Jackson v Walsall Metropolitan Borough Council

An appeal to the Employment Appeal Tribunal requires an arguable error of law. Once the substantive claims have been determined, earlier interlocutory decisions which have spent their effect do not ordinarily warrant further investigation.

The Employment Appeal Tribunal will not retry facts or reassess credibility findings that were open to the Employment Tribunal. Costs are primarily a matter for the Employment Tribunal’s discretion and will rarely be disturbed on appeal. A legally qualified claimant’s knowledge and conduct may properly be relevant when deciding whether pursuing hopeless claims was unreasonable.

The claimant, engaged through an agency as a locum employment lawyer, brought claims for automatic unfair dismissal for protected disclosures, worker detriment, breach of contract, sex discrimination and race discrimination. The Employment Tribunal dismissed all claims. It found that she was a worker rather than an employee of the Council, that there was no contract between them, and that the factual basis of her protected-disclosure and discrimination claims was not made out.

The Tribunal subsequently ordered the claimant to pay £10,000 in costs. She appealed both the substantive judgment and the costs order. The central issues were whether the appeals disclosed an arguable error of law and whether the Tribunal had erred in its factual conclusions or exercise of its costs discretion.

1. The applications and underlying appeals were dismissed. The appeals disclosed no reasonable grounds. Under section 20 of the Employment Tribunals Act 1996, the EAT had no jurisdiction where no point of law was shown.

2. Earlier interlocutory decisions were spent once the substantive claims had been dismissed. Applying Edem, there was neither utility nor entitlement to further investigation of those decisions after the final determination.

3. The EAT could not retry the Employment Tribunal’s findings of fact or credibility. Its conclusion that the claimant was engaged in an ordinary tripartite agency arrangement, without a contract of employment with the Council, was open to it. Accordingly, the automatic unfair-dismissal claim under section 103A of the Employment Rights Act and the contractual claim failed.

4. The Tribunal was also entitled to dismiss the worker-detriment claim. Its findings independently defeated that claim, including that the relationship was not terminated because of a disclosure and that the alleged disclosures did not satisfy the statutory conditions. The discrimination claims were likewise unsupported: the claimant had not shifted the burden of proof.

5. The costs award disclosed no error of law. Costs remained exceptional, but the Tribunal was entitled to find that the claims lacked a legal basis and had been pursued unreasonably. The claimant’s status as a barrister experienced in employment law was relevant to that assessment. Consistently with Arrowsmith and the Court of Appeal’s guidance, the EAT would not interfere with the Tribunal’s discretionary award.

• Employment Appeal Tribunal: applications under the Employment Appeal Tribunal Rules were dismissed, and with them the appeals against the substantive judgment and costs order.
• Employment Tribunal: dismissed the claimant’s claims for automatic unfair dismissal, worker detriment, breach of contract, sex discrimination and race discrimination; subsequently ordered her to pay £10,000 costs under rule 14 of the Employment Tribunals (Constitution and Rules of Procedure) Rules 2001.