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Chambers & Partners
14/04/2011

Barreto v. Wincanton Group Limited

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Employment Appeal Tribunal

Where an appellant had decided to seek permission to appeal to the Court of Appeal against opinions given under the Employment Appeal Tribunal Rules 1993 r.3(7) and r.3(8) rather than request a hearing under r.3(10), and by the time the Court had refused, his subsequent application for a r.3(10) hearing was out of time, he did not have a sufficient excuse for missing the deadline or attracting an exceptional extension of time.
 
The appellant employee (B) appealed against a registrar's decision not to allow an extension of time for his application to have a hearing under the Employment Appeal Tribunal Rules 1993 r.3(10).
 
An employment tribunal had dismissed B's race-discrimination claim. B served a notice of appeal which the President of the Employment Appeal Tribunal, giving his opinion under r.3(7), rejected on the sift as containing no reasonable grounds. B served a fresh notice of appeal under r.3(8), which the President also rejected. B sought permission to appeal to the Court of Appeal, but a deputy master held that it had no jurisdiction because, as B had chosen not to apply for a hearing under r.3(10), he had not exhausted his appeal rights in the EAT. Thereupon B applied for a r.3(10) hearing, but by then he was out of time and the registrar refused to exercise her discretion to allow him an extension. B appealed under r.21 against the registrar's decision.
 
HELD: (1) B did not have a good excuse for his late application for a r.3(10) hearing. He had decided that the Court of Appeal was a better forum for his case. That was not a sufficient excuse for missing the deadline or attracting an exceptional extension, United Arab Emirates v Abdelghafar [1995] I.C.R. 65 considered. Moreoever, his substantive appeal against the rejection of his race discrimination claim had no merit. It was essentially a challenge to findings of fact, but the tribunal had provided a balanced response to his complaint, looked at the prima facie case that he could not make against the employer and the evidence the latter had put forward by way of explanation. It had made a decision which, in the round, could not be appealed against. So, for the purposes of the application under r.21, there was no point in breathing life into the appeal (see paras 37-38 of judgment). (2) (Per curiam) The Employment Tribunals Act 1996 s.37 permitted an appellant to make an application for permission to appeal to the Court of Appeal against an opinion under r.3(7) and r.3(8). Therefore, the deputy master in the Court of Appeal had been wrong to refuse B's application for permission to appeal against the President's opinion, on the ground that he had not exhausted procedure in the EAT, Mitchell v Barratt Homes (Leeds) Ltd [2010] EWCA Civ 22 considered. Whilst there was good reason why parties should exhaust all remedies in the EAT, they had not to be precluded from their statutory right to seek permission to appeal (paras 32, 35).
 
Appeal dismissed

LTL 2/6/2011
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