McGrath v Ministry of Justice

Permission to appeal should be refused where the proposed appeal has no possibility of success. A point not permitted to proceed in the Employment Appeal Tribunal cannot be raised in the Court of Appeal merely because it is described as jurisdictional. A preliminary hearing under rules 53 and 55 may be conducted by an employment judge alone, including where the issue may determine liability. The Court of Appeal will not grant permission merely to comment on changes to tribunal composition authorised by Parliament.

Mr McGrath, a part-time lay member of the Employment Tribunal, brought a claim under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 concerning exclusion from the judicial pension scheme. He sought to compare his work with that of a full-time salaried employment judge. Judge Macmillan, sitting alone at a preliminary hearing, dismissed the claim because the work was not the same or broadly similar. The Employment Appeal Tribunal allowed only an unfairness ground to proceed and then dismissed the appeal. Mr McGrath sought permission to appeal, challenging the tribunal's composition, the comparator decision and reliance on O'Brien and Matthews v Kent. The central issues were whether the unpermitted grounds could be raised and whether any proposed appeal had a prospect of success.

Application for permission to appeal dismissed. Lord Justice Longmore held that the proposed appeal could not succeed.

1. The challenge to the constitution of the Employment Tribunal could not be pursued in the Court of Appeal. The point had not been permitted to proceed in the Employment Appeal Tribunal, and there was no EAT decision on it. The fact that the complaint was characterised as jurisdictional did not bypass that procedural requirement. The reliance on Jafri v Lincoln College was therefore rejected.
2. In any event, the preliminary hearing was properly conducted by an employment judge alone. Rule 53 treated a hearing determining a substantive preliminary issue, including an issue capable of determining liability, as a preliminary hearing. Rule 55 provided for such hearings to be conducted by an employment judge alone, subject to the procedure for requesting a full tribunal. The hearing was preliminary because it did not finally dispose of the claim even if the claimant succeeded.
3. The grounds relying on O'Brien and Matthews v Kent were also technically outside the proposed appeal. Even if considered, they disclosed no arguable error. The roles were not the same or broadly similar. The material differences included the salaried judge's wider range of cases, leadership of the hearing and subsequent deliberations, delivery of the full written decision, and responsibility for case management.
4. The Court of Appeal would not grant permission so that it could comment on whether changes to tribunal composition were desirable. The relevant change had been authorised by Parliament, and its merits were not a matter for appellate comment.

• Court of Appeal (Civil Division): Lord Justice Longmore dismissed the oral application for permission to appeal on 17 March 2016. Permission had previously been refused on the papers by Lewison LJ.
• Employment Appeal Tribunal: Langstaff J rejected all grounds at the sift except the unfairness ground. Judge Peter Clarke subsequently dismissed the appeal on 14 January 2015 and had earlier dismissed an application concerning the sift decisions on 25 September 2014.
• Employment Tribunal: Judge Macmillan, sitting alone at a preliminary hearing on 13 March 2014, dismissed the part-time worker discrimination claim.