Fosh v Cardiff University

The Court of Appeal refused permission to appeal from the Employment Appeal Tribunal. The central legal issues concerned victimisation under section 2 of the Race Relations Act 1976, the applicability of the reverse burden of proof in section 54A, the application of Article 8 ECHR to an employer’s search of an employee’s emails, and the fairness of dismissal under section 98(4) of the Employment Rights Act 1996. The Court accepted the Employment Tribunal’s factual findings that the claimant had placed herself in a clear conflict of interest by representing a former student in litigation against her employer and that the employer’s disciplinary response fell within the range of reasonable responses. The EAT had correctly applied established authorities (including Khan and Aziz) and there was no error of law or perversity in the Tribunal’s reasoning.

The Court also dealt with procedural matters: the application for renewed permission was heard orally after an initial paper refusal, and the respondent was awarded its costs of the renewed application.

Background and parties: The appellant, Professor Patricia Fosh, was a senior academic employed by Cardiff University (the respondent). She represented a former PhD student, Dr Chen, in a race discrimination claim brought against the University, and provided information to the Commission for Racial Equality in relation to that claim. The University contended that her conduct created a conflict of interest and, after internal investigation and disciplinary proceedings, dismissed her.

Procedural history: The claimant brought tribunal claims for victimisation under section 2 of the Race Relations Act 1976 and for unfair dismissal under section 94 of the Employment Rights Act 1996. The Employment Tribunal (ET) heard evidence over 14 days and dismissed the claims (30 July 2007). The claimant appealed to the Employment Appeal Tribunal (EAT) which dismissed the appeal (23 January 2008). The claimant sought permission to appeal to the Court of Appeal; an initial paper application for permission was refused on 30 October 2008 and a renewed oral application was heard on 14 January 2009. Judgment refusing permission was handed down on 3 February 2009.

Nature of the claim / relief sought: The appellant sought to challenge dismissal for victimisation under RRA 1976 s2 and unfair dismissal under ERA 1996 s94, arguing (inter alia) that her acts in representing the student and giving information to the CRE were protected acts and that the Tribunal and EAT erred in law.

Issues framed by the court:

• Whether the Tribunal erred in law in its causation analysis for victimisation under RRA 1976 s2 (including consideration of authorities such as Khan and Aziz);
• Whether the reverse burden of proof in s54A RRA 1976 applied to victimisation claims;
• Whether the search of the claimant’s emails and the use of the material engaged Article 8 ECHR and, if so, whether any interference was justified;
• Whether the disciplinary process and dismissal were procedurally or substantively unfair under ERA 1996 s98(4);
• Whether any of the Tribunal’s fact-findings were perverse.

Court’s reasoning and conclusions: The Court reviewed the EAT’s approach and the Tribunal’s detailed factual findings. It concluded that the Tribunal was entitled to find that the claimant’s personal conduct in representing a litigant against her own employer put her in a glaring conflict of interest, that the employer’s disciplinary response was within the band of reasonable responses and that there was no unlawful victimisation. On the reverse burden point the EAT had correctly applied the law and in any event the Tribunal had found a non-discriminatory explanation. On Article 8 the Tribunal was entitled to find the interference justified. The Court emphasised the appellate standard of review: it would not reweigh facts where the Tribunal’s findings were open to it. Permission to renew the appeal was refused and the respondent awarded costs of the renewed application.

Permission to appeal was refused (renewed application dismissed). The Court held that the Employment Tribunal’s factual findings — notably that the claimant had created a clear conflict of interest by representing a party against her employer and that the employer’s disciplinary action was within the range of reasonable responses — were open to the Tribunal and not vitiated by error of law. The Employment Appeal Tribunal had correctly applied the law on causation for victimisation, the reverse burden issue and the Article 8 point. There was no perversity in the Tribunal’s findings.

Employment Tribunal decision dismissed claimant's claims (30 July 2007). Appeal to the Employment Appeal Tribunal dismissed (HHJ Peter Clark, 23 January 2008). Application for permission to appeal to the Court of Appeal refused on paper (Sir Richard Buxton, 30 October 2008); renewed oral application heard in the Court of Appeal (Wall LJ) 14 January 2009, permission refused (3 February 2009). Neutral citation for this judgment: [2009] EWCA Civ 38.