Atkins v Castaways (Chippy) Ltd

An appeal to the Employment Appeal Tribunal must identify an error of law. It cannot be used to reargue findings of fact, credibility assessments, or a tribunal’s preference for one witness’s evidence.

An allegation of judicial bias requires supporting evidence. The fact that proceedings were actively managed, or that the tribunal rejected a party’s evidence, does not establish actual bias or procedural unfairness.

Where an Employment Tribunal has made sustainable findings that a complaint was out of time and that no extension is just and equitable, an appeal which raises no legal challenge to those findings has no reasonable prospect of success.

The claimant brought claims of constructive unfair dismissal and sex discrimination, alleging unfavourable treatment connected with pregnancy and matters which caused her resignation. A three-person Employment Tribunal rejected the claims after hearings on 8 and 9 May. At a later review hearing on 2 November 2012, it held that the complaint concerning a pregnancy risk assessment was out of time and, in any event, that an assessment had been carried out.

The claimant appealed. Her notice of appeal had been rejected under rule 3 and that view was maintained on a rule 3(8) consideration. At the rule 3(10) hearing, she alleged, among other matters, a continuing act, error on time limits, and actual bias or unfair conduct by the Employment Judge. The central question was whether those contentions disclosed an arguable error of law.

1. The rule 3(10) application and the underlying appeal were dismissed. The appeal raised no question of law. The Employment Tribunal had made findings of fact after hearing the parties’ evidence, gave cogent reasons, and was entitled to prefer the respondent’s evidence to that of the claimant.
2. The claimant did not challenge the Tribunal’s finding that complaints concerning events before maternity leave were out of time. The late contention that there had been a continuing act had not been advanced below. In any event, the Tribunal had found that an extension was not just and equitable and had also found no unfavourable treatment before that date. Those were sustainable determinations and disclosed no error of law.
3. The Tribunal had addressed the risk-assessment complaint at review. It accepted evidence that an earlier account of the identity of the organisation involved in the assessment was an honest mistake, held the complaint out of time, and further held that an assessment had occurred. No appealable error arose from that conclusion.
4. The constructive-dismissal issue was likewise factual. The Tribunal had applied the relevant law on fundamental breach, rejected the claimant’s account where appropriate, and found that she had been offered alternative work before resigning. The Employment Appeal Tribunal could not reassess those findings.
5. The complaint of actual bias and unfair procedure was wholly unsubstantiated. Ordinary case management, including discussion of documents before evidence, did not demonstrate unfairness. A tribunal’s preference for the opposing party’s evidence was not evidence of bias. Applying the approach referred to in Kennaugh v Lloyd Jones, [2013] EWCA Civ 1, there was no reasonable prospect that a full appeal on actual bias would succeed.

• Employment Appeal Tribunal: At a rule 3(10) hearing, His Honour Judge McMullen QC dismissed the application and the underlying appeal.
• Employment Appeal Tribunal: The notice of appeal had been rejected under rule 3 by HHJ Birtles. On a rule 3(8) paper consideration, Langstaff P reached the same view.
• Employment Tribunal: A three-person tribunal rejected claims for constructive unfair dismissal and sex discrimination after hearings on 8 and 9 May. At a review hearing on 2 November 2012, it held the risk-assessment complaint out of time and found in any event that a risk assessment had been conducted.