Tariquez-Zaman v London Deanery of Post Graduate Medical and Dental Education

An Employment Appeal Tribunal may entertain a perversity challenge by cross-appeal where the challenged finding bears directly on the employment tribunal’s conclusion. A tribunal errs in law if it makes a factual finding without an evidential foundation. Where the remaining reasoning makes the decisive issue clear, the EAT may correct the error and dispose of the appeal without remission. Findings about later stages of a prospective career become immaterial where the claimant fails to establish a realistic prospect of obtaining the initial appointment on which those stages depended.

The appellant, a doctor, brought a victimisation claim against the respondent after an earlier discrimination claim. The Employment Tribunal found victimisation and awarded £15,430.72 at the remedies hearing. It nevertheless concluded that there was no real or substantial chance that the appellant would have obtained a general practitioner training appointment.

The EAT dismissed the appellant’s appeal, upheld the respondent’s cross-appeal on one factual finding, and refused permission to appeal. The appellant renewed his application to the Court of Appeal, arguing that the EAT had impermissibly substituted its own findings and should have remitted the matter. The central issue was whether the EAT could correct the error and uphold the result without remission.

1. Permission refused. The renewed application for permission to appeal had no reasonable prospect of success.
2. Appellate review of facts. Findings of fact were principally for the Employment Tribunal, and the EAT and Court of Appeal were bound by findings open to it as a matter of law. However, the Tribunal could make findings only where there was material capable of supporting them. A finding made without an evidential basis could amount to an error of law, ordinarily challengeable on perversity grounds.
3. Power of the EAT. The EAT was entitled to entertain a perversity challenge by cross-appeal because the challenged findings went directly to the conclusion on quantum. It correctly identified that the finding that the Eastern Deanery would not seek amplification of the originating Deanery’s material lacked evidential support and was inconsistent with the Tribunal’s other findings about the importance of interview scores.
4. Outcome without remission. The EAT was entitled to correct the error without remitting the case. The evidence supported the conclusion that the Eastern Deanery would have rejected the application because the appellant’s score was substantially below the minimum score for appointed candidates. If the application proceeded to the North West Deanery, that Deanery would require the score sheets and would reject it on discovering the appellant’s exceptional training requirements. His application would then be excluded from further national clearing.
5. The appellant therefore could not establish a realistic prospect of passing the first stage. The Tribunal’s findings concerning the later prospects of passing summative assessment and obtaining salaried employment became irrelevant. The EAT did not need to determine the remaining grounds of the cross-appeal, and remission was unnecessary.

• Court of Appeal (Civil Division): Renewed application for permission to appeal refused: [2008] EWCA Civ 1226.
• Employment Appeal Tribunal: Appellant’s appeal dismissed; respondent’s cross-appeal allowed; permission to appeal to the Court of Appeal refused: [2008] UKEAT 0380_07_1402.
• Employment Tribunal, London Central: Victimisation established in July 2006. At the remedies hearing, an award of £15,430.72 was made, including injury to feelings, psychiatric injury, aggravated damages and interest.