The facts and background to the case can be found with the [EAT judgment here.]()

In this application, Rimer LJ grants permission to appeal as he was uncertain as to the proceedings in the ET and therefore whether the claims should have been struck out when that is such a serious consequence for the claimant.

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Case No: a2/2012/0332

Neutral Citation Number: [2012] EWCA Civ 1128

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

(MR JUSTICE LANGSTAFF)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Friday, 20th July 2012

Before:

LORD JUSTICE RIMER

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Between:

GREGORY CHARLES (Appellant)

- and -

TESCO STORES 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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The Applicant, Mr Charles, appeared in person.

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 an application for permission to appeal following the refusal of permission on the papers by Mummery LJ on 2 May 2012. The application is made by Gregory Charles, a claimant in employment tribunal proceedings against Tesco Stores Limited, his former employer. The permission application is against an order of the Employment Appeal Tribunal made on 19 January 2012 by Langstaff J, the President, sitting alone, dismissing Mr Charles's appeal against an earlier order of the Employment Tribunal.

1. The background is somewhat confused. Mr Charles, an employee of Tesco, had on 16 June 2009 lodged a grievance against a fellow employee. It appears that the grievance took a very long time to be dealt with by Tesco and that it was not until 4 June 2010 that the applicant was informed of the outcome of the grievance and even then he was only informed about it orally. He describes that stage in the process as the first stage and he then proceeded to the second stage of his grievance, which occurred on 17 August 2010, when he had a meeting with Mr Harvey of Tesco, accompanied by Mr Scully and Mr Ridgeway who were assisting him at the meeting.

1. At that meeting it appears that an offer of compensation was made to the applicant, but that it was later withdrawn at the same meeting. Following the meeting, on 29 October 2010, the applicant presented his ET1 to the Employment Tribunal.

1. A question with which the Employment Tribunal became exercised, in particular Employment Judge Tribe at a pre hearing review conducted on 20 May 2011, was whether the claim was presented outside the three-month statutory time limit and, if so, whether the tribunal ought to extend the time for its presentation on the "just and equitable" ground.

1. The tribunal's conclusion, explained in reasons sent to the parties on 27 May 2011, was that, as I follow it, the cut off date for the discrimination complained of was 4 June 2010 (and I should say, if I have not already said so, that the discrimination complained of was what was said to be the discriminatory treatment of the applicant by reason of the long delay in the processing of his grievance). The tribunal held that the time limit for presenting the claim expired before the date on which the claim form was presented, 29 October 2010, and that there were in the circumstances no grounds for extending time.

1. The challenge to that outcome was advanced by Mr Charles in person to Langstaff J, when it appears that a further ground which was raised was a complaint based on the making, and then the withdrawal, of the compensatory offer on 17 August 2010. There was an issue between the applicant and the respondent's representative as to whether that had been any part of the case made to the Employment Tribunal and Langstaff J concluded that it had not been part of the case so made. The applicant, however, assures me that it was and that he had made it plain to the Employment Tribunal that his complaint of the delay extended right down to 17 August 2010 and that his point about the withdrawal of the compensatory offer was also part of his grounds of complaint, that matter being mentioned in his ET1, although not, so it seems to me, in terms that made it clear that he was complaining that the withdrawal of the offer of compensation was discriminatory.

1. I have received what assistance he can give me from the applicant this morning, although I am left in a considerable state of doubt as to precisely what happened before the Employment Tribunal and indeed as to precisely what case the applicant was asserting to that tribunal he was making by his ET1.

1. The judgment of Langstaff J opens with the perhaps surprising statement that "The sole issue in this appeal is one of fact". That is surprising because appeals to the Employment Appeal Tribunal from an order of an employment tribunal lie only on issues of law, but I have no doubt that Langstaff J was correct in so characterising the nature of the issue that he had to consider, which was a factual question as to the nature of the case that the applicant was in fact advancing before the Employment Tribunal.

1. I am, as I have said, left in a degree of uncertainty about that, and am also aware of and sensitive to the consideration that the outcome of the Employment Tribunal's decision has been that the applicant's claim to that tribunal has effectively been struck out as having been issued out of time. That is a serious consequence for any claimant. It is one thing for a claim to be dismissed after it has been heard on the merits, but it is a serious thing for a claim to be struck out before there has been any such hearing.

1. If it is plain that the claim is out of time, and also plain that time should not be extended, then of course it follows that it ought to be struck out. In this case, however, I am left with uncertainty as to whether this claim did merit that treatment. Accordingly, albeit with a degree of hesitation, I have come to the conclusion that, even if this is not a case as to which it can be said that the applicant has a real prospect of success on an appeal, I am at least satisfied that the circumstance that he may, on full examination, be shown to have had his case struck out when it should not have been is a compelling reason for permitting the applicant to appeal.

1. I accordingly give permission to appeal.

Order: Application granted