Sud v London Borough of Ealing

Permission to appeal in an employment case requires an arguable error of law with a real prospect of success. Findings of fact cannot be challenged merely because they are disputed; an error of law may arise where findings lack evidential support or contradict agreed or uncontradicted evidence.

On a renewed application, fuller written and oral submissions may show that the proposed grounds have sufficient prospects despite an earlier refusal of permission. Permission was granted where the disability-discrimination grounds and the separate challenge to a tribunal costs order were both arguably affected by legal error.

The applicant, a former employee of the respondent local authority, sought permission to appeal from the Employment Appeal Tribunal's refusal in May 2012 to allow her appeals from Employment Tribunal decisions dated 14 December 2009 and 14 May 2010.

The Tribunal decisions concerned disability-discrimination claims and an order requiring her to pay 50 per cent of the respondent's costs. Elias LJ had initially refused permission on the papers. On renewal, the applicant relied on a supplemental skeleton argument and an advocate's note prepared after pro bono representation became available.

The central question was whether the proposed disability-discrimination and costs grounds disclosed arguable errors of law with a real prospect of success.

1. Application granted. Lord Justice Mummery granted permission to appeal against both the disposal of the disability-discrimination claims and the costs order. He also granted permission to amend the grounds to advance a further challenge that the Employment Tribunal had taken an irrelevant consideration into account in exercising its costs jurisdiction.

2. An employment appeal is confined to an error of law. It does not permit a free-standing challenge to findings of fact. A factual finding may, however, disclose an error of law where it had no evidential basis or conflicts with agreed or uncontradicted evidence.

3. The correct permission question was whether the proposed grounds were arguable and had a real prospect of success. Although Elias LJ had previously refused permission, the later material dealt more fully with the alleged errors. It gave rise to a real prospect that the tribunals below had not received sufficient assistance and may have erred in deciding both the disability-discrimination issues and costs.

4. The costs challenge was a stand-alone appeal. Its viability did not depend on the outcome of the disability-discrimination appeal.

5. The appeal was directed to be heard by a court of three Lord Justices, including at least one with Employment Appeal Tribunal experience, with a one-day estimate. The court made clear that permission was not a determination of the merits and that an unsuccessful appellant might face a further costs order.

• Court of Appeal (Civil Division): on a renewed application, granted permission to appeal and permission to amend the grounds: [2013] EWCA Civ 140.
• Employment Appeal Tribunal: in May 2012, did not allow the applicant's appeals from the Employment Tribunal and did not grant permission to appeal further.
• Employment Tribunal: decisions of 14 December 2009 and 14 May 2010 determined disability-discrimination claims and made a costs order for 50 per cent of the respondent's costs.