John-Charles v Weir & Anor

The Court of Appeal refused permission to appeal against the Employment Appeal Tribunal and Employment Tribunal decisions. The appellant, a former ICT officer, had brought claims of race discrimination and unfair (constructive) dismissal. The tribunals found that he had resigned by clear and unequivocal acts in July 2007 and that his resignation was not in response to any repudiatory conduct by the employer because he had waived any earlier complaints by awaiting the outcome of disciplinary procedures and by participating in return-to-work arrangements.

The court emphasised the limited scope of appellate review: appeals lie only on questions of law and not on challenges to findings of fact supported by evidence. The Court also upheld the tribunal's case-management discretion in refusing to permit a late new point based on a June 2005 memorandum and treated the Employment Rights Act 1996 s.4 point as not having been pleaded or pursued at the tribunal so as to afford no realistic prospect of success on appeal.

Background and parties:

• The appellant, Dr Peter John-Charles, a former ICT officer at Thornton Grammar School, brought 45 allegations of race discrimination and a claim for unfair dismissal (constructive dismissal) against the headteacher, Mr John Weir, and the school's governing body.
• The employment tribunal (Leeds) after a multi-day hearing rejected the discrimination allegations and concluded the appellant had resigned by clear acts in July 2007 and was not constructively dismissed.
• The Employment Appeal Tribunal dismissed the appellant's challenge and the Court of Appeal refused permission to appeal.

Nature of the claim / relief sought: The appellant sought remedies for race discrimination and for unfair/constructive dismissal arising from prolonged disciplinary/suspension processes and alleged failures to provide updated job particulars.

Issues framed:

• Whether the appellant's communications in July 2007 amounted to a resignation and, if so, whether that resignation was in response to a repudiatory breach by the employer (constructive dismissal).
• Whether the employer breached obligations (including section 4 of the Employment Rights Act 1996) by failing to provide a revised job description in 2005 and whether that could justify resignation.
• Whether the employment tribunal erred in refusing to admit or to permit reliance on a June 2005 memorandum late in the resumed hearing.
• Whether the appellant was dismissed for asserting statutory rights (automatic unfair dismissal argument).

Court's reasoning and conclusions:

• The Court of Appeal concentrated on the employment tribunal's findings of fact: the tribunal had evidence to support its conclusions that the appellant was a difficult, insubordinate employee; that he had been suspended for a lengthy period but subsequently waived any earlier repudiatory complaint by participating in return-to-work procedures; and that his later emails constituted a clear and unequivocal resignation.
• The court held that challenges to factual findings do not give rise to an appeal as of right: the appellant had not identified any error of law in the tribunal's reasoning sufficient to justify appellate intervention. The appeal tribunal had correctly concluded the employer was entitled to stop pay given the appellant's refusal to return and that there was no repudiation justifying constructive dismissal.
• The Court endorsed the tribunal's case-management discretion in refusing to permit the appellant to raise a new complaint based on the June 2005 memorandum at a late stage; that decision did not disclose an error of law.
• Claims based on a failure to provide particulars under the Employment Rights Act 1996 were not properly pleaded or relied upon at tribunal stage and, in any event, were unlikely to assist the appellant given the facts found by the tribunal.

Procedural posture: the appellant had earlier asked the EAT to review its decision (refused), had procedural irregularities and late filings as a litigant in person, and was granted an extension of time to file in this court but not permission to pursue the appeal substantively.

Permission to appeal was refused and the application dismissed. The Court held that the employment tribunal's findings of fact were supported by evidence, that the appellant had no real prospect of identifying an error of law, and that case-management decisions (including refusal to allow a late new point based on the June 2005 memorandum) were within the tribunal's discretion.

Appeal to the Employment Appeal Tribunal (UKEAT/0119/09/JOJ) from the Employment Tribunal (Leeds) judgment (reasons sent 20 October 2008). The EAT made an order dated 29 July 2009 dismissing the appellant's appeal. Mummery LJ refused permission to appeal on the papers on 5 March 2010. The appellant sought review at the EAT (refused 19 October 2009) and then renewed his application to this Court of Appeal; the court granted an extension of time to file but refused permission to appeal on 29 July 2010 ([2010] EWCA Civ 872).