A former Bouygues employee who claims he was sacked on the grounds of racial discrimination has won the right to appeal his dismissal at the fourth attempt.
Reza Melki was employed by Bouygues E&S Contracting UK as a planning manager on a probationary basis from 25 November 2019 until his dismissal on 9 March 2020.
Melki took the firm to an employment tribunal on the grounds of race discrimination and harassment, which he lost.
A tribunal in Manchester heard he “failed to attend his probationary review meetings and a disciplinary hearing for being absent without permission”.
Following the judgement, he applied for the right to appeal but this was rejected, prompting him to take his case to the High Court’s Employment Appeal Tribunal (EAT). The latest panel has now ruled that he can appeal the decision of the original tribunal.
The decision, which was a landmark ruling due to a recent change in the law to relax the rules, saw him successfully appeal a previous decision by the EAT.
The court heard his previous application to appeal was rejected due to him failing to submit a document on time.
Lady Justice Elisabeth Laing, sitting with Lord Underhill, has now allowed his appeal.
“This was a case of a failure to serve only part of one of the documents then required by the rules,” Lord Underhill said.
“The failure was promptly remedied and gave rise to no prejudice. It is true that the only explanation offered by the appellant was that he had not realised that the pages containing the grounds of resistance needed to be included.”
The judge said although it was “careless” it was possible to see how a person representing themselves could make an error like this.
“It is in no view a case of deliberate or reckless disregard for the rules,” he added.
Melki was first sent the decision from the Manchester Employment Tribunal on 12 April 2022.
On 26 April 2022 he applied for reconsideration of the tribunal’s decision and that was rejected on 20 May 2022.
He then appealed to the EAT on 22 May 2022 but failed to attach one set of documents concerning Bouygues’ grounds for resisting the case.
Once informed it was missing by the tribunal, he then sent the correct documents but in February 2023 he was told that his appeal was “not properly instituted”.
“His case was that he did not realise that he had to include the grounds of resistance with his notice of appeal. He rang the EAT six days after the deadline, was told that he had to send in the grounds of resistance, and did so immediately,” Lady Justice Laing said.
Despite this, the registrar of the EAT refused to give him a time extension and his appeal to the EAT was subsequently dismissed.
During this time, Parliament allowed a change in the law for the way appeals are submitted to address a backlog in cases being caused by applicants asking for extensions due to errors being made in filing their cases.
On average, four out of the 23 appeals lodged each week were invalid and the extra work meant there was an average delay of 24 weeks before cases were dealt with.
The rules have now been changed to simplify the documents required.
As a result of this, Melki appealed against the decision and won. His case is the first appeal to be granted due to the law change.
“I would allow the appeal. The EAT should have held that Melki’s mistake was a minor error. He substantially complied with the requirements,” Lady Justice Laing said.
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Nicola Harley