Lawson v the Governing Body of Aylesford School & Anr

An appeal lies against a subsisting order or decision, not against the reasons or findings supporting an order. Where the order against an appellant has been revoked, findings of fact are not freestanding decisions capable of sustaining an appeal. Earlier permission to appeal does not prevent the court revisiting jurisdiction after a material procedural change. Even if a discretion to hear the merits remained, it should not be exercised where the appellant chose revocation, the exercise would be one-sided, and there was no live claim to remit. The appeal was therefore dismissed without consideration of the substantive discrimination findings.

The appellant challenged an Employment Appeal Tribunal decision arising from lengthy Employment Tribunal proceedings in which the claimant, a teacher, succeeded on discrimination claims against him and the school. The Employment Appeal Tribunal dismissed the appeal subject to limited concessions. During the subsequent review process, the claimant failed to comply with disclosure orders concerning undisclosed criminal convictions. The Employment Tribunal revoked the relevant order and dismissed all claims against the appellant. He nevertheless pursued the appeal to obtain a substantive ruling that the underlying findings were wrong. The central issue was whether the Court of Appeal could, or should, hear an appeal directed only to findings and reasoning after the order against the appellant had ceased to exist.

Appeal dismissed. Lord Justice Underhill gave the judgment, with Lord Justices Kitchin and Tomlinson agreeing.

1. The court treated it as established that appeals are against orders, not reasoned judgments. Cie Noga d'Importation et d'Exportation SA v Australia and New Zealand Banking Group Limited [2002] EWCA Civ 1143; [2003] 1 WLR 307 was identified as the most recent and authoritative support. The court regarded the language of section 37 of the Employment Tribunals Act 1996, conferring jurisdiction over appeals from decisions or orders of the Employment Appeal Tribunal, as not substantially different from section 16 of the Senior Courts Act 1981.
2. The order against the appellant had been revoked and the claims against him dismissed. The proposed appeal was in substance directed against the Employment Tribunal’s decision, but the underlying findings were not free-standing decisions. The Employment Appeal Tribunal’s surviving order could not provide a jurisdictional basis for challenging findings belonging to a judgment that no longer existed against the appellant. The court could not set aside an already revoked judgment or findings alone.
3. The fact that the findings remained relevant to the school’s liability did not alter the position. The school had not appealed, and there was no surviving judgment against the appellant. A previous grant of permission to appeal, made in different circumstances and on an ex parte application, did not prevent the court revisiting jurisdiction after revocation.
4. Even assuming a discretion to hear the appeal, it would not have been appropriate to exercise it. The appellant had chosen to obtain revocation and dismissal on procedural grounds, and could not then seek a merits review of the revoked decision. The exercise would have been inherently one-sided because the claimant had no continuing interest in defending an order that no longer existed. Nor could the court usefully remit findings unattached to any live claim.

The court accordingly dismissed the appeal on the preliminary ground and declined to consider the substantive grounds.

• Court of Appeal (Civil Division), [2014] EWCA Civ 491: dismissed the appeal on the ground that there was no subsisting appealable order and declined to consider the substantive grounds.
• Employment Appeal Tribunal, judgment dated 3 October 2008: dismissed the appeal, save for specified findings which were conceded not to concern the appellant’s own decisions.
• Employment Tribunal, judgment sent 11 October 2007 and subsequent review: originally upheld discrimination complaints; following procedural default and review, revoked the relevant order and dismissed all complaints against the appellant.