Stewart v Royal Mail Group Ltd

Permission to appeal should be refused where the proposed appeal has no real prospect of success and no other compelling reason warrants a hearing. An appellate court will not revisit an Employment Tribunal’s findings of fact, particularly findings based on witnesses seen and heard, absent compelling reasons. In an unfair-dismissal challenge, findings that the employer held a genuine belief in misconduct, had reasonable grounds, conducted a reasonable investigation and followed a fair process leave no arguable error merely because the claimant disputes the facts. Time limits for appealing to the Employment Appeal Tribunal require strict compliance. An honest explanation does not justify substantial delay where the appellant had the relevant documents and knew, or should have known, that the claim had been struck out.

The applicant, a postal operative employed by Royal Mail, brought two Employment Tribunal claims following disciplinary dismissals. Claim 1 included a race-discrimination claim and was struck out after the applicant failed to comply with an Unless Order. Claim 2 challenged his later dismissal and was dismissed by Employment Judge Cassel.

The applicant lodged one notice of appeal against both matters. It was in time for claim 2 but more than six months late for claim 1. The Registrar refused an extension of time, and Judge Richardson dismissed the appeal against that refusal. In relation to claim 2, Simler J refused permission to appeal and directed that no further action be taken. The central issues were whether either proposed appeal disclosed an arguable error of law or otherwise justified a further hearing.

Both applications for permission to appeal were dismissed. The Court agreed with the earlier paper refusals that neither proposed appeal had a real prospect of success and that no other compelling reason justified a hearing.

1. Claim 2. The Employment Tribunal had made detailed findings that Royal Mail genuinely believed the applicant had committed gross misconduct, had reasonable grounds for that belief and had conducted a reasonable investigation. The applicant had been informed of the allegations, given the relevant evidence, allowed a reasonable opportunity to respond, and the decision-maker had undertaken further checks after identifying a factual conflict. The slight delay in providing witness statements caused no demonstrated disadvantage. Royal Mail had also made reasonable attempts to convene the internal appeal, and the refusal to revive it was not a decision that no reasonable employer could have reached.
2. The applicant’s challenge substantially disputed the factual findings. The Court would not revisit findings made by a tribunal which had seen and heard the witnesses unless there were compelling reasons. No error of law by Simler J or the Employment Tribunal was arguable.
3. Claim 1. The time for appealing to the Employment Appeal Tribunal was generous, but strict compliance with the applicable time limit was required and extensions were not readily granted. The applicant had the relevant documents by July 2013 and should have read them carefully. He knew by December 2013 that the discrimination claim had been struck out, yet delayed lodging his notice of appeal until February 2014. His honest evidence and difficult circumstances did not provide a good excuse for the substantial delay.

1. Court of Appeal (Civil Division): On 9 December 2015, the Court reconsidered the refusals of permission to appeal and dismissed both applications: [2015] EWCA Civ 1527.
2. Employment Appeal Tribunal: Simler J refused permission to appeal against the handling and dismissal of claim 2. Judge Richardson dismissed the appeal against the Registrar’s refusal to extend time for appealing in claim 1.
3. Employment Tribunal: Employment Judge Cassel dismissed claim 2. Claim 1 had earlier been struck out after an Unless Order took effect following non-compliance.