Hepburn v Notts Gymnastics Academy

LORD JUSTICE LONGMORE: This is an application for permission to appeal made by Mr Leslie Hepburn from the order of His Honour Judge Hand QC, sitting in the Employment Appeal Tribunal, at which he dismissed certain grounds of proposed appeal from the Employment Appeal Tribunal but let two grounds go forward to a full hearing. Mr Hepburn wishes to appeal the order of His Honour Judge Hand on the basis that the grounds which were not permitted to go to a full hearing should be permitted to go to a full hearing at the Employment Appeal Tribunal.

Mr Hepburn was employed by the Notts Gymnastics Academy as a gymnastics coach. He brought a claim for direct sex discrimination because he claimed that he was treated less favourably than his female colleagues because he was a man. He also brought a claim for harassment and victimisation. Those complaints were dismissed by the Employment Tribunal. He applied for a review of that decision and the Employment Tribunal declined to review their first decision. Also on that occasion the respondent applied for costs and the Employment Tribunal found that the respondent was entitled to costs in a sum which they awarded of £3,500.

Mr Hepburn appealed both those judgments to the Employment Appeal Tribunal and, as I say, only two matters were allowed to go forward to a full hearing. Those matters were the costs order and also the question of whether, on the review, the Employment Tribunal should have accepted new evidence in relation to the complaint that Mr Hepburn made about the time taken in relation to his Criminal Records Bureau clearance, and in particular whether that problem had not started in 2010 rather than, as found by the Employment Tribunal, in 2011. So those two matters will go forward in any event.

There were 24 paragraphs of grounds of appeal which His Honour Judge Hand considered. The first two of those were introductory. Most of the grounds, grounds 3 to 17, related to an allegation of bias on the part of the Employment Tribunal, and Mr Hepburn complains that that was not adequately dealt with by Judge Hand, who did not properly apply the informed observer test. It is true that the judge did not set out the legal test of the informed observer as set out in Porter v Magill, but Judge Hand did go into the allegations in considerable detail and he had before him responses from the tribunal to Mr Hepburn's allegations of bias, which Mr Hepburn says should not have been given the primary consideration by Judge Hand; and he also says that Judge Hand ought to have accepted what Mr Hepburn said.

I have of course considered that very carefully, but it does not seem to me that those matters raise a suitable question of law for this court. Although Mr Hepburn rightly says that the legal tests were not set out in any detail, Judge Hand knew perfectly well what the tests were, he considered the matter primarily factually, as he was bound to do, and he came to the conclusion which he did, and it is very seldom that an allegation of bias can be pursued successfully. Employment tribunals up and down the land have to deal with these cases and one perfectly understands that litigants who lose are strongly tempted to accuse the tribunal of bias, especially if they feel that their points have not been properly considered, which Mr Hepburn does think. That is a separate question and does not indicate any bias. The examples given by Mr Hepburn of interruption and cutting off and so on are no more than examples of what Employment Tribunals have to do all day, all the time, in order to keep proceedings before them to a manageable level.

Grounds 19 and 20 of his grounds relate to credibility and do not raise any question of law. He does have a grievance about the way in which both the Employment Tribunal and Lewison LJ, on the papers, dealt with harassment and victimisation. Lewison LJ said on the papers that those claims did not form part of the claims made in the Employment Tribunal, but I fear Lewison LJ was wrong on the papers on that, because Mr Hepburn has shown me how he was required to particularise his claims of victimisation and harassment and in fact did so and so they were before the Employment Tribunal, which did consider them, and they were also matters which, Mr Hepburn, raised before His Honour Judge Hand and His Honour Judge Hand did in paragraph 29 of his judgment discuss in some detail the evidence of Mr Fittro, which was the main source of the victimisation and harassment assertions. Mr Hepburn complains that the Employment Tribunal did not properly consider what would have happened if the respondent had not, as Mr Hepburn puts it, ignored his claims about victimisation, but the Employment Tribunal did consider that point and did conclude that it was peripheral in the scheme of things, and that if the respondents had considered the matter properly and promptly no different conclusion would have been reached. That is a decision which is entirely open to the Employment Tribunal and does not raise any question of law.

Other points raised by Mr Hepburn are, understandably, complaints that his evidence was not properly considered by the tribunal, and then in turn that Judge Hand treated the matter much too generally and did not deal with specific evidence and specific points that Mr Hepburn wanted to raise.

The question for me is whether that does make an appropriate ground for an appeal to this court, and I am sorry to say that I just do not think it is, because there is no proper point of law formulated here which could go forward to this court. Therefore, and I know Mr Hepburn will be very disappointed, but I do have to reject his application.