Seray-Wurie v Skinners' Company School For Girls & Anor

On an application for permission to appeal from the Employment Appeal Tribunal, the Court of Appeal may interfere only on a question of law. Complaints about factual findings, evidential rulings or procedural conduct must show a real prospect of success. An employment tribunal should address a bias allegation made during the hearing in its reasons. The EAT may assess that allegation by reference to the tribunal’s reasons and its members’ responses, applying the informed-observer test. An unexplained evidential ruling, minor factual error or limited treatment of a constructive-dismissal ground will not justify permission where it could not affect the result.

Dr Seray-Wurie was employed as a science teacher by the first respondent from April 1988 until she resigned on 4 September 2000. She brought complaints of race discrimination and unfair dismissal, the latter being advanced as constructive dismissal. The London Central Employment Tribunal rejected each allegation after a three-day hearing.

The Employment Appeal Tribunal dismissed her appeal at a preliminary hearing. She then applied to the Court of Appeal for permission to appeal, alleging bias, unfair exclusion of comparator evidence, material factual error and inadequate consideration of her constructive-dismissal case.

Lord Justice Tuckey, sitting alone, refused permission to appeal.

1. The Court of Appeal’s jurisdiction was confined to questions of law. It could not interfere with factual conclusions reached by the Employment Tribunal merely because the applicant disagreed with them. The proposed grounds, individually or cumulatively, had to disclose a real prospect of successfully appealing.
2. The Employment Tribunal was entitled, and in the circumstances required, to deal in its reasons with an allegation that the chairman had displayed bias through interventions and body language. Its explanation that the interventions kept witnesses to the point was convincing. The members’ statements that they had observed no detrimental body language were also relevant.
3. The EAT applied the accepted informed-observer test and was entitled to conclude that there was no real possibility or danger that an informed observer would regard the Tribunal as biased. It was unnecessary for the EAT to repeat expressly that its conclusion rested on the Tribunal’s reasons and the members’ statements, since that was clear from the context.
4. The Tribunal had not explained why documents concerning a white teacher’s treatment under the capability procedure were excluded, and the EAT had not addressed that complaint. That omission was unfortunate, but the evidence was advanced by the respondents and there was no real prospect that its consideration would have altered the result.
5. The Tribunal had made a factual mistake in stating that there was no evidence that the applicant had requested a written statement of employment terms. The error was minor and did not advance the race-discrimination or constructive-dismissal claims. A factual mistake did not, without more, establish bias.
6. The EAT had adequately dealt with the constructive-dismissal complaint by adopting the Tribunal’s findings. The notice of appeal and skeleton argument raised that issue only in general and passing terms, so fuller elaboration was unnecessary.

The application was therefore refused.

1. Court of Appeal (Civil Division) [2002] EWCA Civ 1393: permission to appeal refused.
2. Employment Appeal Tribunal: appeal from the Employment Tribunal dismissed at a preliminary hearing.
3. London Central Employment Tribunal: complaints of race discrimination and unfair dismissal, including constructive dismissal, dismissed.