Adegbite v Commissioners of Inland Revenue

An appeal from the Employment Appeal Tribunal lies only on a point of law. A decision is perverse only where no reasonable tribunal could have reached it; it is insufficient that the court would have reached a different conclusion. Case-management interventions to keep cross-examination focused do not, without more, make a hearing unfair. Alleged unfairness from late documents must be assessed by reference to actual prejudice. An imbalance between legal representation does not establish unfairness where the party was represented and there is no evidence that the case was inadequately presented.

Mrs Adegbite applied for permission to appeal against the Employment Appeal Tribunal’s dismissal of her appeal from an Employment Tribunal decision dismissing her race-discrimination claim against the Commissioners of Inland Revenue and Mrs Demirsoz. The Employment Appeal Tribunal had rejected complaints about the conduct and fairness of the hearing, late disclosure and witness statements, unequal representation, and the factual finding that the alleged difference in treatment was not racial.

The Court of Appeal had to decide whether there was a real prospect of showing an error of law, perversity, or an unfair trial.

1. Application refused. The application was out of time, but an extension would have been granted if the merits disclosed a good case. They did not.
2. Under Employment Tribunals Act 1996, section 37(1), the right of appeal to the Court of Appeal is confined to a point of law. A finding is not perverse merely because the court might have reached a different conclusion. The relevant question is whether no reasonable appellate tribunal could have reached the decision.
3. A tribunal chairman must control the length of proceedings, including cross-examination. Interruptions directing an advocate to move from unproductive background matters to matters that matter do not automatically create unfairness. Here, the questioning had already occupied several hours and the representative was allowed additional time when required.
4. Late disclosure and late exchange of witness statements are assessed by their effect on the applicant. The Employment Appeal Tribunal was entitled to find that the representative had sufficient time to consider the material and that no prejudice had been shown, particularly as no request for further time had been made.
5. Unequal representation, with the applicant represented by a trade union official and the respondents by counsel, did not itself establish an unfair hearing. There was no evidence that the applicant’s case had not been adequately presented. The Employment Appeal Tribunal was entitled to uphold the Employment Tribunal’s factual conclusions on the discrimination complaint and to find that the hearing was fair.

The applications were refused.

• Court of Appeal (Civil Division): permission to appeal from the Employment Appeal Tribunal was refused.
• Employment Appeal Tribunal: the appeal from the Employment Tribunal was dismissed.
• Employment Tribunal: the race-discrimination claim was dismissed.