Malgorzata Jolanta Kopec, R (on the application of) v London Central Employment Tribunal

Judicial review is a remedy of last resort. Where Parliament has provided a specialist statutory appeal, the court will ordinarily refuse permission for judicial review of decisions, acts or omissions falling within that appeal route.

An appeal to the Employment Appeal Tribunal under Employment Tribunals Act 1996, section 21(1), is not confined to final decisions. It may concern any question of law arising in proceedings, including procedural unfairness, bias, breaches of natural justice and failures to comply with procedural rules.

Judicial review may remain available in an exceptional case where the alternative remedy is inadequate or provides an unsatisfactory safeguard. The specialist appeal route was adequate in this case.

The claimant sought permission to judicially review decisions, delays and alleged procedural failures by the London Central Employment Tribunal in proceedings against her former employer.

Before the renewed application, permission had been refused on the papers. The Employment Tribunal subsequently held a full merits hearing and rejected the claimant’s employment claims. The claimant then sought to add challenges to that final judgment and to post-judgment decisions.

The central issue was whether the claimant’s complaints should proceed by judicial review or through the statutory appeal and related procedures available before the Employment Appeal Tribunal.

1. Permission refused. Permission to apply for judicial review was refused both in relation to the original claim and the proposed amended claim. Permission to amend was also refused, and consequential applications fell away.
2. Section 21(1) of the Employment Tribunals Act 1996 provides an appeal to the Employment Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings before, an Employment Tribunal. The jurisdiction is therefore not limited to appeals from final decisions. It can include interlocutory decisions, procedural omissions, failures to comply with procedural rules, allegations of bias and breaches of natural justice or the right to a fair hearing.
3. The court followed the established principle that judicial review is a remedy of last resort, as stated in R (Cart) v Upper Tribunal [2012] 1 AC 663 and R (Sivasubramaniam) v Wandsworth County Court [2003] 1 WLR 475. Where Parliament has created a statutory appeal, the court must also consider the legislative purpose and whether that alternative remedy provides a satisfactory safeguard. The approach in R (G) v Immigration Appeal Tribunal [2005] 1 WLR 1445 supported that analysis.
4. This was not an exceptional case. The Employment Appeal Tribunal was a specialist tribunal with suitable expertise and powers to supervise and correct errors by the Employment Tribunal, including by setting aside decisions, ordering a rehearing or substituting its own decision. The principles were consistent with Riniker v Employment Tribunals and Regional Chairmen [2009] EWCA 1450.
5. The claimant had further potential remedies concerning reconsideration and anonymisation applications before the Employment Tribunal, with an onward right of appeal. The court expressed no final view on the merits of the claimant’s complaints. Any appeal might be out of time, but questions of extension and arguability were for the Employment Appeal Tribunal.

• High Court (Administrative Court): permission to apply for judicial review refused; permission to amend refused.
• Earlier High Court decisions: urgent consideration was refused by Ellenbogen J on 19 August 2024 and reconsideration was refused on 20 August 2024. Permission was subsequently refused on the papers by Mr C M G Ockelton, sitting as a Deputy High Court Judge, on 4 October 2024.