Igboji v Tesco Stores Ltd

On a renewed application for permission to appeal from the Employment Appeal Tribunal, the Court of Appeal’s task is confined to asking whether the proposed appeal has a real prospect of success because the EAT made an arguable error of law. The applicant cannot use the application to reargue facts, challenge the Employment Tribunal’s findings, rely on material not before it, or introduce a point never raised below. An Employment Tribunal’s account of its own procedure will not be tested by cross-examination before the appellate courts. Where the EAT has properly resolved the procedural issue, the Court of Appeal will not revisit it. Permission was refused.

The applicant, a former Tesco customer assistant, brought an unfair-dismissal claim after his summary dismissal for persistent failure to attend meetings and make contact during a disciplinary process. The Employment Tribunal found the dismissal fair. The Employment Appeal Tribunal rejected the proposed appeal under Rules 3(7) and 3(10) of the Employment Appeal Tribunal Rules 1993, under reference UKEATPA/1148/11/SM. HHJ Serota QC found no arguable substance in the Rule 3(10) application on 26 June 2012. Elias LJ refused permission on paper on 8 November 2012. The applicant renewed the application, raising procedural fairness, the absence of a written contract and further evidence, but did not attend. The central issue was whether those matters disclosed an arguable error of law in the EAT’s decision.

Application refused. The applicant had not identified any arguable error of law in the EAT’s decision, and the proposed appeal therefore had no real prospect of success.

1. The EAT’s jurisdiction was confined to appeals based on arguable errors of law. It had no jurisdiction to review the Employment Tribunal’s factual findings, save in the clearest cases of perversity. The Court of Appeal’s task on the renewed permission application was correspondingly narrow. It was not an opportunity to reconsider the facts or the weight of the evidence.
2. The procedural-fairness complaint concerned whether the applicant had been given an opportunity to make oral closing submissions. The accounts of the Employment Judge, a lay member and the respondent’s solicitor differed on whether he had read his written submissions aloud, but all supported the conclusion that he had been given an opportunity to address the tribunal orally and had declined to add anything. Neither the EAT nor the Court of Appeal would permit cross-examination of the Employment Tribunal panel. There was no basis to revisit the EAT’s conclusion.
3. The complaint that Tesco had not provided a written contract could not assist the applicant. Even if factually correct, it made no material difference to the conclusion that his continuing refusal to co-operate was a fundamental breach of contract. Further, the point had not apparently been put to the Employment Tribunal. Failure to determine a point not raised before it could not constitute an error of law, and there was no proper basis for raising it for the first time in the EAT.
4. Material not placed before the Employment Tribunal could not establish that it had made an error of law. Material that had been before it could assist only if linked to a specific legal error; a general reference to extensive bundles did not do so.

The Court of Appeal agreed with Elias LJ and HHJ Serota QC and refused the renewed application.

• Court of Appeal (Civil Division): Elias LJ refused permission to appeal on paper on 8 November 2012. On renewal, Rimer LJ refused permission.
• Employment Appeal Tribunal: Langstaff J directed under Rule 3(7) of the Employment Appeal Tribunal Rules 1993 that no further action be taken. On the Rule 3(10) application, HHJ Serota QC found no arguable error of law.
• Employment Tribunal: The Bury St Edmunds Employment Tribunal found that the summary dismissal for misconduct was fair. Written reasons were sent on 19 July 2011.