Cheema & Anor (t/a JS Carpets) v Kumar

An appeal under rule 3(10) should proceed only where it discloses reasonable grounds raising an error of law. The EAT must form its own view on the material before it and must dismiss an appeal which has none.

Disclosure need not be ordered where it seeks to revisit an immigration-status issue already examined on review and serves only to delay enforcement. A postponement may properly be refused where the medical material does not adequately explain the condition, its likely duration, or why attendance or travel is impossible.

The claimant succeeded before the Employment Tribunal in claims for unfair dismissal and associated monetary payments. The respondents did not appeal the substantive decisions. They instead sought a review, alleging that the claimant had worked unlawfully because of his immigration status.

The Tribunal reviewed its judgment, considered the disclosure and rejected that allegation. It left its substantive judgment unchanged and made a costs order against the respondents. The respondents appealed those orders and, shortly before the rule 3(10) hearing, sought a postponement and further disclosure from the claimant, the UK Border Agency and a former employer.

The central questions were whether the further applications should be granted and whether the appeal against the review decision disclosed any reasonable ground of appeal.

1. The appeal was dismissed. The applications for a postponement and for disclosure were also dismissed. The EAT concluded that the appeal disclosed no reasonable grounds and would proceed no further.

2. The judge independently applied the rule 3 approach described in Haritaki v SEEDA [2008] IRLR 945. Although two earlier appellate judges had found the appeal hopeless, the judge considered the fuller material and reached the same conclusion. An appeal which identifies no error of law must be dismissed, since section 21 of the Employment Tribunals Act deprives the EAT of jurisdiction in the absence of a point of law.

3. The Employment Tribunal had applied the correct review criterion, namely whether the interests of justice required a review. Despite a technical error in describing the order, it had in substance conducted the review and decided not to vary its judgment. It was entitled to assess the immigration documents and to conclude that there was no illegality which barred enforcement. Any possible irregularity was confined to a few weeks, whereas the claim arose from employment that had thereafter been lawful for more than two years. No error of law was shown in the refusal to alter the judgment or in the costs order.

4. Further disclosure was unjustified. The requested material concerned an issue already canvassed, disclosed and determined on the review. Ordering it would revisit old ground, was not in the interests of justice, and was inconsistent with the overriding objective.

5. The medical material did not provide a sufficient basis to vacate the hearing. It did not adequately state the diagnosis, likely duration, or why travel for the hearing was prevented. There was also no explanation why the joint respondent could not present the case. The postponement was therefore refused.

• Employment Appeal Tribunal: dismissed the respondents’ rule 3(10) appeal from the review and costs orders, and refused their related postponement and disclosure applications.
• Employment Tribunal: at a review hearing on 3 January 2012, reviewed the substantive judgment but left it unchanged, rejecting the alleged illegality and awarding the claimant costs.
• Employment Tribunal: on 26 and 27 July 2011, upheld the claimant’s unfair-dismissal and monetary claims.
• Employment Tribunal: on 5 April 2011, held that the claimant had sufficient service to bring an unfair-dismissal complaint.