Simpson v Kensington Housing Trust

An appeal from an Employment Tribunal lies only on a question of law. The appellate court cannot rehear evidence or substitute its own view for a tribunal’s finding of fact. Under Race Discrimination Act 1976, section 1(1)(a), a claimant must establish both less favourable treatment and treatment on racial grounds. A tribunal’s finding that different treatment arose from pragmatic, job-related reasons is a finding of fact. Disagreement with that finding does not create an appealable question of law. Permission to appeal should be refused where the proposed appeal has no real prospect of success.

Carol Simpson succeeded before the Employment Tribunal on constructive dismissal and partially on sex discrimination, but failed on race discrimination. She appealed the race discrimination decision to the Employment Appeal Tribunal, which concluded that no question of law arose. The Employment Appeal Tribunal later refused an application to review that decision under Employment Appeal Tribunal Rules 1993, rule 33(1)(c). Keene LJ had also refused permission to appeal. The central issue was whether the proposed grounds raised questions of law with a real prospect of success.

Disposition

The application for permission to appeal was refused.

1. The procedural history did not, by itself, justify refusing to consider the application. Lord Justice Mummery heard the applicant’s detailed submissions and examined the substance of the proposed grounds.
2. Under section 1(1)(a) of the Race Discrimination Act 1976, less favourable treatment is insufficient unless it is shown to have occurred on racial grounds. The Employment Tribunal found that any difference in treatment was explained by pragmatic considerations, the needs of the jobs and the personnel reasonably considered able to perform them. It found that race was not the reason for the treatment.
3. That conclusion was a finding of fact. The Court of Appeal had no jurisdiction to re-answer the evidential questions considered by the Employment Tribunal or to substitute its own assessment of the evidence. Questions concerning what happened to particular posts, why posts were not declared redundant, whether alternative posts should have been offered, and whether an appointment amounted to promotion were questions of fact, not law.
4. An appeal to the Employment Appeal Tribunal, and an appeal to the Court of Appeal in this context, required a question of law arising from the Employment Tribunal’s decision. Permission also required a real prospect of success. The proposed grounds merely repeated factual objections already considered by the Employment Appeal Tribunal and by Keene LJ, and disclosed no error of law.
5. The refusal of the Employment Appeal Tribunal to review its decision under Employment Appeal Tribunal Rules 1993, rule 33(1)(c), did not alter the absence of an appealable question or a real prospect of success.

1. Court of Appeal (Civil Division): In [2002] EWCA Civ 415, Lord Justice Mummery refused permission to appeal.
2. Court of Appeal (Civil Division): Keene LJ refused an earlier application for permission to appeal on 30 January 2002, holding that the proposed grounds challenged findings of fact.
3. Employment Appeal Tribunal: On 1 February 2002, the Tribunal refused an application to review its earlier decision under Employment Appeal Tribunal Rules 1993, rule 33(1)(c).
4. Employment Appeal Tribunal: On 5 November 2001, the Tribunal dismissed the appeal from the Employment Tribunal because no question of law arose.
5. Employment Tribunal: The Tribunal found for the claimant on constructive dismissal, partially on sex discrimination, and against her on race discrimination.