Graham v Nexia Solutions Ltd & Anor

Permission to appeal requires a question of law and a real prospect of success. A tribunal must give reasons sufficient to explain and justify its decision, but need not provide comprehensive reasons addressing every point. An appellate court will not reopen factual conclusions merely because the appellant disputes the assessment. In prolonged ill-health cases, proper procedures must be followed and the employer must consider its obligations under the Employment Rights Act 1996 and the Disability Discrimination Act. Where the tribunals have thoroughly considered the evidence and no real point of law arises, permission should be refused.

The appellant, a scientific officer, brought claims of unfair dismissal and disability discrimination against his employer and the United Kingdom Atomic Energy Authority after his dismissal following approximately three years’ absence through ill-health. The employment tribunal dismissed both claims. It found no direct discrimination, no failure to make reasonable adjustments, and justified disability-related treatment. It also found that capability based on ill-health was a potentially fair reason for dismissal and that the employer had followed a reasonable procedure. The Employment Appeal Tribunal, HHJ Birtles, dismissed two appeals, finding no arguable point of law. On renewal of an application for permission to appeal, the Court of Appeal considered whether the tribunal’s reasons were adequate and whether there was a real prospect of establishing an error of law.

1. Application refused. The Court of Appeal refused permission to appeal because there was no real prospect of success and no real point of law justifying a full hearing by three judges.
2. The applicant had to show both that the proposed appeal raised a question of law and that it had a real prospect of succeeding. Alleged factual mistakes or legal errors did not automatically satisfy that threshold.
3. An employment tribunal must give reasons adequate to explain and justify its decision. Comprehensive reasons are unnecessary. The losing party must be able to understand why the claim failed and identify any possible error of law.
4. The employment tribunal had examined the history of the employer’s response to the prolonged absence, including medical evidence, consultation, procedure, ill-health retirement and reasonable adjustments. Its conclusions were factual and adequately reasoned. The appellant’s disagreement with them did not establish an appealable error.
5. Proper procedures remained necessary in a prolonged ill-health dismissal. However, an absence lasting years could create serious difficulties for the employer and fellow employees. On the tribunal’s findings, nothing further could reasonably have been done under the Employment Rights Act 1996 or the Disability Discrimination Act.

The order was: application refused.

• Court of Appeal (Civil Division): On 29 July 2008, refused the renewed application for permission to appeal.
• Employment Appeal Tribunal: HHJ Birtles dismissed the appellant’s two appeals, holding that there was no arguable point of law.
• Employment tribunal: Dismissed the claims of unfair dismissal and disability discrimination against both respondents.