Xavier v Highways Agency

In a race-discrimination claim, the identity of the employing public body will not affect the statutory approach or evidential scope where the tribunal has admitted and considered relevant evidence across the employment periods. A factual inquiry does not become a question of law merely because perversity is alleged. Permission to appeal requires a real prospect of success or another compelling reason for hearing the appeal. Where neither requirement is met, the application should be dismissed.

The appellant claimed racial discrimination arising from a failure to promote. The Employment Tribunal decided, among other matters, that the claim concerned actions and failures within the Highways Agency. At a preliminary hearing, the Employment Appeal Tribunal rejected the appellant’s argument that the Crown was his employer and that this affected the application of sections 32 and 75 of the Race Relations Act 1976 or widened the relevant evidence. It also rejected a perversity challenge to the factual findings. The appellant applied to the Court of Appeal for permission to appeal.

Application dismissed. Lord Justice Henry, sitting alone, held that the requirements for permission to appeal were not satisfied.

1. Whether the appellant was employed by the Crown or by the Highways Agency made no difference to the application of sections 32 and 75 of the Race Relations Act 1976. The Employment Tribunal had admitted and considered evidence concerning the earlier Property Services Agency period as well as the Highways Agency period. The case therefore would not have developed differently because of the alleged difference in employer or evidential scope.
2. The appeal lay on a point of law only. An essentially factual inquiry could not be converted into a legal question merely by alleging that the Employment Tribunal’s conclusion was perverse. The Employment Appeal Tribunal had carefully considered the allegations of racism and was entitled, on the material before it, to conclude that the failure to promote was based on doubts about the appellant’s managerial suitability rather than racism.
3. The applicable permission test was whether the appeal had a real prospect of success or whether there was some other compelling reason for it to be heard. Neither requirement was made out. The formal order was that the application be dismissed.

• Court of Appeal (Civil Division): On 13 February 2001, the application for permission to appeal was dismissed: [2001] EWCA Civ 220.
• Employment Appeal Tribunal: At a preliminary hearing, the appeal from the Employment Tribunal was dismissed.
• Employment Tribunal: By a decision dated 17 September 1999, the tribunal considered the discrimination claim and the evidence concerning the relevant employment periods.