Gala Tent Ltd v Chambers & Anor

The Court of Appeal’s jurisdiction is confined to appeals from the Employment Appeal Tribunal and does not extend to a direct appeal from an Employment Tribunal. Where fresh evidence, unavailable when the EAT decided the matter, arguably shows that its decision rested on a fundamentally flawed factual understanding, the permission application may be adjourned so that the evidence can be formally produced and its admission considered inter partes by a full court. An extension of time for the application before the Court of Appeal may be granted separately.

The respondent succeeded before the Employment Tribunal in claims arising from her dismissal, including unfair dismissal and sex discrimination. The employer’s appeal to the Employment Appeal Tribunal was out of time, and the Registrar refused an extension. On 2 July 2014, His Honour Judge Peter Clarke dismissed the employer’s appeal against that refusal. The employer then applied to the Court of Appeal, relying on evidence said to show that the EAT had misunderstood why the appeal documents were not delivered. The central issues were the Court’s jurisdiction, the proposed fresh evidence, and permission to appeal.

Application adjourned; extension of time granted in part.

1. The Court of Appeal had jurisdiction to entertain an appeal from the Employment Appeal Tribunal, but not a direct appeal from the Employment Tribunal. The application therefore proceeded only against the EAT’s refusal to extend time. An extension of time for the application before the Court of Appeal was granted insofar as it was sought. [4]
2. The employer’s evidence contradicted the explanation previously placed before the EAT. The EAT had proceeded on the understanding that the postal item had not been given the required postage. The employer asserted that payment had been made and the relevant posting instruction and barcode had been affixed. If correct, that evidence showed that the factual understanding underlying the EAT’s decision was fundamentally flawed and gave a real prospect of success on reconsideration. [7]–[8]
3. The Court directed the employer to provide the additional evidence by witness statement. The permission application was adjourned to a full court, which would decide inter partes whether the evidence should be admitted and, if permission to appeal were granted, hear the appeal. The stay remained in force. [8]–[9]
4. The employer was advised to consider applying to the EAT to set aside its refusal on the basis of fresh evidence. If successful, the employer was to notify the Court of Appeal so that the appeal could be withdrawn. [10]

• Court of Appeal (Civil Division) — The Court granted an extension of time for the application insofar as sought, directed further evidence, and adjourned the permission application to a full court. [2015] EWCA Civ 1063
• Employment Appeal Tribunal — On 2 July 2014, His Honour Judge Peter Clarke dismissed the employer’s appeal against the Registrar’s refusal to extend time for appealing.
• Employment Tribunal — Employment Judge Little’s judgment dated 10 October 2013 upheld claims of unfair dismissal and sex discrimination, with the harassment claim succeeding in part.