Butt v Home Department

An Employment Appeal Tribunal may treat internally inconsistent findings as an error of law. Where one finding attributes a failure to the applicant’s own request and another treats the same failure as victimisation, the tribunal may reverse the latter finding rather than remit the issue where the findings and documentation make the proper conclusion clear. A challenge on a narrow issue does not create an opportunity to reopen unrelated complaints. An adverse tribunal decision, without material indicating partiality, does not establish an arguable case of bias.

Mr S A Butt brought complaints of racial discrimination and victimisation against the Home Department arising from his employment and organisational changes. The Employment Tribunal made six findings, three favourable to him. The Employment Appeal Tribunal, with Maurice Kay J presiding, allowed the Home Department’s appeal on the finding that failure to send an application pack constituted victimisation, while dismissing another ground.

Mr Butt applied to the Court of Appeal for permission to challenge that conclusion and the refusal to remit the issue to a differently constituted tribunal. He also sought to reopen all his complaints and alleged bias. The central questions were whether the EAT had erred in law and whether any remittal could extend beyond the narrow issue.

1. Application refused. Lord Justice Pill held that the application disclosed no arguable error of law.
2. The Employment Tribunal had found that the application pack was deliberately not sent because the Home Department was complying with Mr Butt’s request that no correspondence be sent to him. It had nevertheless found that the same failure constituted victimisation. Those findings were inconsistent. The EAT was entitled to conclude that the Employment Tribunal had erred in law.
3. The EAT was also entitled to reverse the finding rather than remit the issue. The case was well documented, and the Employment Tribunal’s earlier finding made it clear that the victimisation complaint on this point could not succeed.
4. Even if the EAT’s conclusion had been arguably wrong and the matter had been remitted, any further appeal would have remained confined to the narrow application-pack issue. It would not have opened the way to a complete rehearing of the other complaints.
5. The allegation of bias was unsupported. The fact that tribunals had found against Mr Butt did not, without material indicating partiality, establish an arguable case of bias.

• Court of Appeal (Civil Division): On 26 April 2002, Lord Justice Pill refused permission to appeal. [2002] EWCA Civ 783
• Employment Appeal Tribunal: On 18 December 2001, with Maurice Kay J presiding, the EAT allowed the Home Department’s appeal in part and dismissed it on another point.
• Employment Tribunal: Judgment was given on 4 August 2000. The tribunal made six findings concerning complaints of racial discrimination and victimisation, three adverse to Mr Butt and three in his favour.