Barreto v Wincanton Group Ltd

An appeal to the Court of Appeal under section 37 of the Employment Tribunals Act 1996 is not barred merely because the appellant has not exhausted the EAT’s rule 3(10) procedure. An appellant may therefore seek permission directly from the EAT or the Court of Appeal, although it is prudent to lodge a rule 3(10) application concurrently.

Where a rule 3(10) application is out of time, a decision to pursue the Court of Appeal instead of the available EAT hearing is not a sufficient excuse for an extension. The merits may be considered, but ordinarily carry little weight unless the discretion is otherwise finely balanced. New evidence must satisfy the Ladd v Marshall requirements and should generally be raised first before the Employment Tribunal.

The Claimant succeeded in an Employment Tribunal on unfair dismissal but failed in his race discrimination claim. The Tribunal awarded compensation exceeding £15,000 for unfair dismissal. His appeal against the discrimination findings was rejected at the EAT sift under rules 3(7) and 3(8).

The Claimant did not pursue a rule 3(10) oral hearing within time. He instead applied to the Court of Appeal, whose Deputy Master returned the papers on the basis that EAT procedures had not been exhausted. The Claimant then made a rule 3(10) application four days late. The issues were whether section 37 permitted a direct appeal route and whether an extension of time, and the substantive appeal, should be allowed.

1. Procedural jurisdiction. The Deputy Master was wrong to treat exhaustion of EAT procedures as a condition of an appeal under section 37 of the Employment Tribunals Act 1996. Section 37 is expressed in unqualified terms and permits an application for permission to appeal against an opinion under rules 3(7) or 3(8). There are practical reasons to exhaust EAT remedies, but they do not remove the statutory right to seek permission from the EAT or the Court of Appeal.
2. Extension of time. The Claimant’s rule 3(10) application was four days late. Applying the factors identified in United Arab Emirates v Abdelghafar, his explanation was that he had deliberately chosen the Court of Appeal as a preferable forum. That was not a good excuse and did not justify the exceptional exercise of discretion.
3. Substantive appeal. The Employment Tribunal had considered the race discrimination allegations separately, applied the reverse burden of proof, and addressed the Respondent’s explanations in the alternative. Its conclusions were factual and were not arguably perverse or legally erroneous. The substantive appeal therefore had no reasonable prospect of success.
4. New evidence. The proposed evidence concerning an alleged workplace culture and statistical or anecdotal comparisons did not satisfy the requirements in Ladd v Marshall. It substantially repeated material already before the Tribunal and would amount to a second opportunity to present the case. Any genuinely new evidence should ordinarily be raised first before the Employment Tribunal.
5. The appeal against the Registrar’s order was dismissed under rule 21. The Judge also conducted, in substance, the rule 3(10) hearing and concluded that the case had no prospect of success. Permission to appeal to the Court of Appeal was refused.

• Employment Tribunal: upheld the unfair dismissal claim, dismissed the race discrimination claim, and awarded compensation exceeding £15,000.
• Employment Appeal Tribunal: the Registrar rejected the Notice of Appeal as out of time and declined an extension. The President gave opinions under rules 3(7) and 3(8) that the proposed grounds disclosed no reasonable basis of appeal. The present appeal was dismissed under rule 21, and the rule 3(10) application was also rejected on the merits.
• Court of Appeal: a Deputy Master returned the Claimant’s papers because EAT procedures had not been exhausted. The present judgment held that this was an incorrect construction of section 37, but refused permission to appeal because the proposed appeal had no reasonable prospect of success.