Kularatne v Horizon NHS Trust

Permission to appeal from an Employment Appeal Tribunal decision should be refused where the proposed appeal has no real prospect of success and raises no arguable question of law. An Employment Tribunal is not required to address every aspect of the evidence in its reasons. It must, however, identify the material primary facts and apply the correct legal approach so that the basis of its decision can be understood. In a race-discrimination claim, the tribunal must consider less favourable treatment, a difference in race, and whether the treatment was on racial grounds. A party’s dissatisfaction with the tribunal’s evaluation of evidence, or with perceived unfairness in a selection process, does not itself establish an error of law.

The claimant, a State Registered nurse employed by the respondent NHS Trust, applied for a Team Manager position during a restructuring of services. A white British candidate was appointed. The Employment Tribunal accepted that the claimant had been treated less favourably and that there was a difference in race, but found that the appointment was made on merit through a fair process and was not on racial grounds.

The Employment Appeal Tribunal dismissed the claimant’s appeal at a preliminary hearing, finding no arguable question of law. On a renewed application, the Court of Appeal considered whether alleged omissions in the Employment Tribunal’s reasoning about the evidence gave the proposed appeal a real prospect of success.

1. Application refused. Permission to appeal was refused because the proposed appeal had no real prospect of success.
2. The question at the permission stage was whether there was an arguable question of law arising from the Employment Tribunal’s decision. The claimant accepted that the tribunal had correctly directed itself on the law, including the questions identified in King v Great Britain China Centre [1991] IRLR 513.
3. An Employment Tribunal need not deal expressly with every aspect of the evidence when giving reasons. The essential question was whether its reasons showed that it had applied the correct legal approach and made findings sufficient to explain its conclusion.
4. The tribunal’s rejection of the claimant’s central case—that the appointment process was a sham or a foregone conclusion—did not show that it had failed to consider other possible inferences of racial discrimination. Its self-direction demonstrated awareness that discrimination might be inferred from primary facts even without proof of a conspiracy or deliberate direct discrimination.
5. The matters relied on by the claimant concerning the successful candidate’s qualification, an alleged racist perception in an unsigned statement, and missing interview notes were insufficient, individually or cumulatively, to raise an error of law. The tribunal had sufficient material before it and was entitled to reach its conclusion on the evidence.

Order: permission to appeal refused.

• Court of Appeal (Civil Division): refused permission to appeal on the renewed application.
• Employment Appeal Tribunal: dismissed the claimant’s appeal at a preliminary hearing.
• Employment Tribunal: dismissed the claim of race discrimination.