England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC21
		Thursday, 22 November 2001

1. LORD JUSTICE MUMMERY: This is a renewed application for permission to appeal. The application is made by Mr. Breen on behalf of Read Vale Manufacturing Company, who wish to appeal from the order made by the Employment Appeal Tribunal on 19th March 2001 at a preliminary hearing. The Appeal Tribunal dismissed an appeal by Read Vale Manufacturing Company against the decision of the Employment Tribunal sitting at Manchester. They gave extended reasons for their decision in favour of Mr. McCormack, the applicant in the proceedings, the extended reasons being sent to the parties on 17th January 2000.
2. The application for permission came before me on the papers on 19th July, and I refused to grant permission on the basis that the proposed appeal had no real prospect of success. I expressed the view:

"There is no error of law either in the decision of the Employment Tribunal or in the procedure adopted at the hearing, including the curb on cross-examination. This is an attempt to relitigate an issue of fact (i.e. the finding of no resignation.) I agree with the judgment of the EAT."

3. As is their right, Read Manufacturing wish to renew this application orally. Mr. Breen has submitted that he has no further arguments in addition to those already set out in the skeleton argument which accompanied the application for permission on the papers. He has referred, by way of refreshing my memory, to a number of the points which he made in that skeleton argument and which were made to the Appeal Tribunal, presided over by Hooper J, at the hearing in March. I have re-read the papers since the renewed application was submitted and refreshed my memory, and I have assured Mr. Breen that I was open to persuasion on the issue of whether permission should be granted, if he was able to identify an error of law that had a real prospect of success. I am afraid that, despite looking at the matter again and giving further thought to the submissions that Read Vale Manufacturing wish to put before the court, I am still unable to identify any legal error in the way in which the hearing was conducted. I take into account not only the complaint by Read Vale about the way that cross-examination was curbed, but also the comments of the chair on the allegations that were made about the conduct of the cross-examination. I have also looked again at the extended reasons, and I have to say that I am of the same view that I expressed in writing on 19th July. I can well understand that parties who lose in the Employment Tribunal may feel dissatisfied with the result and wish to have the case reconsidered by another tribunal or court, but Parliament has decided, ever since the system of employment tribunals was established, that employment tribunals should be the fact finding body, and that, except in rare cases, their decisions on factual matters are final. Any further hearing by way of an appeal should not be a retrial or rehearing of the case before the Employment Tribunal. The appeal system is limited to considering questions of law. A question of law only really arises out of the exercise by the employment tribunal of its powers to control the way in which the case before it proceeds. Matters as to what are proper subjects for further cross-examination are matters for rulings by the tribunal chairman, having regard to the relevant issues in the case. It may be a matter of grievance to litigants that they have not been allowed by the tribunal to cross-examine on every point that they wish to or to lead evidence on every point that they wish to, but it would require a very strong case -- that is not this case -- to persuade the Court of Appeal to interfere with the way in which a chairman has ruled on what is or is not a legitimate matter for cross-examination. I am unable to find any error of law in this case. I would therefore refuse this renewed application for permission to appeal.
Order: Application refused. (Order does not form part of approved Judgment)