Goldman Replace Name v Enfield & Haringey Health Authority

An applicant before an Employment Tribunal has no automatic legal entitlement to legal representation. The Human Rights Act and European human-rights jurisprudence do not create such an entitlement. Decisions concerning witness orders fall within the tribunal’s discretion. Appellate intervention requires an arguable unfairness, error of law or perversity; disagreement with factual findings or credibility assessments is insufficient. An Employment Tribunal may order costs, although such orders are not generally made. Permission to appeal should be refused where the tribunal understood and applied the correct costs test and no arguable inconsistency or misdirection is shown.

Goldman Replace Name v Enfield & Haringey Health Authority concerned an application for permission to appeal from the Employment Appeal Tribunal. The applicant, formerly Director of Human Resources for the North London College of Health Care Studies, alleged direct racial discrimination following his dismissal by the respondent health authority.

The Employment Tribunal rejected the discrimination complaint and ordered the applicant to pay costs. The Employment Appeal Tribunal dismissed his appeal. Before the Court of Appeal, he challenged the fairness of the Employment Tribunal hearing, including his lack of legal representation and the refusal of witness orders, alleged perversity in the factual findings concerning a Chinese colleague’s travel claims, and the costs order.

Application for permission to appeal refused. Lord Justice Pill held that none of the proposed grounds was arguable.

1. Fair hearing and representation. There is no rule of law that an applicant before an Employment Tribunal is entitled to legal representation. The Human Rights Act, incorporating European human-rights jurisprudence, did not give every Employment Tribunal applicant such an entitlement.
2. Witnesses. The Employment Tribunal had a discretion concerning applications for witnesses. The Employment Appeal Tribunal had upheld the exercise of that discretion. No specific evidence had been identified which the proposed witness could or would give, and no sufficient basis of unfairness or bias was shown.
3. Fact-finding and perversity. The Employment Tribunal was the primary judge of fact. It had heard seven days of evidence and was entitled to assess the credibility and reliability of the applicant and the comparator. The applicant’s disagreement with the tribunal’s assessment of the audit material, explanations concerning travel claims, and computerisation work did not make the findings arguably perverse. The Court of Appeal found no arguable unfairness in the hearing or perversity in the rejection of the discrimination claim.
4. Costs. The Employment Tribunal had power to order costs. The fact that costs orders were not generally made did not establish that the order was impermissible. Although two passages in the Employment Tribunal’s reasoning were not entirely clearly phrased, the Employment Appeal Tribunal was entitled to conclude that they were not inconsistent and that, read as a whole, the tribunal understood the correct test and the facts to which it had to be applied.
5. The application for permission to appeal was therefore refused.

• Court of Appeal (Civil Division) On 31 July 2001, permission to appeal from the Employment Appeal Tribunal was refused: [2001] EWCA Civ 1329.
• Employment Appeal Tribunal On 5 March 2001, Mr Recorder Burke QC dismissed the applicant’s appeal from the Employment Tribunal.
• Employment Tribunal for London North The tribunal rejected the allegation of direct racial discrimination and ordered the applicant to pay the respondents’ costs.