The employment tribunal had found the claimant teacher’s claims, including of sexual and racial discrimination, against the third defendant head teacher established. The tribunal’s order was subsequently revoked on review and there was no outstanding judgment against the third defendant. The third defendant appealed, seeking a decision that the tribunal’s findings of fact had been wrong.
Lawson v Governing Body of Aylesford School and another: Court of Appeal, Civil Division: 25 March 2014
Revocation of order – Claimant teacher issuing proceedings against defendants for unfair dismissal, sexual and racial discrimination, and victimisation – Employment tribunal upholding majority of claims – Defendants’ appeal being dismissed – Third defendant being granted permission to appeal – Tribunal’s order being revoked on review
The claimant was a teacher employed by the first defendant school in 2001. On her employment, she had denied having any criminal convictions, which had been untrue. In June 2004, the claimant had been dismissed from her employment, following allegations of misbehaviour on a school trip.
The claimant issued proceedings in the employment tribunal (the tribunal), alleging unfair dismissal, racial and sexual discrimination, and victimisation. The tribunal upheld the majority of the claimant’s claims. In the course of the tribunal proceedings, the defendants formed the belief that the claimant had criminal convictions and they appealed. During the proceedings before the Employment Appeal Tribunal (the EAT), the defendants obtained more solid information about the claimant’s criminal convictions and the claimant admitted that her evidence before the tribunal to the contrary had been untrue.
The EAT dismissed the appeal for the most part. The third defendant head teacher was granted permission to appeal. The third defendant’s application to the tribunal for review was allowed, as a result of the claimant’s failure to comply with an unless order. Accordingly, all of the claimant’s complaints against the third defendant were dismissed, with the effect of revoking the tribunal’s earlier order as to the third defendant and there was no outstanding judgment against the third defendant.
However, he maintained his appeal, as he was not satisfied in having the judgment against him set aside on technical grounds and wanted a decision that the tribunal’s findings of fact had been wrong. The third defendant contended that: (i) even though the tribunal’s order had been revoked, the EAT’s order remained a jurisdictional hook for the appeal; (ii) the tribunal’s decision remained appealable, as its findings remained against the first defendant; and (iii) permission had been granted having considered the court’s jurisdictional.
It fell to be determined whether the court had jurisdiction to entertain the appeal where the underlying order had been revoked. The appeal would be dismissed.
The instant appeal was caught by the rule that appeals were against orders, not reasons for judgment. The order challenged in the appeal had been revoked and the third defendant challenged the tribunal’s findings of fact. The substance of the appeal was against the tribunal’s decision. If the appeal was to proceed to be allowed, it would be the tribunal’s decision that would be quashed. The court could not set aside a judgment that had already been revoked. Although the tribunal’s judgment was appealable by the school, there was no surviving judgment against the third defendant.
The fact that the third defendant had already been granted permission to appeal when the tribunal’s order had not been revoked did not mean that the position could or should not be revisited when that had changed. Accordingly, the court did not have jurisdiction to entertain the appeal. Alternatively, it was not right to exercise the court’s discretion to do so. The third defendant had had the opportunity to have the decision revoked and dismissed on a procedural basis, and he could not ask the court to review the merits.
Cie Noga D’Importation Et D’Exportation SA v Australia & New Zealand Banking Group Ltd (No 3)  All ER (D) 484 (Jul) applied. Decision of Employment Appeal Tribunal  All ER (D) 28 (Oct) affirmed.
The claimant did not appear and was not represented; Stephen Whale (instructed by Kent County Council) for the third defendant.