USDAW v Ethel Austin Ltd (Practice and Procedure : Permission to appeal further)

Permission for a further appeal may be granted where the statutory requirement of a question of law is met and there is either a reasonable prospect of success or a compelling reason. A compelling reason may arise where a parallel reference to the CJEU may determine an important issue of statutory interpretation affecting substantial claims and wider industry practice.

The EAT may grant permission subject to appropriate conditions. In exceptional circumstances, a party seeking to advance new arguments after declining to participate below may be required to indemnify the opposing claimants for their reasonable Court of Appeal costs. A further appeal does not ordinarily suspend enforcement, but the EAT may stay its order pending appeal.

The Secretary of State applied for permission to appeal to the Court of Appeal from an earlier three-member EAT judgment concerning two appeals heard together. He had not participated in the Employment Tribunal or EAT proceedings despite invitations to do so, and apologised for that failure.

The application relied on proposed arguments concerning domestic and European legislation, and on a reference to the CJEU in Lyttle v Bluebird UK Bidco Ltd C-182/13 NIIT. The claimants opposed permission and sought conditions concerning costs, payment and any stay. The central issues were whether permission should be granted, on what conditions, and whether the Secretary of State could participate in both linked appeals.

1. Permission to appeal was granted. Section 37(1) of the Employment Tribunals Act 1996 provides the jurisdictional gateway: a further appeal lies only with permission and only on a question of law. The EAT’s practice is to grant permission where there are reasonable prospects of success or a compelling reason.

2. Both bases were met. Some proposed grounds had a reasonable prospect of success. More importantly, the issue required authoritative clarification. The pending CJEU reference in Lyttle concerned potentially determinative equivalent legislation. The issue affected the construction of the legislation, substantial claims and wider industrial practice. The Secretary of State’s earlier non-participation was not a basis for punishment, but it was material to the appropriate conditions.

3. The application was properly heard by a judge sitting alone. The earlier EAT judgment had been sealed and was effective. The application, made after the statutory change, was a new permission application governed by section 12 of the Enterprise and Regulatory Reform Act 2013.

4. The EAT could impose conditions on permission. The protective-costs principles discussed in Eweida and Corner House were relevant considerations, but this was not an ordinary application for protection in a costs-shifting jurisdiction. The exceptional circumstances justified requiring the Secretary of State to indemnify the claimants against any costs award in his favour and to pay their reasonable Court of Appeal costs on the standard basis.

5. The request for payment of the protective awards and an indemnity against repayment was refused. It would be unfair for persons ultimately not entitled to payment to retain it. The EAT’s order was stayed pending appeal, with liberty to apply to the Court of Appeal. The linked appeals were to remain joined, so that the Secretary of State was a full party to the Ethel Austin appeal.

• Employment Appeal Tribunal: permission was granted for a further appeal to the Court of Appeal, subject to conditions.
• Employment Appeal Tribunal: the application followed a three-member EAT judgment of 30 May 2013, corrected and sealed on 8 July 2013.
• Employment Tribunals: the Liverpool and London Employment Tribunals had not considered a CJEU reference necessary.