Permission to appeal against an Employment Appeal Tribunal's majority decision in an equal pay claim was refused in circumstances where, although the appellant's amended grounds of appeal largely followed the areas in which the dissenting EAT member had delivered his differing opinion, the majority's view prevailed that there was no real prospect of success and no other compelling reason for granting permission.
The applicant Home Office applied for permission to appeal against a judgment by the Employment Appeal Tribunal ((2005) IRLR 757) made in relation to equal pay claims by the respondent female employees (X). X applied for an order for partial costs against the Home Office. The EAT's judgment had concerned a previous appeal by the Home Office against two decisions by an employment tribunal allowing X's equal pay claims against the Prison Service. In one of the decisions, the employment tribunal had applied a formula to quantify unsocial hours in comparing X's actual salary with the notional salary of comparators. On appeal, the EAT, by majority, had decided that the formula and valuation produced by the first-instance tribunal had been open to it on the evidence and had not raised any issue of law. As a result, the Home Office was partially unsuccessful in its appeal. In the instant application for permission to appeal, the amended grounds of appeal put forward by the Home Office largely followed the areas in which the dissenting EAT member had delivered his differing opinion. X's application for costs was based on that part of the EAT's judgment in which it had unanimously found that, save for the areas in which one of its members had taken a different view, the appeal raised no issue of law.
HELD: (1) The proper approach in deciding whether to grant permission to appeal was that the EAT had to be satisfied that there was a real prospect of success or some other compelling reason for granting permission. In deciding that question, it had to take a robust view, Cooke v Secretary of State for Social Security (2001) EWCA Civ 734, (2002) 3 All ER 279 applied. Although the fact that one of the EAT members had dissented in the substantive judgment was taken into account in deciding whether to grant permission to appeal, that fact was not determinative of the application. Having considered the way in which the application was put, the majority were not persuaded that the proposed appeal raised a real prospect of success, or that there was some other compelling reason for granting permission. The majority view prevailed, and permission was refused. (2) Costs in the EAT, as in the employment tribunal, were ordered exceptionally, Lodwick v Southwark LBC (2004) EWCA Civ 306, (2004) ICR 884 considered. Pursuant to the Employment Appeal Tribunal Rules 1993 r.34B(1)(c), it was open to the EAT to make an order for partial costs in the circumstances. However, whilst the EAT had unanimously concluded that parts of the formula judgment raised no issue of law, as a matter of case management, it had been felt necessary to hear both parties on all issues raised in the formula judgment appeal, bearing in mind the complexities of the case and the degree of interlocking between the appeal grounds raised. The grounds that failed in the unanimous judgment had not materially extended the hearing of the appeal. Although there had been a degree of additional preparation in relation to those grounds, overall, as a matter of discretion, it was not a proper case in which to order costs.