Kerry Underwood


with 4 comments

The Ultimate Judicial Irony: How can you be a Court of Appeal Judge and say this?

The case of

Tabidi v British Broadcasting Corporation [2020] EWCA Civ 733

is not particularly interesting from a legal point of view.

However, it contains the most ironic statement recently made by a member of the Senior Judiciary:

“I agree that if the customary “second appeals” criteria had applied to this jurisdiction, as they do to virtually all others, permission to appeal would have been refused. In my judgment, it is high time that that the legislation was amended to enable that test to be adopted for appeals from cases which have already had the attention, not only of the expert ET, but also of the expert EAT. I can see no rational reason for the continued exception from the “second appeals” test for cases of this character.” (Paragraph 45) –

(McCombe LJ – Sedbergh School: annual fees: £34,854.)

You allowed the appeal in part: the “expert” ET and “expert” EAT, both expertly got it wrong, so, on your logic, a wrong would have gone un-righted, on a key issue, that is that Employment Tribunals are generally cost free zones.

Also, you cannot just trot off to the Court of Appeal. You need permission, which your own colleague, Bean LJ, sensibly and correctly gave.

You also need to go through a filter system even to have a full hearing in the EAT and Judge Eady allowed the matter to proceed.

Consequently, there is already a filtering system in place that simply does not exist in the ordinary court system and thus it is harder already to bring an employment appeal than it is to bring any other type of appeal.

Parliament chose to set up the highly unusual extra appeal layer of the Employment Appeal Tribunal and Parliament chose entirely to ban the High Court from having any say in any shape or form over the employment tribunal system, to the extent that findings of the employment tribunal, for example in relation to constructive dismissal and fundamental breach in any given case, are binding on the High Court.

Parliament, not you, makes the law; these remarks show exactly why Parliament made this law, and that is because Parliament did not trust the courts to deal with employment matters fairly.

The courts do not exist for your convenience; the courts exist to do justice in accordance with the will of Parliament.

Lord Justice Underhill, – Winchester College – fees £41,708 a year -:

“I would add, finally, that this is precisely the kind of case in which permission to appeal would have been refused if a second appeals test of the kind which applies in most other fields were in place.”

So, again, Lord Justice Underhill prefers less work and an injustice as compared with the peasants being allowed to appeal.

I wonder if trade union history was on the syllabus at Sedbergh School or Winchester College.

This was the Judge who said that the High Court in UNISON – the Employment Tribunal Fees case –  was not obviously wrong in saying that a claimant left with £200 a month after essential living expenses had the “opportunity to accumulate the necessary sums over a period of months before the issue of the claim…”

Unison, R (On the Application Of) v The Lord Chancellor [2015] EWCA Civ 935

Leaving aside the fact that the time limit in Employment Tribunals is three months less a day – not much time to save is you are unemployed as a result of being unfairly dismissed – the amount left in a month for a working person covers the fees of Winchester College for approximately 1.7502637 days.

This is posted on the day that a recently retired Supreme Court Judge suggested we feel free to treat the law on Covid 19 restrictions as “ a secondary consideration” and that the Lord Chancellor said he would quit if he has broken the law in “an unacceptable manner”, suggesting that we can all break the law if it is in an acceptable manner.

Just off to rob a bank – in an acceptable manner of course.

Enough is enough.

NB –  “The second appeals test means that the court of appeal will not give permission unless it considers that the appeal would have a real prospect of success, and that it raises an important point of principle, or a practice or there is some other compelling reason for the Court of Appeal to hear it.”

Written by kerryunderwood

September 14, 2020 at 2:21 pm

Posted in Uncategorized

4 Responses

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  1. Aviva: Internal

    Great, thanks Neil.

    I know Chris well so will call him later and see if he can do some digging for us.

    Jim Mullen Motor Case Manager | Technical Claims M +44 (0) 7800693177 | [Aviva logo] Cruan Business Centre, 123 Westerhill Road, Bishopbriggs, Glasgow, G64 2QR

    Due to the impact of the Coronavirus, please communicate by email which will enable me to deal with your correspondence promptly. If you were intending to send documents by post, please contact me first to discuss how best to deal with matters. Thank you for your cooperation.

    This message has been classified Internal on 14 September 2020 at 14:24:03.

    Jim Mullen

    September 14, 2020 at 2:24 pm

  2. Completely agree – too often in the CoA the Appeal judges feel that the employment tribunal is beneath them, and this does often lead to unfair appeal hearings. It is crucial that the option remains to appeal above the EAT where necessary.

    Even EAT appeals are not proper appeals – they are usually on points of law rather than full hearings, and any Claimant should be allowed full re-hearings as part of their right to appeal. Unfortunately there has been a watering down of the appeal process in recent years – the CCs for example, used to provide re-hearings on the fact (in other words, a real appeal), and the EAT until recently had lay persons as standard in unfair dismissal cases. This right has now been removed, and judges sitting alone are more likely to favour Defendants in employment claims.


    September 21, 2020 at 11:57 am

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