Atkins v Castaways (Chippy) Ltd

An appeal to the Employment Appeal Tribunal must identify an error of law. Findings of fact, including assessments of credibility and the preference for one party’s evidence, do not ordinarily raise such an error.

An unsubstantiated allegation that an Employment Judge was biased, based merely on dissatisfaction with the conduct or outcome of proceedings, has no reasonable prospect of success. A tribunal’s findings that a complaint was out of time, that no extension was just and equitable, and that the substantive treatment was not unfavourable could not be reopened where no legal error was shown.

The Claimant brought claims for constructive unfair dismissal and sex discrimination, alleging unfavourable treatment connected with pregnancy and matters said to have led to her resignation.

A three-person Employment Tribunal heard the claims in May 2012. At a review hearing in 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 undertaken. It rejected the substantive claims, preferring the Respondent’s evidence and finding no fundamental breach of contract.

The Claimant appealed and alleged, among other matters, error on time limits, a continuing act, and actual bias by the Employment Judge. The central issue was whether those complaints disclosed an arguable error of law.

1. The rule 3(10) application and the underlying appeal were dismissed. The Employment Tribunal had made full findings of fact, including credibility findings and findings on limitation. The appeal was an attempt to reargue those factual conclusions rather than to identify an error of law.
2. The Claimant did not challenge the Tribunal’s conclusion that complaints relating to matters before maternity leave were out of time. The later suggestion of a continuing act had not been argued below. In any event, the Tribunal had found that an extension of time was not just and equitable and, lest that conclusion were wrong, had also found no unfavourable treatment.
3. The Tribunal’s conclusion that no fundamental breach of contract had been established in relation to the Claimant’s return to work and request for flexible working was a factual conclusion reached after applying the relevant law. It disclosed no error of law.
4. The allegation of actual bias by the Employment Judge was wholly unsubstantiated. The fact that the judge conducted ordinary case management, or that the Tribunal preferred the Respondent’s evidence, did not support an allegation of unfairness or bias. Applying the approach in Kennaugh v Lloyd Jones, unsupported assertions of bias based on an adverse outcome should not be made.
5. There was therefore no reasonable prospect that a full EAT hearing on the alleged bias or procedural unfairness would succeed.

• Employment Appeal Tribunal: The rule 3(10) application and underlying appeal were dismissed.
• Employment Tribunal: Following hearings on 8–9 May 2012 and a review hearing on 2 November 2012, the Tribunal rejected the claims. It held the risk-assessment complaint out of time and found, alternatively, that a risk assessment had been undertaken.