The background to the case can be found [here](). The single ground of appeal was that this was not a case in which it was open to the EAT to make a finding on the facts that the employer's decision to relocate the applicant was not in any respect by reason, or on the grounds, of the presentation by the applicant of the relevant grievances.

The application was allowed because the prospects of success crossed the threshold justifying the giving of permission on the victimization issue. Permission to appeal the unfair dismissal decision was also granted on the basis that, if the victimization issue was one on which the applicant was successful on the appeal, he may well have something to argue about on the unfair dismissal case.

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Case No: A2/2013/0730

Neutral Citation Number: [2013] EWCA Civ 1323

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Mr Justice Mitting, Mr D.J. Jenkins OBE, Mr G. Lewis

UKEAT/0368/12/DM & UKEAT/0427/12/DM

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday, 10th October 2013

Before:

LORD JUSTICE RIMER

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MR BURRELL (Appellant)

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MICHELDEVER TYRE SERVICES LTD  (Respondent)

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(DAR Transcript of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

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Mr Marcus Pilgerstorfer (instructed by Leonard & Co) appeared on behalf of the Applicant, Gary Burrell.

The Respondent did not appear and was not represented.

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Judgment

(As approved by the Court)

Crown Copyright©

LORD JUSTICE RIMER:

1. This is a renewed application for permission to appeal, Elias LJ having refused permission on the papers on 25 June 2013. The applicant is Mr Burrell, who is the claimant in employment tribunal proceedings against his former employer, Micheldever Tyre Services Limited. His claims included claims for victimization and unfair dismissal. Before the Employment Tribunal (Employment Judge Barrowclough and members) he succeeded on the former claim but failed on the latter. The Employment Appeal Tribunal (Mitting J and members) allowed the appeal by the respondent employer against the victimization decision and held that there had been no victimization, and dismissed the applicant's appeal against the ET's dismissal of his unfair dismissal claim.

1. The applicant, represented before me this morning by Mr Pilgerstorfer, does not suggest that the EAT was incorrect to find that, in its assessment of whether or not there had been victimization, the ET had adopted an incorrect approach. His complaint, as lucidly explained in the supplemental written statement Mr Pilgerstorfer has prepared for today's hearing, is that, having identified the ET's error, the EAT proceeded to substitute its own decision on the victimization issue, which effectively amounted to the EAT making a finding on the facts that the employer's decision to relocate the applicant was not in any respect by reason, or on the grounds, of the presentation by the applicant of the relevant grievance. What is said is that the EAT could properly only do that if its assessment was that, had the ET correctly directed itself on the victimization issue, it could only have reached one conclusion, namely that the decision to relocate the applicant was in no manner motivated by his raising of the grievance.

1. It is said that it is arguable that this was not a case in which it was open to the EAT so to substitute the finding that it did. Once one removes from paragraph 41 of the ET's reasons the part of it which reflects the application by the ET of what was held to be the wrong test, Mr Pilgerstorfer says that a void is left in which the ET has made no finding as to what, consciously or subconsciously, was in the mind of the respondent when it decided to require the applicant to relocate.

1. Given the cogent reasoning in the judgment of the EAT in favour of allowing the appeal, I have to admit to real reservations as to whether there is in fact any substance in the applicant's proposed appeal in relation to this point. But I have nevertheless concluded that its prospects of success at least cross the threshold justifying the giving of permission on the victimization issue, and therefore I do propose to give permission to appeal on that issue.

1. The applicant also asks for permission to appeal on the unfair dismissal issue. He accepts that the outcome of that part of the appeal is, or will be, necessarily parasitic on the outcome of the victimization issue. If the victimization issue is one on which the applicant is successful on the appeal, he may well have something to argue about on the unfair dismissal case, whereas if the applicant is not successful on the victimization issue, I understand it to be accepted that there is no separate mileage in the unfair dismissal case. I shall therefore also give permission on the unfair dismissal ground.

1. I therefore give permission as asked. The applicant, I am sure, will be made aware of the risks as to costs he will be incurring by pursuing an appeal to the Court of Appeal.

Order: Application granted