Afolayan v Star Texaco & Ors

An appellate tribunal hearing an appeal on a point of law must respect the fact-finding function of the tribunal below. It should not reargue factual issues or interfere with credibility findings merely because another view of the evidence is possible. Intervention is justified only where the tribunal below made a legal error, including a sufficiently striking misdirection on the facts to amount to an error of law. Issues that become academic because the substantive complaint fails need not be decided.

The appellant brought consolidated complaints of race discrimination, victimisation, breach of contract and unfair dismissal against his former employer and several employees. Following a nine-day hearing, the Employment Tribunal dismissed the complaints, finding against the appellant on credibility and holding that several complaints were out of time.

The Employment Appeal Tribunal dismissed the appellant’s appeal, concluding that there was no error of law. The appellant applied to the Court of Appeal for permission to appeal, challenging the tribunal’s factual findings, credibility assessment, limitation decisions and treatment of a promotion complaint. The central issue was whether any challenge disclosed an arguable error of law with a real prospect of success.

1. Application dismissed. The Court of Appeal found no real prospect of a successful appeal.
2. An appellate tribunal’s jurisdiction was confined to points of law. It could not reconsider factual matters merely because the litigant disagreed with the findings or identified details said to have been overlooked.
3. The Employment Tribunal had given clear and adequate reasons for preferring the respondents’ evidence. Its assessment was reached after hearing witnesses over nine days, and an appellate court was substantially less well placed to assess credibility.
4. Findings of fact could be challenged only where the tribunal had misdirected itself in a sufficiently striking manner so as to have gone wrong in law. The Employment Appeal Tribunal had correctly applied that limitation and had found evidence capable of supporting the challenged findings.
5. The complaints concerning bonus payments were properly treated as complaints about one-off acts made out of time. The Employment Appeal Tribunal was entitled to reject the promotion challenge as an attempt to reargue the facts.
6. The question whether the employer or its successor was the proper respondent was academic once the substantive complaints failed. Courts and tribunals need not determine such an issue where it cannot affect the result.

• Court of Appeal (Civil Division): Permission to appeal refused and the application dismissed.
• Employment Appeal Tribunal: Appeal dismissed on 10 December 2001.
• Employment Tribunal: Following a nine-day hearing in June 2000, the consolidated complaints were dismissed in whole or in substantial part, with certain complaints held out of time.