Kennaugh v Jones (t/a Cheshire Tree Surgeons)

Appeals from an employment tribunal to the EAT lie only on alleged errors of law. Findings of fact are ordinarily final. A perversity challenge succeeds only exceptionally, where a finding has no evidential support or no reasonable tribunal could properly have made it. Whether conduct is fundamental or minor is a matter for the employment tribunal. A party cannot use a Court of Appeal permission application to introduce points not argued before the EAT. No appeal lies to the Court of Appeal from an EAT Registrar’s decision. Where an application is late, lacks evidence explaining the delay and has no real prospect of success, extension of time and permission may be refused.

A former employee brought a constructive unfair dismissal claim arising from alleged underpayment of wages and mishandling of grievances. An employment tribunal found that he had not been dismissed and that the employer had committed no fundamental breach of contract. The EAT rejected challenges concerning the tribunal’s factual findings, grievance findings and alleged perversity, and dismissed the applicant’s rule 3(10) application and appeal.

The applicant sought permission to appeal to the Court of Appeal. His application was late, and he also sought to rely on a further notice of appeal that had not been argued before the EAT. The central issues were whether the proposed grounds disclosed an error of law, whether the rejected notice could be pursued in the Court of Appeal, and whether time should be extended.

Application refused. Lord Justice Rimer refused to extend time, refused the proposed amendment to the appellant’s notice and refused permission to appeal.

1. The application was more than two weeks late. No evidence explaining the delay had been provided. That was sufficient reason to refuse an extension, independently of the merits.
2. The complaint concerning the EAT Registrar’s rejection of a further notice of appeal could not properly be pursued in the Court of Appeal. The applicant could have appealed the Registrar’s decision to an EAT judge under rule 21 of the Employment Appeal Tribunal Rules 1993, or could have raised the proposed points at the rule 3(10) hearing. He did neither. No appeal lay to the Court of Appeal against the Registrar’s decision, and Judge McMullen could not be criticised for failing to decide points that had not been put before him.
3. Under section 21 of the Employment Tribunals Act 1996, an appeal from an employment tribunal to the EAT lies only on an alleged error of law. The tribunal decides the facts, and there is ordinarily no further factual inquiry on appeal.
4. A tribunal’s findings of fact may amount to an error of law only in the exceptional case of perversity. The threshold is high. It requires, for example, a finding unsupported by evidence or a finding that no reasonable tribunal could properly have made. The applicant’s disagreement with the tribunal’s assessment of the evidence did not approach that threshold.
5. Whether the alleged wage-payment errors were fundamental or minor was a question of fact for the employment tribunal. The tribunal had explained why the errors were not repudiatory and why the handling of the applicant’s grievances was not culpable. The applicant identified no arguable error of law in Judge McMullen’s treatment of the points actually advanced before him.
6. The proposed amendment, seeking permission to appeal against all decisions said to have discarded the context, was self-evidently imprecise. Insofar as it sought a general review of the tribunal’s factual findings, it was misconceived. The proposed appeal had no real prospect of success.

1. Court of Appeal (Civil Division): In [2013] EWCA Civ 1, Lord Justice Rimer refused an extension of time, refused the proposed amendment and refused permission to appeal.
2. Employment Appeal Tribunal: His Honour Judge McMullen QC dismissed the applicant’s rule 3(10) application, directed that no further action be taken and dismissed the appeal. Earlier paper-sift decisions were made by His Honour Judge Richardson and Langstaff J. The relevant EAT case number was UKEATPA/0224/11/ZT.
3. Employment tribunal: A tribunal of three dismissed the constructive unfair dismissal claim, finding that the applicant had not been dismissed and that there had been no fundamental breach of contract.