Paszkiewicz v Jeyes Ltd

A second appeal requires a point of principle or practice, or another compelling reason. An appeal to the Employment Appeal Tribunal is confined to points of law, so dissatisfaction with factual findings cannot satisfy that threshold.

For redundancy, the relevant question is whether the employer’s requirements for employees to carry out work of a particular kind have ceased or diminished. The work itself may continue under a reorganisation. A time-barred earlier discrimination complaint does not create a live issue in a later dismissal appeal.

The applicant, an International Commercial Manager, challenged his dismissal on redundancy and age-discrimination grounds. The Employment Tribunal dismissed both claims, finding that a major restructuring had reduced the requirement for employees to perform work of that kind and that the selection process was fair.

Mitting J rejected the appeal to the Employment Appeal Tribunal. Lady Stacey, sitting alone, dismissed the subsequent appeal under rule 3(10) of the Employment Appeal Tribunal Rules 1993. Sir Stephen Sedley later refused permission to appeal. The Court of Appeal was asked to extend time for a second application for permission to appeal.

Disposition

Lord Justice Tomlinson refused the application for an extension of time and refused permission to pursue a second appeal.

1. A second appeal is subject to the stringent requirement that the court be satisfied that a point of principle or practice, or another compelling reason, is raised. The applicant’s case disclosed no such issue.
2. An appeal to the Employment Appeal Tribunal lies only on a point of law. The EAT cannot revisit findings of fact merely because an applicant disagrees with them. The Employment Tribunal had made clear findings that the employer’s restructuring had reduced the relevant requirement for employees and that the selection decision was reasonable.
3. The statutory redundancy test focuses on whether the business’s requirements for employees to carry out work of a particular kind have ceased or diminished. It does not require the amount of work itself to have disappeared. An employer may reorganise the performance of continuing work, and the fact that another employee subsequently undertakes elements of the former role does not of itself negate redundancy.
4. The applicant’s arguments concerning the younger employee’s later departure, the continuation of budgeted work and the employer’s business choices could not establish an error of law. They either challenged factual conclusions or matters irrelevant to the statutory issue.
5. Any age-discrimination complaint arising from the earlier appointment in October 2011 was time-barred. The only potentially live discrimination issue concerned the 2012 dismissal, but no appealable error was shown in relation to it.

• Court of Appeal (Civil Division): In [2015] EWCA Civ 904, Lord Justice Tomlinson refused an extension of time and refused permission for a second appeal.
• Court of Appeal permission stage: Sir Stephen Sedley refused permission to appeal, concluding that no live issue of law was shown and noting that the earlier age-discrimination complaint was time-barred.
• Employment Appeal Tribunal: Mitting J rejected the initial appeal grounds. Lady Stacey, sitting alone, dismissed the rule 3(10) appeal on 2 April 2014, sealed on 15 April 2014, holding that no error of law had been demonstrated.
• Employment Tribunal, Bury St Edmunds: Employment Judge Pritchard-Witts dismissed the claims for unfair dismissal and age discrimination, finding a genuine redundancy situation and a fair selection process.