S. Somjee v. North West Regional Health Authority

Appeals from employment tribunals are not a means of reopening findings of fact and credibility. A challenge must disclose an error of law, perversity or a material breach of natural justice. A discretionary transfer decision is not open to successful challenge without legal misdirection or a plainly wrong result. Under the Employment Appeal Tribunal Rules 1993, adverse costs may be ordered for unreasonable conduct, including persistent or unscrupulous pursuit of unsubstantiated allegations. The seriousness of race discrimination does not immunise misuse of the complaint process. A reference to the European Court of Justice is unnecessary where no community-law issue arises and the matter is acte claire.

The applicant brought proceedings alleging race discrimination in recruitment, training and workplace treatment. After her dismissal, she brought further proceedings alleging victimisation and direct discrimination, and separate proceedings alleging unfair dismissal. The Industrial Tribunals rejected her claims, including allegations of conspiracy, perjury, forgery and bias.

The Employment Appeal Tribunal dismissed four appeals on 25 October 1996. It later ordered her to pay £2,500 towards the respondent’s costs of two appeals under Rule 34 of the Employment Appeal Tribunal Rules 1993. The applicant sought leave to appeal against those decisions, challenging findings of fact and credibility, the fairness and impartiality of the hearings, the refusal to transfer proceedings, the costs order, and alleged breaches of European law and the Convention. The central issue was whether any proposed appeal disclosed an arguable error of law.

Waite LJ delivered the judgment, and Swinton Thomas LJ agreed. The Court of Appeal unanimously dismissed all applications for leave to appeal.

1. Factual and credibility challenges. The proposed appeals largely repeated allegations of fact, including claims of conspiracy, perjury and forgery. The Industrial Tribunals had made findings after hearing the evidence, and the Employment Appeal Tribunal had correctly concluded that the findings could not be characterised as perverse. An appeal could not be used to obtain a general rehearing of those factual disputes.
2. Bias and natural justice. The allegations concerning the Industrial Tribunal’s conduct had been fully and fairly investigated by the Employment Appeal Tribunal. Its conclusion that the allegations were unfounded and that there had been no breach of natural justice was justified. The proposed challenges therefore disclosed no arguable error of law.
3. Transfer discretion. The refusal to transfer the unfair dismissal proceedings was discretionary. The challenge depended on criticisms of the Industrial Tribunal which had already been found baseless. The proposed appeal against the exercise of that discretion was consequently hopeless.
4. Costs. Rule 34 of the Employment Appeal Tribunal Rules 1993 permitted a costs order for unreasonable conduct in bringing or conducting proceedings. The order for £2,500 was amply justified because the relevant appeals were founded on allegations unsupported by evidence and bound to fail. A serious right to complain of race discrimination could be penalised where it was used in an over-persistent or unscrupulous manner.
5. European law. The court found no breach of the European Convention or relevant community-law principles. The matter was acte claire, no issue of community law arose, and there was no basis for a reference to the European Court of Justice.

• Court of Appeal (Civil Division): on 7 July 1997, dismissed all applications for leave to appeal in [1997] EWCA Civ 2042.
• Employment Appeal Tribunal: dismissed four appeals on 25 October 1996, concerning the first complaint and review, the second complaint, and refusal to transfer the unfair dismissal claim. On 18 April 1997 it ordered payment of £2,500 towards the respondent’s costs of two appeals under Rule 34 of the Employment Appeal Tribunal Rules 1993.
• Industrial Tribunals and Regional Chairman: dismissed the discrimination and victimisation complaints, confirmed the review decision, and refused transfer of the unfair dismissal claim.