Ruhaza v Alexander Hancock Recruitment

At the permission stage, an appeal may proceed where it is arguable that a factual conclusion was perverse, even though such appellate intervention is rare. A failure to provide an affidavit concerning allegations of bias does not necessarily justify striking out the whole appeal where other grounds remain. Those grounds may be considered through the Employment Appeal Tribunal’s sift procedure, either separately or with the bias allegations removed. Granting permission does not determine the merits of the underlying appeal.

In October 2008, the Manchester Employment Tribunal dismissed a racial discrimination claim after finding that it was out of time and that the claim would have failed on its merits in any event. The appellant lodged an in-time appeal to the Employment Appeal Tribunal, including allegations of bias and misconduct.

The EAT ordered an affidavit verifying those allegations. After uncertainty about whether an affidavit had been delivered, the Deputy Registrar struck out the appeal. Cox J dismissed the appeal against that order on 13 May 2009. The appellant renewed his application for permission to appeal, challenging both the factual finding that he had not complied with the order and the decision to strike out the whole appeal.

Application granted. Lady Justice Smith granted permission to appeal. The Court did not determine the merits of the underlying discrimination claim or finally decide whether the affidavit had been served.

1. The finding that the appellant had not complied with the affidavit order was arguably perverse. A recorded-delivery envelope had been received by the EAT on 16 February, signed for by staff and assigned to the appeal, but its contents could not be found. The affidavit produced by the appellant appeared to have been sworn before a solicitor before that date. The judge considered it arguable that insufficient regard had been paid to the real possibility that the affidavit had been served in time. Although it is rare for the Court of Appeal to interfere with a factual conclusion on grounds of perversity, the issue was sufficiently arguable to justify permission.
2. It was also arguable that, even if the affidavit had not been provided, striking out the entire appeal was unjustified. The affidavit related only to the allegations of bias and improper conduct. The remaining grounds challenged the decisions on limitation and the merits. Those grounds arguably should have been subjected to the EAT’s sift procedure, either as the whole appeal or as an appeal without the bias allegations.
3. The appeal was directed to be heard by a court of three, with one member permitted to be a High Court judge. The estimated hearing, including judgment, was limited to two hours. The appellant was given seven days after receiving the transcript to amend his grounds.

• Court of Appeal (Civil Division) On 19 January 2010, Lady Justice Smith granted the renewed application for permission to appeal: [2010] EWCA Civ 29.
• Employment Appeal Tribunal Cox J dismissed the appellant’s appeal against the Deputy Registrar’s striking-out order on 13 May 2009.
• Employment Tribunal, Manchester In October 2008, the tribunal found that it had no jurisdiction to hear the out-of-time racial discrimination claim and that it would have failed on its merits in any event.