Khan v Royal Mail Group Ltd & Ors

A tribunal’s discretionary refusal to permit a party to withdraw concessions and advance a wider case will stand where the discretion was exercised on a proper and sound basis. Grounds not advanced before the lower appellate tribunal cannot ordinarily be raised for the first time in the Court of Appeal. Permission may nevertheless be granted on narrower grounds where the underlying decision is arguably affected by a misdirection of law, impermissible conclusions or inadequate reasons.

Khalid Khan appealed to the Employment Appeal Tribunal against the dismissal of 24 discrimination and harassment complaints. After receiving legal assistance, he withdrew 13 allegations and several complaints about procedural unfairness, leaving 11 allegations for the full appeal. He later sought to withdraw those concessions and revive wider grounds, including allegations of perjury, document fraud and procedural irregularity. The EAT refused that application and dismissed the appeal. The renewed application concerned whether that refusal was properly exercised and whether the Employment Tribunal had correctly addressed the burden of proof and given sufficient reasons.

1. The renewed application succeeded only to the limited extent that permission was granted to appeal against the EAT’s order of 29 January 2013. The permitted grounds concerned allegations 24, 23, 22, 20, 19, 15, 10, 9, 8, 4 and/or 2, and whether the Employment Tribunal misdirected itself on the burden of proof, reached impermissible conclusions or gave insufficient reasons, and whether the EAT erred in failing to identify such errors.

2. The EAT’s refusal to permit the applicant to withdraw concessions made after legal advice and advance wider grounds was a discretionary decision. Langstaff J’s reasons provided a proper and sound basis for that exercise of discretion. There was no seriously arguable case that irrelevant matters had been taken into account or relevant matters disregarded.

3. Complaints not advanced before the EAT could not be raised for the first time in the Court of Appeal. The EAT could not be criticised for failing to rule on a case that had not been made to it.

4. Permission was refused on all other grounds, including the revived complaints concerning bias, procedural unfairness, alleged perjury, document fraud, irregularity and the late policy document.

5. The permitted appeal was directed to a constitution of three Lords or Lady Justices, including one with employment-law experience, with a one-day time estimate.

1. Employment Tribunal: Following a 13-day hearing, the Central London Employment Tribunal dismissed all 24 discrimination and harassment complaints by judgment and reasons sent on 8 November 2010.
2. Employment Appeal Tribunal: The initial appeal was rejected at sift under rule 3(7) of the Employment Appeal Tribunal Rules 1993. After amendment, 11 allegations proceeded to a full hearing. The EAT dismissed the appeal and refused permission to withdraw the earlier concessions and reopen wider grounds, in the decision reported as [2012] UKEAT 0160_11_2901.
3. Court of Appeal (Civil Division): Limited permission to appeal was granted; permission on all other grounds was refused.