Emezie v British Telecommunications Plc

On an application for permission to appeal, the court should refuse permission where the proposed grounds have no real prospect of success and could not affect the result even if resolved for the applicant. A case-management decision may legitimately focus proceedings on the allegations central to the dispute. In deciding whether to allow an amendment introducing much older allegations, the tribunal may consider the age and complexity of the litigation, the burden of investigation, the risk of postponing the hearing, and fairness to both parties. An appellate court need not decide a proposed general question about the test for an out-of-time review where the answer would not alter the outcome. The application was therefore refused.

The applicant pursued race-discrimination, pay and victimisation allegations against BT in proceedings begun in 2009. An Employment Judge refused an amendment that would have brought allegations between 2000 and 2008 into the substantive hearing, which focused on events from 2008. The Employment Appeal Tribunal and, subsequently, Wilkie J considered challenges concerning an alleged concession by the applicant’s former solicitor, the availability of an attendance note, and the refusal to extend time for an EAT review. The applicant sought permission to appeal. The central questions were whether the alleged procedural matters had a realistic prospect of changing the result and whether the interests-of-justice test for an out-of-time review differed from the test for an out-of-time appeal.

Application refused. The court found no real prospect of a successful appeal against Wilkie J’s decision.

1. The alleged procedural errors did not justify permission. Lord Justice Pill accepted that the attendance note had been requested, although the request was not promptly pursued. That point was immaterial. He also accepted Wilkie J’s realistic reading of the attendance note, which confirmed that the applicant’s former solicitor had abandoned the allegations from 1996 to 2000, did not maintain that events between 2000 and 2008 formed a continuous course, and confirmed that the forthcoming hearing would focus on events commencing in 2008.
2. The refusal by Employment Judge Williams to permit the amendment was a case-management decision based on the overall context. Relevant considerations included the age and complexity of the proceedings, the burden on the respondent of investigating much older matters, the risk of postponing the hearing, the need to focus on the real dispute, and fairness to both parties. The decision was a legitimate attempt to avoid unnecessary complication in an already lengthy case. The fairness of the nine-day tribunal hearing was not challenged before the court.
3. The court declined to determine whether the Aziz principles in Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111 applied to an out-of-time review as well as to a substantive appeal. Even if that issue were resolved in the applicant’s favour, it could not affect the result.

There was no fault in Wilkie J’s decision, and permission to appeal was refused.

• Court of Appeal (Civil Division): application for permission to appeal refused for lack of a real prospect of success: [2012] EWCA Civ 1071.
• Employment Appeal Tribunal: Wilkie J dismissed the appeal against the refusal to extend time for seeking a review of an earlier EAT decision.
• Employment Appeal Tribunal: the Registrar refused an extension of time to seek review of an EAT decision dismissing an appeal against a case-management decision.
• Employment Tribunal: Employment Judge Williams refused an amendment that would have expanded the allegations to events between 2000 and 2008.