Centrewest London Buses Ltd v Ukachukwu

On a renewed application, permission to appeal may be granted where the proposed appeal raises a significant issue requiring consideration by a full court, even though the judge is not satisfied that the appeal has a real prospect of success. Granting permission does not express a view on the merits or imply that the appeal will succeed. Unless the court limits the grounds, the appeal may proceed on the grounds advanced.

The appellant, an employee, sought permission to appeal against the Employment Appeal Tribunal’s decision of 20 December 2007. The EAT had allowed the employer’s appeal from findings of race discrimination and victimisation and dismissed the appellant’s claims.

Pill LJ refused permission on paper. On renewal, the Court of Appeal considered proposed issues concerning the treatment of allegations of racial abuse, suspension, the CRE Code of Practice, the burden of proof and hypothetical comparators. The central question was whether those issues were sufficiently significant to require consideration by a full court.

Permission granted. Mummery LJ granted the renewed application, although he expressly stated that he was not satisfied that the appeal had a real prospect of success. The basis for granting permission was that the proposed appeal raised significant issues which should be considered by a full court.

1. The issues included the true effect of the CRE Code of Practice and the basis on which an employer should proceed when suspending an employee for making an allegation of racial abuse. The employment tribunal had found that the employee was subjected to race discrimination and victimisation during the handling of his suspension and the subsequent investigation, while rejecting complaints relating to the original incident.
2. The EAT had identified alleged errors of law in the employment tribunal’s reasoning. These included the effect of the reversal of the burden of proof and the process of comparing the employee’s treatment with that of a hypothetical comparator.
3. The appellant sought to rely on the proper understanding of Lord Nicholls’s observations in Shamoon v Chief Constable of the RUC [2003] IRLR 285. Mummery LJ did not determine that issue, or express a view on the correctness of the EAT’s criticisms.
4. The grant of permission was not an indication that the appeal would succeed. The appeal might ultimately be dismissed. The grounds were not limited, and the order was that the application be granted.

1. Court of Appeal (Civil Division): On 10 April 2008, Mummery LJ granted the renewed application for permission to appeal: [2008] EWCA Civ 521.
2. Court of Appeal (Civil Division): Pill LJ had refused permission on paper on 25 February 2008.
3. Employment Appeal Tribunal: On 20 December 2007, HHJ Peter Clark allowed the employer’s appeal from the employment tribunal and dismissed the employee’s race discrimination and victimisation claims.
4. Employment Tribunal: In May 2007, the tribunal made findings including race discrimination, victimisation and unfair dismissal.