Garry v London Borough Of Ealing

Permission to appeal should be granted where the proposed appeal has a real prospect of success. An appellate tribunal should not interfere with an employment tribunal’s factual finding concerning detriment where the issue is ultimately factual, unless there is no reasonable basis for the finding. The court granting permission does not determine that the appeal will succeed. The proper relationship between less favourable treatment, detriment and the claimant’s knowledge of the treatment was left for determination by the full court.

Mrs Garry claimed unfair dismissal and race discrimination arising from the continuation of an investigation into her employment by the London Borough of Ealing. The Employment Tribunal rejected most of her claims but found race discrimination because the investigation continued beyond the period in which it would have continued for a person who was not Nigerian.

The Employment Appeal Tribunal allowed the Council’s appeal, holding that Mrs Garry’s lack of awareness of the continuing investigation could not realistically amount to a detriment, and dismissed the claim. Mrs Garry applied for permission to appeal and for an extension of time. The central issue was whether the Employment Appeal Tribunal had been entitled to interfere with the Employment Tribunal’s factual finding.

1. Permission granted. Mrs Garry had a real prospect of persuading the full court that the Employment Appeal Tribunal was not entitled, for the reasons given, to interfere with the Employment Tribunal’s finding.
2. The Employment Appeal Tribunal had itself recognised that whether treatment was less favourable under section 1 of the Race Discrimination Act 1976, and whether it constituted detriment in the employment context under section 4, were ultimately questions of fact. It nevertheless reversed the finding because it could find no reasonable basis for treating the continuing investigation as a detriment.
3. The proposed appeal raised an arguable legal issue. It was submitted that, where less favourable treatment on racial grounds had been found, the treatment itself constituted detriment, and that the claimant’s knowledge of the continuing treatment was relevant to compensation but not to establishing discrimination. That issue, including the relevance of the reasoning in D'Souza v The Automobile Association [1986] ICR 514, required full development and consideration by the full court.
4. The grant of permission did not indicate that the appeal would necessarily succeed. Costs in the appeal were ordered.

• Court of Appeal (Civil Division) — permission to appeal granted from the Employment Appeal Tribunal’s decision of 9 October 2000.
• Employment Appeal Tribunal — allowed the London Borough of Ealing’s appeal from the Employment Tribunal and dismissed Mrs Garry’s race-discrimination claim.
• Employment Tribunal — dismissed the unfair-dismissal claim and most race-discrimination allegations, but upheld race discrimination arising from the continuation of the investigation.