Hooper v Sherborne School

In an appeal from an employment tribunal, the Employment Appeal Tribunal cannot become a fact-finding tribunal to determine a new factual case that was not advanced below. Parties must ordinarily present their entire case to the employment tribunal. A second opportunity to advance a new case is exceptional and requires a proper basis, ordinarily involving an appealable error of law. Generalised allegations of procedural unfairness, bias or evidential irregularity are insufficient: complaints must be identified with particularity and supported by material capable of investigation. Where findings are supported by evidence and no error of law is shown, there is no viable appeal. A costs order is not invalid merely because ability to pay was not considered where that assessment was discretionary.

Mrs Hooper appealed, by a renewed application for permission, against an order of His Honour Judge McMullen QC in the Employment Appeal Tribunal dated 9 September 2009, which dismissed her appeal from the Southampton Employment Tribunal. The employment tribunal had dismissed her victimisation claim under the Race Relations Act 1976 and ordered her to pay £7,000 costs.

She alleged that Sherborne School dismissed her because it knew, or suspected, that she had brought earlier race-discrimination proceedings against a former employer. The tribunal found that the dismissing officers did not know the nature of those proceedings and dismissed her claim. Before the Court of Appeal she sought to raise a new suspicion-based case, alleged procedural unfairness and bias, and challenged the costs order. The central questions were whether those matters disclosed an arguable error of law and whether they could properly be raised for the first time on appeal.

1. Application refused. The court refused to extend time and refused permission to appeal. The proposed appeal was hopeless because the employment tribunal’s decision turned on findings of fact supported by evidence, while the Employment Appeal Tribunal had no jurisdiction to entertain an appeal on issues of fact.
2. The proposed argument that victimisation could be established by the School’s suspicion that Mrs Hooper had brought or alleged race-discrimination proceedings could, in principle, succeed if proved. However, it was not pleaded in the ET1 or advanced before the employment tribunal. The Employment Appeal Tribunal therefore had no basis to determine the new factual case itself. Its function was not to become a fact-finding tribunal. A remission for rehearing on the new point would be exceptional and had no possible justification here.
3. The basic rule is that parties, including litigants in person, must put their entire case before the employment tribunal. They are not ordinarily entitled to advance a case on appeal which could have been made below but was omitted.
4. Allegations of procedural impropriety, bias or similar unfairness must be stated with particularity. The established practice is for the Employment Appeal Tribunal to obtain comments from the employment judge and lay members. Unsupported general assertions, including complaints about questioning witnesses or admitting unauthorised evidence, disclose no arguable error of law.
5. The complaint concerning the change of employment judge disclosed no error. Nor could a complaint about refusal to review be raised in the Court of Appeal when it had not been before the Employment Appeal Tribunal.
6. The costs order was within the employment tribunal’s jurisdiction. Under rule 41(2), consideration of ability to pay was discretionary, and no proper challenge to that issue or to the amount of the order had been raised below.
7. Section 68 of the Arbitration Act 1996 was irrelevant because an employment tribunal is not an arbitrator. Independently of that section, failure to deal with material issues might amount to an appealable error of law, but no such omission was identified.

• Court of Appeal (Civil Division): Hooper v Sherborne School [2010] EWCA Civ 1266. Renewed application refused; time for appealing was not extended and permission to appeal was refused.
• Employment Appeal Tribunal: His Honour Judge McMullen QC dismissed the appeal and directed that no further action be taken on 9 September 2009. The order was sealed on 10 September 2009.
• Southampton Employment Tribunal: The tribunal dismissed the victimisation claim and ordered Mrs Hooper to pay £7,000 costs. Its reasons were sent on 16 September 2008.