Hepburn v Notts Gymnastics Academy

An appeal from an Employment Appeal Tribunal requires a properly formulated question of law. A judge need not set out the informed observer test in detail if the judge knew and applied the correct legal test. Allegations of bias ordinarily involve factual assessment and rarely provide a successful basis for further appeal. Complaints about interruptions, case management, credibility, or the assessment of evidence generally do not disclose legal error. A conclusion that a procedural failing would not have altered the outcome is likewise ordinarily a factual assessment open to the tribunal.

The claimant, a gymnastics coach, brought claims of direct sex discrimination, harassment and victimisation against his employer. The Employment Tribunal dismissed the claims, declined to review its decision, and ordered him to pay £3,500 in costs. The Employment Appeal Tribunal allowed only the costs issue and the question whether new evidence concerning the timing of his Criminal Records Bureau clearance should have been admitted to proceed to a full hearing.

The claimant sought permission to appeal to the Court of Appeal on grounds concerning alleged tribunal bias, credibility, the treatment of harassment and victimisation, and the assessment of his evidence. The central issue was whether those grounds raised an appropriate question of law.

1. Application refused. Lord Justice Longmore rejected the application for permission to appeal. The two issues already permitted to proceed before the Employment Appeal Tribunal remained unaffected.
2. The alleged bias grounds did not raise a suitable question of law. Although the Employment Appeal Tribunal judge had not set out the informed observer test from Porter v Magill in detail, he knew the applicable tests, examined the allegations in detail, considered the tribunal’s responses, and reached a factual conclusion open to him.
3. Complaints about interruption, cutting off questions, failure to accept evidence, and inadequate treatment of particular points were matters of tribunal case management or factual evaluation. They did not, without more, disclose legal error or establish apparent bias.
4. The Employment Tribunal had considered the harassment and victimisation complaints and was entitled to regard the alleged failure to deal with them promptly as peripheral, concluding that a different approach would not have changed the result. That conclusion raised no question of law.
5. Complaints about credibility similarly disclosed no appealable point of law. The proposed grounds therefore could not proceed to the Court of Appeal.

• Court of Appeal (Civil Division): Permission to appeal from the Employment Appeal Tribunal was refused. The Employment Appeal Tribunal had dismissed certain proposed grounds but allowed the costs issue and the question concerning new evidence about Criminal Records Bureau clearance to proceed to a full hearing.