Kell v Durham Police Authority

An appeal from an employment tribunal must identify a material error of law. Disagreement with factual findings ordinarily provides no basis for permission to appeal. A renewed application cannot be used to introduce points not raised before the Employment Appeal Tribunal or to revive abandoned points. A disabled litigant is entitled to reasonable adjustments, but disability does not create an unrestricted opportunity to reopen the evidential case at a later appeal. Where the tribunals have made clear findings that dismissal was unrelated to protected disclosures or disability, and those findings disclose no arguable legal error, permission should be refused.

Philip Kell applied for renewed permission to appeal against the Employment Appeal Tribunal’s dismissal of his challenge to an employment tribunal decision. The employment tribunal had dismissed four claims and recorded the withdrawal of a fifth. The claims alleged dismissal and detriment for protected disclosures under the Employment Rights Act 1996, together with disability discrimination under the Disability Discrimination Act 1995.

Before the Court of Appeal, Mr Kell sought to revisit numerous alleged disclosures, challenge the finding that his conduct concerning an inspector’s pocketbook was not in good faith, and adduce fresh evidence. The central issue was whether those matters disclosed a real prospect of establishing a material error of law.

Rimer LJ extended time for the renewed application, accepting that the delay was genuine, but refused permission to appeal.

1. Appellate threshold. Appeals from employment tribunals lie only on issues of law. A proposed appellant must show a real prospect of establishing a material error of law. A challenge which merely disputes factual findings ordinarily cannot succeed (paras [4], [10]–[11]).
2. Points not raised below. There was no proper basis for allowing Mr Kell to raise before the Court of Appeal matters which had not been argued before the Employment Appeal Tribunal, or matters abandoned there. This was particularly so where the tribunal’s findings made the proposed exercise pointless and reopening the case would be unfair to the Authority (paras [4], [14]–[16]).
3. Protected disclosures. The employment tribunal was entitled to find that, among the alleged disclosures, only the pocketbook matter was arguably capable of qualifying, that it was not made in good faith, and that Mr Kell’s dismissal and any detriment were not caused by protected disclosures. The Employment Appeal Tribunal had considered the good-faith issue by reference to the guidance in Street v Derbyshire Unemployed Workers’ Centre [2004] IRLR 687. No arguable error of law was shown (paras [10], [12], [14]).
4. Disability and fresh evidence. A disabled party is entitled to reasonable adjustments before an employment tribunal so that the disability does not disadvantage the presentation of the case. That entitlement does not give a claimant a free-standing right, on a second appeal, to reopen evidence or repair shortcomings in the conduct of the original proceedings merely by self-certifying that disability caused them. The procedural history and the prejudice to the respondent were decisive (para [16]).
5. The proposed appeal therefore had no real prospect of success, and permission was refused (para [17]).

• Court of Appeal (Civil Division): Mummery LJ refused permission on the papers on 16 February 2012. Rimer LJ extended time for the renewed application and refused permission on 20 June 2012.
• Employment Appeal Tribunal: His Honour Judge McMullen QC rejected the proposed appeal at the paper sift. His Honour Judge Peter Clark dismissed the rule 3(10) challenge after an oral hearing on 2 November 2011. The EAT matter was numbered UKEATPA/0038/11/RN.
• Employment Tribunal: The Newcastle upon Tyne employment tribunal dismissed four claims and recorded withdrawal of a fifth in judgment sent on 27 January 2011.