merely disagreement with the employment tribunal’s factual conclusions.

Application refused and dismissed. Lord Justice Wall held that the renewed application disclosed no arguable point of law requiring the Court of Appeal’s attention.

1. The relevant appellate question was whether the employment tribunal had made an error of law which the Employment Appeal Tribunal had failed to correct. Permission was not available simply because the applicant disagreed with the factual assessment.
2. The employment tribunal was entitled to determine whether the respondent had made an offer of alternative employment and whether Mr Sarieddine had declined it. Its finding that his failure to accept the offer caused a failure to mitigate loss was a finding of fact.
3. Where findings of fact are based on material properly open to the employment tribunal, they cannot be interfered with merely because the Employment Appeal Tribunal or the Court of Appeal might have reached different findings. The distinction between refusing an offer and not accepting it was unrealistic on the facts found.
4. The Court agreed with the earlier refusal of permission by Ward LJ and with the reasoning of His Honour Judge Birtles. The application was therefore refused. A transcript of the judgment was directed to be made available to Mr Sarieddine at public expense.

• Court of Appeal (Civil Division): Lord Justice Wall refused the renewed application for permission to appeal and dismissed the application.
• Employment Appeal Tribunal: His Honour Judge Birtles, sitting alone, dismissed the application for permission to appeal on 14 November 2007.
• Employment Tribunal: The tribunal found unfair dismissal, ordered reinstatement and made a monetary award. It later found that the respondent had failed to reinstate Mr Sarieddine but that he had failed to mitigate his loss after February 2006.