Clarke v Securitas UK Ltd

Permission to appeal from a specialist tribunal should be approached with appropriate modesty where the proposed appeal is confined to a point of law. A finding by an employment tribunal that alleged comparators were materially different is not perverse merely because another tribunal might have evaluated the differences differently. Differences in the value and ownership of property taken, and in the circumstances of detection and admission, may constitute material distinctions when assessing alleged racial discrimination. The Court of Appeal will not rehear factual issues merely because an applicant feels that the tribunal reached the wrong conclusion.

The applicant challenged findings of the Employment Tribunal dismissing complaints of unfair dismissal and race discrimination. After successive appeals, the Employment Appeal Tribunal remitted the race-discrimination issue concerning alleged white comparators, but the Employment Tribunal found material differences and declined to proceed to discrimination. The Employment Appeal Tribunal later dismissed the appeal, applying the approach in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440. The applicant sought permission to appeal, arguing that the comparator conclusion was perverse and that the whole case should be reheard.

1. Application dismissed. The proposed appeal had no real prospect of success.

2. Although the application was not technically a second appeal under section 55(1) of the Access to Justice Act 1999, the court adopted an appropriately modest approach because the proposed appeal concerned a point of law from a specialist tribunal whose own appellate jurisdiction was also limited to points of law.

3. The Employment Tribunal was entitled to regard the alleged comparators as materially different. The value involved differed substantially. The property taken in the comparator cases belonged to the employer, whereas the applicant was alleged to have taken customers’ property. The comparator employees were detected through a short trail and admitted their conduct. It was not perverse to treat those matters as material distinctions.

4. The court recognised the applicant’s sense of grievance but emphasised that factual issues receive only one full hearing before an employment tribunal. Appellate courts cannot intervene merely because the employer or tribunal may have reached a conclusion that appears wrong on the facts.

5. The proposed wider rehearing was not pursued as an independent ground. The court noted, in the context of Waugh and others v H.B. Clifford & Sons Ltd and another [1982] Ch. 374, that counsel might have had ostensible authority to make the relevant concessions.

• Court of Appeal (Civil Division): Permission to appeal refused and application dismissed.
• Employment Appeal Tribunal: Appeal dismissed after the Employment Tribunal found material differences between the applicant and the alleged comparators.
• Employment Tribunal: Complaints of unfair dismissal and race discrimination dismissed by majority; the later remitted discrimination issue was also rejected.