Case No: A2/2007/0774
Neutral Citation Number: [2007] EWCA Civ 979
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL 
(MR JUSTICE ELIAS)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 21 August 2007

Before:

LORD JUSTICE SEDLEY

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Between:

MIRE
	
Appellant	
	- and -		
	
ODEON CINEMA	
Respondent

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(DAR Transcript of 
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THE APPELLANT APPEARED IN PERSON (via an interpreter, her sister Ms D Mire).

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
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Judgment

Lord Justice Sedley:
1.	This is a renewed application for permission to appeal against a decision of the Employment Appeal Tribunal.  Maurice Kay LJ has considered the application on the papers and has refused it, but today Ms Mire, with her sister acting as her translator, has renewed the application before me.
2.	Ms Mire left her job as a customer services assistant with Odeon Cinemas following more than one episode of friction with her colleagues and line managers, culminating in a formal grievance hearing.  Having left and having formed the clear view that she had been forced to leave by the employer’s conduct, she claimed constructive dismissal, but after a full hearing an Employment Tribunal concluded that she had not been unfairly dismissed.
3.	It is worth quoting just the final paragraphs of its decision.  Paragraph 24, Page 66 of the bundle:
“24. The Tribunal finds that the failure of Mr Mkparu to hold a hearing with the Claimant in order to consider her grievance and then the failure by Mr Fordham to treat the letter of 27 July as raising an appeal were clearly breaches of its own grievance procedure and contributed significantly to understandable confusion on the part of the Claimant. However they do not amount to fundamental breaches of the contract of employment.
25. General pattern of behaviour:  
26. The Claimant submitted that following the incident of 2 July 2004 other members of the staff became biased towards her with encouragement from Mr Mkparu.  There was insufficient evidence before the Tribunal to make such a finding.  Indeed the Tribunal notes that the relationship between the Claimant and Mr Mkparu, in the period before July 2004 was a good one in that he had supported her extra curricular studies on cinema management on a number of Fridays for a not insignificant amount of time.  Also in the Claimant’s original letter of complaint she said that she believed that Barbara Harold would not have behaved as she did if Mr Mkparu was present, suggesting that at that stage she had faith in him as a manager.  
Conclusion: 
27. The Tribunal’s conclusion is that none of the particular issues relied upon by the Claimant or any general pattern of behaviour amounted to a fundamental breach of the contract of employment.  The Tribunal has specifically considered whether cumulatively they could amount to a fundamental breach and conclude that they do not.  The Tribunal has also considered whether the handling of the June 2005 grievance amounted to a “last straw” amounting to a constructive dismissal, but concludes that it did not.
 28. Accordingly the Claimant was not unfairly dismissed and her claim fails.”

4.	The applicant was abroad when the decision reached her solicitors, who did not promptly forward it to her, but it reached her on 4 October 2006, leaving her 21 days before the 42-day deadline expired.  She did not file her appeal, however, until 26 October, one day late.  
5.	The registrar of the Employment Appeal Tribunal refused to enlarge her time and on appeal Elias J also refused.  It is against this refusal of Elias J that the applicant seeks permission to appeal.  Elias J’s judgment is full, it is careful and it is by no means unsympathetic to the applicant, who I should say had the advantage of being represented at that stage by the Free Representation Unit.  
6.	The judge reminded himself of the applicable principles, and it is not said that he got any of those wrong.  He concluded that Miss Mire had an acceptable medical reason for at least the first week of the delay, from 4 October when the judgment reached her home to 11 October when she returned from Italy where she had been undergoing medical investigations.  He was also willing to accept that, despite depression, she had used the remaining time actively to seek legal advice and help and in consequence that the one day’s delay should not be fatal to her.
7.	He then turned, as he had to do, to the question posed by the case of Aziz: would the proposed appeal, even so, have any real chance of success?.  He concluded that it would not.  If that was right then there was no good ground to exercise the undoubted discretionary power which he would otherwise have exercised to enlarge Ms Mire’s time by the single necessary day.  What Elias J concluded was this:
“I have some sympathy for Ms Mire.  She was a litigant in person, English was not her first language and for reasons which are largely beyond her control, I should say at least were wholly explicable, she was not really in a position to attend to this matter until 11 October.  She did however obtain the information from the Croydon Tribunal and could have identified the relevant date by which to lodge the appeal.  I confess that had there been any real force in the appeal I would have been inclined in the exceptional circumstances in this case to allow this case to go forward.  Mr Medhurst, acting for the Free Representation Unit, has produced, if I may say so, clear and cogent skeletons which puts the case as fully and fairly as can be put for Ms Mire, but I am satisfied that this is one of those exceptional cases where the merits ought to be decisive.  The grounds of appeal, as Mr Medhust indicated, are not entirely clear but in essence they allege that either the Tribunal misdirected itself or reached a perverse conclusion.  I see no possibility of the former succeeding given the claim direction from the Tribunal in accordance with Western Excavating v Sharp.  But the perversity ground that is an extremely high hurdle to cross as the Court of Appeal pointed out in Yeboah v Crofton.
“I am satisfied that there is really no proper basis on which it could be said that the Tribunal’s conclusion was perverse.  I make the trite and obvious point that it is not a matter whether this Tribunal would or would not have reached the same result but whether the Tribunal reached a conclusion which it was plainly entitled to reach.  I see no prospect of that being established in this case.  In short, weighing all the factors together, I have concluded that it would be doing no service to this potential Appellant to let this case go forward in circumstances where I am satisfied that applying the test of Staughton LJ in Aziz it is plain that it could not succeed.  I also note that one of the grounds of appeal is that it was a contractual breach to fail to comply with the statutory grievance procedure.  That is incorrect as a matter of law.  That may not matter because the employer’s own grievance procedure was probably contractual and appears to have been treated as such by the Tribunal, but the Tribunal, whilst accepting that there were some breaches by the employer, did not consider that these amounted to repudiatric [sic] breaches and that as I have said is a conclusion which could only be challenged on perversity grounds which would not, in my judgment, be potentially applicable here.”

