USDAW & Anor v UNITE The Union & Ors (Redundancy : Collective consultation and information)

Permission to appeal from the Employment Appeal Tribunal is available only on a question of law. Applying the ordinary permission criteria, permission may be justified by reasonable prospects of success or, more importantly, a compelling reason for appellate clarification.

Where a public authority seeks to advance new points after having declined to participate below, the Tribunal may grant permission subject to conditions. In exceptional circumstances those conditions may include an indemnity for the opposing claimants’ reasonable Court of Appeal costs. A stay of the Tribunal’s substantive order may nevertheless be appropriate pending the appeal.

The Secretary of State applied for permission to appeal to the Court of Appeal from a sealed judgment of a three-person Employment Appeal Tribunal in two collective redundancy consultation appeals which had been heard together.

The Secretary of State had not participated in the earlier proceedings, despite invitations to do so. He apologised and relied on the importance of the domestic and European-law issues, the value of the claims, and a reference to the CJEU in Lyttle v Bluebird UK Bidco Ltd C-182/13 NIIT.

The Tribunal had to decide whether permission should be granted, whether the Secretary of State could be a party to both appeals, and what conditions, including costs protection and a stay, should accompany permission.

1. Permission granted conditionally. The Secretary of State had a reasonable prospect of success on some proposed grounds. There was also a compelling reason for permission because the earlier EAT judgment substantially affected the approach to the relevant legislation, the points required authoritative clarification, and the CJEU reference might be determinative.

2. Constitution of the Tribunal. Under section 12 of the Enterprise and Regulatory Reform Act 2013, this post-commencement permission application was properly heard by a judge alone. The substantive EAT judgment had been sealed and was effective; the proceeding was therefore governed by the procedure for permission to appeal to the Court of Appeal.

3. Costs condition. The EAT had a wide discretionary power to impose conditions on permission. The Secretary of State’s failure to participate below, the proposed new arguments, the likely further delay, and the claimants’ position as respondents defending an extant EAT judgment made it just to require him to indemnify their reasonable Court of Appeal costs on the standard basis. The condition also required him to maintain his offer not to seek costs from them if successful.

4. Stay and joinder. The Tribunal refused to require immediate payment of protective awards or an indemnity against repayment. It stayed its order pending appeal, with liberty to apply to the Court of Appeal. The two appeals remained joined, and the Secretary of State was to be a full party to the Ethel Austin appeal.

• Employment Appeal Tribunal: A three-person EAT gave judgment on 30 May 2013; the corrected judgment was sealed on 8 July 2013 in UKEAT/0547/12 and UKEAT/0548/12.
• Employment Appeal Tribunal: On this application, permission was granted for a further appeal to the Court of Appeal, subject to conditions, and the EAT order was stayed pending that appeal.