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

The claimant sought permission for judicial review of multiple case-management and substantive decisions of the London Central Employment Tribunal following a full merits hearing and reserved judgment dated 11 October 2024. The court refused permission. The sole and dispositive legal principle applied was that judicial review is a remedy of last resort where there is an adequate alternative statutory appeal: the Employment Tribunals Act 1996, s.21, provides an appeal route to the Employment Appeal Tribunal on questions of law arising in employment tribunal proceedings. The judge held that the Employment Appeal Tribunal is the appropriate forum for challenges to interlocutory and final tribunal decisions, including complaints of procedural unfairness, bias or errors of law, and that the claimant had not shown any exceptional circumstances rendering judicial review appropriate. Permission to amend the claim to add post-judgment grounds was also refused for the same reasons.

This is a renewed application for permission for judicial review by a claimant who had brought employment claims against her former employer before the London Central Employment Tribunal. The Tribunal conducted a full merits hearing (9–18 September 2024) and promulgated a reserved judgment (11 October 2024, sent 23 October 2024) rejecting the claimant's claims.

The claimant's grounds challenged (i) a November 2023 preliminary case management hearing and subsequent case management orders (alleging Article 6 breach, incorrect record, delay and bias); (ii) the Tribunal's handling of proposed amendments to particulars of claim and the respondent's failure to comply with an order to amend; (iii) alleged failures to respond to the claimant's applications and complaints about non‑compliance by the respondent; (iv) enforcement failures by the Tribunal; and (v) a cumulative allegation of bias and denial of a fair hearing. After the reserved judgment, the claimant sought to add further challenges concerning notice of the final hearing (Rule 58 Schedule 1 ET Regulations 2013), findings recorded in the reserved judgment, time‑limit dismissals, jurisdictional findings, the Tribunal's treatment of ADHD under the Equality Act 2010, witness reliability, and publication and reconsideration procedures (Rule 71 ET Rules).

The court considered prior orders refusing urgent relief and earlier refusals of permission. It reviewed legal authorities establishing that judicial review is normally inappropriate where a statutory appeal exists (R (Cart) v Upper Tribunal; R (Sivasubramaniam) v Wandsworth County Court) and that the Employment Appeal Tribunal has the competence to entertain interlocutory and procedural challenges. The judge analysed the Practice Direction to the Employment Appeal Tribunal and the available remedies (including re‑hearing) and concluded that the Employment Appeal Tribunal provided the appropriate and adequate route for challenge under s.21 Employment Tribunals Act 1996. The court therefore refused permission to apply for judicial review and refused permission to amend the claim to add the post‑judgment grounds. The court observed that any appeal to the Employment Appeal Tribunal would likely be out of time but that it would be for that Tribunal to decide on any application for an extension of time.

Permission to apply for judicial review was refused. The court concluded that the appropriate and adequate route to challenge Employment Tribunal case management decisions, interlocutory decisions and the reserved judgment is by way of appeal to the Employment Appeal Tribunal under section 21 of the Employment Tribunals Act 1996. The claimant did not demonstrate any exceptional circumstance rendering judicial review appropriate; accordingly, the renewed application for permission and the application to amend the claim to add post‑judgment grounds were refused.

The papers show prior High Court orders refusing urgent consideration and refusing permission. Ellenbogen J refused the claimant's application for urgent consideration on paper by order dated 19 August 2024 and maintained that refusal on reconsideration by order of 20 August 2024. A Deputy High Court Judge (Mr C M G Ockelton) refused permission to apply for judicial review on 4 October 2024. The present decision (Marcus Pilgerstorfer KC, Deputy High Court Judge) of 11 March 2025 refuses renewed permission and refuses permission to amend the claim.