Yeboah v Crofton

An appellate court may set aside an Employment Tribunal’s factual decision as perverse only where an overwhelming case establishes that no reasonable tribunal, properly considering the evidence and law, could have reached it. The appeal must remain a review for legal error, not a rehearing of the evidence, and a perversity ground must be fully particularised.

In direct race discrimination proceedings, the claimant bears the legal burden. Once the conduct is proved, rejection of the respondent’s asserted non-racial explanation may permit, but does not compel, an inference that race was the effective cause. Under the Race Relations Act 1976, a fellow employee may be personally liable although the employer establishes its statutory defence. Public interest, public policy and qualified privilege provide no separate defence to statutory race discrimination.

Yeboah v Crofton concerned three applications by a senior local authority officer alleging that a fellow senior officer had directly discriminated against him by repeatedly accusing him of corruption and by causing him to be treated as a police suspect. The Employment Tribunal upheld the applications and found that the accusations and conduct were racially motivated.

The Employment Appeal Tribunal allowed Mr Crofton’s appeals. It held that the three liability decisions were perverse, quashed them and directed rehearing by a differently constituted tribunal. Mr Yeboah appealed. The central question was whether the Employment Appeal Tribunal had identified an error of law or had impermissibly substituted its own assessment of an incomplete evidential record. Subsidiary issues concerned personal liability, the comparator, the burden of proof, tribunal procedure and asserted public-interest and privilege defences.

1. Appeal allowed unanimously. Mummery LJ delivered the leading judgment. Brooke LJ agreed and gave further reasons concerning the dangers of an appellate factual investigation; Sir Christopher Slade concurred. The Employment Appeal Tribunal’s order was set aside and the three relevant Employment Tribunal decisions were restored.

2. On an appeal from the Employment Appeal Tribunal, the Court of Appeal reviews the original tribunal proceedings and decision to determine whether a question of law arose. If the Employment Tribunal acted lawfully, neither appellate body may interfere merely because it would have assessed the case differently. An appeal is not a retrial, particularly where the appellate body lacks the complete documentary record, an official transcript and the advantage of seeing the witnesses.

3. A perversity challenge must be fully particularised and can succeed only where an overwhelming case shows that no reasonable tribunal, properly appreciating the evidence and law, could have reached the decision. Even grave doubts require great appellate caution, consistently with British Telecommunications PLC v Sheridan [1990] IRLR 27. The Employment Appeal Tribunal had examined selected evidence and substituted its assessment without establishing that demanding threshold.

4. The Employment Tribunal had credible evidence supporting its findings concerning the alleged sabbatical reward and the placing of Mr Yeboah’s name on a police list. Its procedural treatment of Councillor Hibberd’s proposed evidence and Mr White’s notes fell within its broad case-management discretion. Concerns about individual findings concerning recruitment fraud did not establish that the overall discrimination decisions were legally impermissible.

5. The claimant retained the burden of proving the acts, less favourable treatment and that racial grounds were the effective cause. Once Mr Crofton admitted or was found to have made an accusation, the tribunal was entitled to examine his asserted genuine and reasonable belief in its truth. Rejection of that explanation permitted, but did not require, an inference that the true explanation was racial. The tribunal also expressly used non-African employees as actual or hypothetical comparators in materially similar circumstances.

6. Sections 32 and 33 of the Race Relations Act 1976 permitted personal liability for a fellow employee’s knowing participation in discrimination committed in the course of employment, even where the employer escaped vicarious liability by proving that it had taken reasonably practicable preventive steps. Rule 9 gave the Employment Tribunal broad procedural discretion, reviewable only for an error of principle or a plainly wrong exercise. Public interest, public policy and qualified privilege were relevant only to evaluating the asserted non-racial explanation; they were not separate statutory defences.

• Court of Appeal (Civil Division): In Yeboah v Crofton [2002] EWCA Civ 794, the court unanimously allowed the appeal, set aside the Employment Appeal Tribunal’s order and restored the three relevant Employment Tribunal decisions.
• Employment Appeal Tribunal: By a decision dated 16 May 2001, it allowed Mr Crofton’s appeals, held the three Employment Tribunal decisions perverse, quashed the findings of race discrimination and directed rehearing by a differently constituted tribunal.
• Employment Tribunal: In Extended Reasons sent on 1 September 1998, it upheld the three applications and found that Mr Crofton had directly discriminated against Mr Yeboah on racial grounds.