Stronach v Walsall Metropolitan Borough Council

Permission to appeal from the Employment Appeal Tribunal requires an arguable point of law and a real prospect of success, or another compelling reason for the appeal to proceed. The Court of Appeal will not revisit factual findings unless perversity is shown. A tribunal may conclude that there is no breach of the reasonable-adjustment duty under the Disability Discrimination Act 1995 where no adjustment could enable a return to work or alter the capability-based reason for dismissal. Statutory time limits remain subject to the tribunal’s discretion to extend them. Comparators must be assessed by reference to the particular circumstances of each individual.

The claimant, a social-work manager employed by the respondent local authority, brought complaints alleging racial discrimination, disability discrimination, trade-union victimisation and unfair dismissal. His first complaint concerned earlier events and was held out of time; the Employment Tribunal declined to extend time and also rejected the allegations on their merits. In relation to the second complaint, the tribunal found that dismissal was caused by incapacity through ill health and was fair. It accepted that the claimant was disabled but found that no reasonable adjustment could enable him to continue working. The Employment Appeal Tribunal dismissed his appeal and refused permission to appeal. The central issue before the Court of Appeal was whether any ground disclosed an arguable error of law or otherwise justified permission.

Lord Justice Peter Gibson dismissed the application for permission to appeal.

1. Permission threshold. An appeal from the Employment Appeal Tribunal must raise an arguable point of law. Permission also depends on whether the proposed appeal has a real prospect of success or whether there is another compelling reason for it to proceed.
2. Disability discrimination. The tribunal had considered the duty under section 6(1) of the Disability Discrimination Act 1995 to take reasonable steps to prevent a disabled person being placed at a substantial disadvantage. Its finding that no adjustment could enable the claimant to return to work was open to it. The conclusion was consistent with paragraph 6.21 of the Disability Discrimination Code of Practice, which recognised that dismissal could be justified where no reasonable adjustment could alter the reason for dismissal.
3. Time limits. The tribunal had exercised the statutory discretion not to extend time for the first complaint. The matters before 24 August 1998 were therefore out of time, and no arguable error in that exercise was shown. The same conclusion applied to the trade-union complaint, which was also supported by a factual finding that the treatment was not because of trade-union activities.
4. Factual findings and comparators. The claimant’s challenges to the treatment of white comparators, the medical evidence and the evidence of the respondent’s manager sought to reopen findings of fact. Comparators must be examined with care and in their individual circumstances, but the tribunal had made clear findings and there was no basis for alleging perversity.
5. Dismissal and pension decision. The later success of the claimant’s pension appeal did not establish that the dismissal was unfair. The tribunal was entitled to find that the dismissal resulted from incapacity through ill health.

There was no realistic prospect of success and no other compelling reason for an appeal. The formal order was: application dismissed.

1. Court of Appeal (Civil Division): In [2001] EWCA Civ 573, the application for permission to appeal was dismissed.
2. Employment Appeal Tribunal: The claimant’s appeal from the Employment Tribunal was dismissed and permission to appeal was refused.
3. Employment Tribunal: The claimant’s complaints were dismissed. The first complaint was out of time, with no extension granted; the second complaint, including the unfair-dismissal and discrimination allegations, failed on the tribunal’s findings.