Ameyaw v Pricewaterhousecoopers Services Ltd

For an appeal from an Employment Tribunal case-management order, time ordinarily runs from the date on which the Tribunal sends the parties a written record of the order, rather than from its oral announcement. Where a separate written record is sent during a merits hearing, a direct appeal from that decision must be brought within time from that record.

A party may nevertheless rely on an unappealed procedural decision as contributing to an overall unfair hearing. That route does not permit a time-barred direct challenge to be repackaged as a fairness appeal where no wider unfairness is alleged. An appellate tribunal will not interfere with an adjournment decision made by proper consideration of relevant matters, without irrelevant considerations or perversity.

The Claimant brought consolidated complaints of race and sex discrimination, harassment and victimisation under the Equality Act 2010. During a lengthy merits hearing, her direct-access counsel sought an adjournment to prepare cross-examination. The Employment Tribunal refused the requested adjournments on 4 and 5 May 2017, but allowed limited time and later additional cross-examination time.

A written record of the refusals was sent in October 2017. A first appeal was dismissed. The Tribunal later dismissed all substantive complaints in a reserved decision sent on 14 March 2018. The Claimant's second appeal challenged the adjournment refusals as rendering the hearing unfair and advanced two limited reasons challenges. The central issues were time limits, abuse of process, procedural fairness and the adequacy of the Tribunal's reasons.

1. Appeal dismissed. The procedural grounds were, in substance, a renewed direct challenge to the adjournment decisions of 4 and 5 May 2017. The Tribunal's written decision of 29 September 2017, sent on 18 October 2017, sufficiently recorded those decisions. Time to appeal them in their own right therefore ran from that date, not from either their oral announcement or the later merits judgment.

2. Rule 3 of the Employment Appeal Tribunal Rules 1993, read consistently with the applicable Practice Direction, makes the written record material both to the documents required for an appeal and to the time limit. A Tribunal may record a case-management decision separately or within its substantive decision. If it sends a separate record, a direct appeal must be brought from it in time.

3. The court accepted that a party may rely on an individual procedural decision, even if no separate timely appeal was brought, as part of a genuine challenge to the overall fairness of a hearing. Here, however, the amended grounds identified no wider feature of the hearing as unfair. Apart from two unrelated reasons challenges, they attacked only the two adjournment decisions. The attempt to revive those challenges was therefore out of time and an abuse of process.

4. In any event, the Employment Tribunal exercised its discretion properly. It understood that counsel sought time to prepare and that the hearing might go part heard. It was entitled to weigh the advanced stage of the hearing, the risk of delay, the impact on witnesses, available judicial resources, costs and the Claimant's prior representation arrangements. It was also entitled to conclude that the Claimant's loss of counsel did not materially alter an application which still sought time to reinstruct him. The decisions were neither perverse nor unfair.

5. The two reasons challenges also failed. The Tribunal had not adopted counsel's submission that an allegation was unsupported by evidence, and its reasons adequately addressed the relevant complaint. Its detailed findings on the A1/1 project did not require express discussion of every document. The dismissal of all claims accordingly remained undisturbed.

• Employment Appeal Tribunal: appeal dismissed: [2019] UKEAT 0292_18_1112.
• Employment Tribunal: dismissed all substantive discrimination, harassment and victimisation complaints in a reserved decision sent on 14 March 2018.
• Employment Tribunal: its written record of the case-management decisions, dated 29 September 2017 and sent on 18 October 2017, recorded refusals of the relevant adjournment applications.