Uthman v Speciality Care (EMI) Plc (t/a Craegmoor Healthcare)

An appeal to the Employment Appeal Tribunal must identify an arguable error of law. Where no such point is disclosed, the Tribunal has no jurisdiction under Employment Tribunals Act 1996 section 21.

Once a claim has been struck out following a pre-hearing review, there will ordinarily be no utility in separately determining appeals against earlier case-management decisions which arranged that review. An appellate challenge to a refusal to extend time will fail where it does not identify an error in the Tribunal's findings on reasonable practicability or its exercise of the just and equitable discretion.

The Claimant appealed against three interim Employment Tribunal decisions concerning a pre-hearing review and against the final decision striking out her unfair dismissal and discrimination claims. She had not attended the pre-hearing review, at which Employment Judge Hall-Smith held that the claims were out of time and that there was no material supporting an extension of time.

The Claimant also sought to adduce fresh evidence and had made an unsuccessful application for a stay. Her notices of appeal had been rejected at earlier sift stages, but she exercised her right to a rule 3(10) hearing. She did not attend that hearing or make further representations. The central questions were whether any appeal disclosed reasonable grounds based on an error of law, and whether there was any utility in pursuing the interim appeals after the strike-out.

1. All four appeals were dismissed as wholly without merit. The Claimant had identified no arguable error of law in the strike-out decision. The Employment Judge was entitled to find that the claim form was late and that, in the Claimant's absence, there was no evidence capable of supporting an extension for reasonable practicability in the unfair dismissal claim or under the just and equitable discretion for the discrimination claims.

2. Under section 21 of the Employment Tribunals Act 1996, the EAT has no jurisdiction where an appeal discloses no point of law. The proper question at the rule 3(10) hearing was whether any reasonable grounds existed. The written materials did not make a focussed challenge to the findings or discretionary decisions which determined the limitation issue.

3. The application to adduce fresh evidence was hopeless. In any event, following Korashi v Abertawe Bro Morgannwg University Local Health Board UKEAT/0424/09, the Claimant should first have put that material before the Employment Tribunal.

4. Applying the approach in Edem v Ajilon UK Ltd and Anor [2007] EWCA Civ 394, there was no utility in deciding appeals against decisions arranging the pre-hearing review after that review had occurred and the claims had been struck out. Those interim appeals also disclosed no reasonable prospect of success on their merits.

5. The Judge directed that a copy of the judgment be placed before the Registrar. If the Claimant commenced further proceedings, the Registrar could consider a referral to the Attorney General under section 33 of the Employment Tribunals Act 1996 for a restriction of proceedings order.

• Employment Appeal Tribunal: The Claimant's appeals against three interim decisions and the strike-out decision were dismissed as wholly without merit.
• Employment Tribunal: Employment Judge Hall-Smith struck out the unfair dismissal and discrimination claims on 13 September 2010 after a pre-hearing review. The claims were out of time and no basis for an extension had been shown. The interim decisions were sent on 29 June, 14 July and 21 July 2010.