Williams v Home Office

An employment tribunal may reject a decision-maker’s explanation for one decision while accepting it for another. A credibility finding is not automatically global; the evidence must be assessed in the round.

An appeal alleging perversity has a stringent threshold. It succeeds only where the decision is one which no reasonable tribunal could have reached on a proper appreciation of the evidence and law. A different possible conclusion, or serious doubts about the documents, is insufficient. A tribunal may identify a terminal date for the discriminatory consequence where that date is central to the claimant’s case and evidence.

Sandra Williams, a black woman of Jamaican origin employed as an immigration officer by the Home Office, claimed direct race discrimination in decisions concerning the extension of full sick pay and pay during a phased return to work.

The Employment Tribunal found in her favour on the first issue but dismissed the second, and adjourned remedies. The Employment Appeal Tribunal dismissed her appeal concerning the second issue and an aspect of the first. The Court of Appeal considered whether the Tribunal had impermissibly assessed the same witness inconsistently, whether its acceptance of the employer’s explanation was perverse, and whether it could identify 26 November 2001 as the terminal date of the discriminatory consequence.

Appeal dismissed unanimously. Lord Justice Maurice Kay gave the judgment, with Lord Justice Tuckey and Lord Justice Auld agreeing.

1. Separate explanations. The Employment Tribunal was entitled to reject Mr Baxter’s explanation for limiting the first extension of full pay while accepting his explanation for the decision concerning phased return. The Tribunal had to assess the totality of the evidence, but rejection of a witness’s explanation on one issue did not require rejection of his explanation on another. The approach described in Anya v University of Oxford [2001] ICR 847 did not require a single conclusion on credibility across separate decisions.
2. Perversity. The Court applied the stringent test stated in Yeboah v Crofton [2002] IRLR 634, with the caution referred to in British Telecommunications Plc v Sheridan [1990] IRLR 27. An appeal succeeds only where there is an overwhelming case that no reasonable tribunal, properly appreciating the evidence and law, could have reached the decision. The documents concerning Mrs Fearn showed Mr Baxter’s involvement in related matters, but did not establish unequivocally that he knew the terms of her phased return on full pay. Another tribunal might have reached a different conclusion, but that was not the test. The Employment Appeal Tribunal’s conclusion was not perverse.
3. Terminal date. There was no technical difficulty in appealing the favourable finding on the first issue while the remedy remained unresolved. Harrod v Ministry of Defence [1981] ICR 8 was distinguishable. The date of 26 November was central to the claimant’s case because she said she was ready to return then. Her evidence showed that she did not return because of the proposed pay arrangements, rather than ill health. Identifying that date as the terminal date was therefore consistent with the case advanced and involved no error of law.
4. The order was: appeal dismissed.

1. Court of Appeal (Civil Division): on 27 July 2005, dismissed the appeal.
2. Employment Appeal Tribunal: on 12 October 2004, dismissed Williams’s appeal from the Employment Tribunal.
3. Employment Tribunal: in a reserved decision promulgated on 15 April 2004, upheld the complaint concerning the duration of the full-pay extension, dismissed the complaint concerning full pay during phased return, and adjourned remedies. An earlier hearing had been unsuccessful, but a review tribunal ordered a fresh hearing after further material emerged.