8.	I find it impossible to add anything to this or to subtract anything from it. Like Elias J I too have considered the Employment Tribunal’s decision and I can see no basis on which, unwelcome although it clearly and understandably is to Ms Mire, it can be said to have either flown in the face of the evidence or departed from the law.  
9.	It is not always easy for lay people to appreciate is that there is only one level at which facts are determined and that is the Employment Tribunal.  They will have to be determined adversely to one side and in favour of another, and the side against whom the facts are determined will always feel that it is not a fair or a proper decision.  But that does not mean that there is some error of law in it.  The 15 grounds of appeal that Ms Mire has advanced include a submission that Elias J had no sufficient basis on which he could properly evaluate her case as hopeless.  That was not the case on constructive dismissal; that was a realistic case although in the end it was rejected.  But her case before the Employment Appeal Tribunal had to be a different case, namely that there was an error of law in the way the Employment Tribunal approached the evidence.  That is a quite different scenario from the original scenario, which was a serious issue before the Employment Tribunal.  
10.	It is also submitted that the merits had no place in the application which Elias J was considering.  For the reason that I have given, that is not so.  He has to ask himself: even if I was prepared to enlarge time, would it be any use?  In other words, could this appeal possibly succeed?  The judge had before him the Employment Tribunal’s decision and the grounds on which it was sought to challenge that decision.  The law was clearly that unless those grounds were viable an enlargement of time should not be granted.  
11.	The judge was therefore not only entitled but required to consider the broad merits of the proposed appeal.  He concluded that even if he were to extend Ms Mire’s time by the necessary day, her appeal was bound to fail and that, I am afraid, is my view as well.  An appeal, as I have tried to explain, is not a re-hearing or a re-evaluation of the case.  You only go round that course once and that is for better or for worse, before the Employment Tribunal.  In Ms Mire’s case it was for worse.  The Employment Tribunal recognised that there had been failings of procedure and that Ms Mire was legitimately confused about what was going on, but that was not the ultimate issue: the ultimate issue was whether there had been a dismissal and whether it was procedurally unfair.
12.	Ms Mire has explained to me today why it is her case that there was a pattern of repudiatory behaviour.  I understand that case, but I am not the tribunal which decides it.  She has also made the point that following her departure, Odeon Cinemas, the employer, were very unhelpful and obstructive with her P45 for example, so that she had great difficulty in obtaining benefit or other employment and had her final four months of pay withheld.  All of those things are, as I appreciate, very real grievances, but they are not what an unfair dismissal claim is about.  They are things which happen after the dismissal and there are other remedies for them.  The dismissal which Ms Mire alleged was the point at which she was forced to leave, and the question was whether it was the employer’s wrongdoing that forced her to leave: on that, I am afraid, she did not succeed in her claim. 
13.	Although I have every sympathy with Ms Mire in the situation in which she has found herself and in her failure to secure an unfair dismissal finding, I hope she will understand with her sister’s help that there is nothing that could have been done by the Employment Appeal Tribunal to correct that, even if they had enlarged her time, or to alter it.  There is nothing that this court equally can do to reverse the Employment Appeal Tribunal’s decision, which as I say, like my decision, was not unsympathetic to Ms Mire.  But I am afraid sympathy is not everything in the law.
Order: Application refused.