Noel Deans v RBL Law Ltd (in liquidation) & Ors

An appeal to the Employment Appeal Tribunal must identify a concise and arguable error of law. Grounds that merely challenge findings of fact, re-argue the case, or use general assertions such as error of law, inadequate reasoning or perversity are insufficient. An amendment to grounds of appeal requires permission and is governed by the overriding objective. Relevant considerations include compliance with the Rules and Practice Direction, delay, prejudice, the nature and merits of the proposed amendment, and the efficient use of tribunal resources. The discretion must not be fettered by rigid rules. The proposed amendments did not disclose arguable errors of law, and permission to add a late ground was refused.

The claimant, a specialist employment solicitor, brought claims including protected disclosure detriment, race discrimination, race-related harassment, victimisation, constructive unfair dismissal and wrongful dismissal against his former firm and three individuals. The Employment Tribunal dismissed the claims on the merits, save that one harassment complaint was dismissed as out of time. The claimant appealed. At a preliminary hearing, he sought to substitute wholly redrafted grounds of appeal. The issues were whether permission should be granted to amend the Notice of Appeal and whether any proposed ground raised an arguable error of law capable of proceeding to a full hearing.

1. Outcome. The appeal against RBL Law Ltd was dismissed on withdrawal. The proposed amended grounds against the remaining respondents were not permitted to proceed, and the appeal was dismissed.
2. Requirements for grounds. Under section 21 of the Employment Tribunals Act 1996, the EAT may intervene only on a question of law. Grounds must identify the alleged error clearly and briefly. Generalised complaints, disguised challenges to factual findings, attempts to re-argue the case, and inadequately particularised perversity grounds do not satisfy that requirement.
3. Amendment. The discretion to permit amendment is governed by the overriding objective in rule 2A of the Employment Appeal Tribunal Rules 1993. The factors identified in Khudados v Leggate and Others [2005] I.C.R. 1013 are relevant but do not constitute rigid hurdles. The nature of the amendment, compliance with procedural requirements, delay, prejudice, merits and the efficient conduct of EAT business must be assessed in the circumstances of the particular case. A full, honest and acceptable explanation for delay is generally required, especially for new grounds.
4. The claimant’s proposed grounds did not disclose arguable errors. The Employment Tribunal was entitled to find that there was no genuine belief supporting the alleged protected disclosures; that the harassment complaint was out of time and should not be extended; that the accepted reasons for the alleged detriments were non-discriminatory; and that the allegation of antisemitism was made solely because of a genuine belief that the claimant was antisemitic. Those were findings open to the Employment Tribunal.
5. Although the challenge to the victimisation finding came closest to being arguable, the relevant factual finding was open to the Tribunal. The proposed amendment concerning the out-of-time harassment complaint was also refused because it was raised late and without adequate justification. The EAT emphasised that it does not second-guess factual findings and that arguable errors of law should be capable of brief formulation.

• Employment Appeal Tribunal: The Employment Tribunal judgment was sent to the parties on 3 September 2024. The EAT refused permission to add the proposed amended grounds and dismissed the appeal, including the appeal against the first respondent on withdrawal.