De Souza v TMP Worldwide & Anor

On an application for permission to appeal, the Court of Appeal will ordinarily rely on factual findings made by the first-instance tribunal, particularly where that tribunal heard and assessed the witnesses. Where those findings leave no realistic prospect of a successful ground of appeal, permission should be refused. A reference to the European Court is unnecessary where the case turns on facts or timeliness and raises no legal question requiring guidance.

The applicant had been employed by Austin Knight, later acquired by TMP Worldwide. After resigning, she brought claims of racial discrimination, victimisation and constructive dismissal under the Race Relations Act 1976. The Employment Tribunal rejected the claims, finding that many complaints were out of time or concerned discrete events, and that the remaining allegations were unsupported on the facts. The Employment Appeal Tribunal considered the complaints individually and identified factual findings which could not properly be overturned on appeal. The applicant applied to the Court of Appeal for permission to appeal and sought a reference to the European Court concerning the application of relevant Directives and Community law.

The application for permission to appeal was refused.

1. The Employment Tribunal had preferred the respondents’ evidence and made adverse findings about the applicant’s account. It found that the complaints were either out of time, because they concerned discrete acts which were not continuing, or had not been established. It also found no less favourable treatment on grounds of race in the matters considered on their merits.
2. The Employment Appeal Tribunal had correctly treated the Employment Tribunal’s factual conclusions as decisions which could not be overturned on appeal. The Court of Appeal would not have the advantage of seeing the witnesses give evidence and had to rely on the first-instance findings. Those findings were binding for the purposes of the application. There was no realistic ground of appeal capable of succeeding.
3. The proposed European reference was misconceived. A reference would be made only if necessary for the Court’s decision. The applicant had lost on the facts and on the timeliness of the complaints, rather than on an unresolved question of law. No point therefore required guidance from the European Court.
4. The order was: application refused.

1. Court of Appeal (Civil Division) Refused the applicant’s application for permission to appeal and declined to make a reference to the European Court.
2. Employment Appeal Tribunal Considered the complaints individually and treated the Employment Tribunal’s adverse factual findings as findings which could not be overturned on appeal.
3. Employment Tribunal Rejected the claims, finding that many matters were out of time and that the allegations which it considered on their merits were not established.