England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London, WC2 Monday, 21 October 2002

1. LORD JUSTICE JUDGE: This is a renewed application for permission to appeal against the order of the Employment Appeal Tribunal dated 22^_nd_ May of this year, dismissing the applicant's application for permission to appeal against the decision of the Employment Tribunal, dismissing an originating application in which Mr Samuel, the applicant, complained of racial discrimination against his alleged employer, the Home Office.
2. The originating application was dated 21^_st_ October 1999. Further and better particulars were served on 24^_th_ May 2000. The majority of the allegations made in the particulars were out of time and, at any rate, on the face of the papers, could not be said to constitute a continuous act. It was further suggested by the Home Office that the claim was wrongly brought against it and that the proper respondent should be the Home Office Immigration and Nationality Department.
3. The issue which gave rise to the application, taken in very brief terms, was the way in which the applicant's annual report came to be made by his employers, and was marred, so it was alleged, by signs of racial discrimination.
4. It is unnecessary to attempt to set out the details of the claim. It was dismissed on 29^_th_ January 2001, on the date when it was fixed for hearing. The applicant did not attend at the appointed time. An application was made on behalf of the Home Office for the claim to be dismissed. A short reasoned judgment was provided on 9^_th_ February. This sets out that the Tribunal was informed that the applicant had arrived shortly after the decision had been announced, and further records that before the decision had been reached messages had been received from the applicant explaining that he was on his way.
5. On 23^_rd_ March the applicant gave notice of appeal against the decision. When he gave that notice a review was ordered. To my mind, this review is critical to the outcome of the present application. On 30^_th_ November, following with a reasoned decision delivered on 5^_th_ December, the Employment Tribunal, after hearing from the applicant himself, concluded that there was no good ground for a review. The reasoned judgment explains the relevant facts both leading up to and as they emerged on the day of the hearing itself. I do not propose to read the whole of the judgment, but paragraph 4 sets out in chronological order how things developed. Then the judgment records what the applicant had to say about the issue, together of course with the respondent's contentions. At paragraph 8 the review says:

"Having investigated the circumstances of the Applicant's non-attendance with care, we reached the clear conclusion that the (deemed) application for review should be declined. The history of this litigation, which we have summarised above, speaks for itself. In the first place, we find no substance in the assertion that the Respondents were in any way to blame for the fact that the Applicant was not ready for the hearing. Secondly, and in any event, no satisfactory explanation or excuse for his failure to attend the hearing at the due time has been put forward. We do not think that rule 13(1)(c) is intended to avail a party who, consciously and without excuse, has simply failed to attend the hearing of his case at the due time."

6. Following the review, the case came on before the Employment Appeal Tribunal. The appeal was dismissed on 22^_nd_ May and the Employment Appeal Tribunal endorsed the decision reached on the review. Permission to appeal to this court was refused by the Employment Appeal Tribunal. Again, I do not propose to set out the judgment in detail, but the end result was that the Employment Appeal Tribunal concluded:

"We have considered all other submissions which [counsel] has made to us today but, in our judgment, they do not amount to anything which suggests that this appeal could succeed if allowed to go further and, therefore, we will dismiss it at this stage.

We will say at this stage, we have had with our papers the application for review which was made by the Appellant subsequent to the Notice of Appeal, and have read that and the decision of rejection of that application promulgated by the Employment Tribunal on 5^_ December 2001. In reaching our decision we have not taken account of the reasons given by the Employment Tribunal in the review decision but we would say that, having reached our conclusion, in our judgment what is said by the Employment Tribunal show proper reasons to support the original decision."

7. The application for permission to appeal to this court was refused by the single Lord Justice. He explained:

"There is no real prospect of success on any of the grounds of appeal in the Appellant's notice. No error of law is shown in the exercise of discretion by the ET to dismiss the Appellant's Originating Application more than one hour after the time fixed for the hearing when the Appellant was not present or represented and had not explained his delay. Nor, on arrival at the Tribunal, did he make any application. The further facts recorded in the Review decision show that the Appellant has only himself to blame for his wholly unreasonable behaviour which resulted in the dismissal of his claims. No other compelling reason for the hearing of the appeal has been shown."

8. In his sustained submissions before us today, renewing the application for permission to appeal, Mr Sethi has, and I hope I do no discourtesy to his argument, referred us to rule 9.3 of the 1993 Rules then in force and argued, in essence, that the proper exercise of the discretion available to the Employment Tribunal would have been to order not dismissal of the application, which was what the respondents had sought, but an adjournment with an appropriate order for costs. There was no sufficient urgency and, therefore, no necessity to take the draconian step of ordering dismissal. He further pointed out that in his submission the case was at least prima facie arguable. There is no sufficient indication in the judgment of the Employment Tribunal that all these relevant facts were taken into account.
9. The difficulty with the submission and, in the end, in my judgment, it is a difficulty which has not been overcome, is that we are concerned with the exercise of the discretion of the Employment Tribunal, than with the decision on the review, than with the further exercise of discretion of the Employment Appeal Tribunal. Whether or not it may be argued, as it has been, that the decision, at first instance, on the first hearing, may have been rather harsher on the applicant than some other tribunals might have thought appropriate, what is required is a sufficient arguable case that the repeated exercise of discretion was flawed to the extent that this court could interfere.
10. In my judgment, the argument, although well sustained, comes nowhere near succeeding. There is, in my judgment, no real prospect of success in the proposed appeal against the Tribunal's decision. I can see no point of principle or practice in relation to which guidance is required from this court which, therefore, would merit its attention.
11. Accordingly, in my judgment the application should be refused.
12. LORD JUSTICE MAY: I agree.