Forson v The Governing Body of Harwich School & Ors

An appeal from an employment tribunal in this class of case lies only on a point of law. The appellate court does not re-try disputed facts or interfere with factual findings unless the tribunal made an error of law. That includes misinterpreting or misapplying the law, or reaching a perverse decision unsupported by the evidence or plainly wrong on the materials before it. Permission to appeal requires a real prospect of success based on a reasonably arguable error of law. Generalised criticisms, disagreement with factual conclusions and personal grievances do not satisfy that threshold. The renewed application was therefore refused because no arguable error of law had been identified.

The appellant, a maths teacher of Ghanaian origin, was dismissed with notice after disciplinary warnings and suspension. Following a six-day hearing, the employment tribunal rejected his complaints of unfair dismissal, race discrimination and victimisation, together with his claim for reinstatement. The tribunal also refused a review application. The Employment Appeal Tribunal rejected his appeal under rule 3(10) in UKEATPA/0660/09/DM, and Sir Richard Buxton refused permission to appeal. The appellant renewed his application before the Court of Appeal. The central question was whether his criticisms disclosed a reasonably arguable error of law with a real prospect of success.

The renewed application for permission to appeal was refused.

1. Scope of appellate jurisdiction. An appeal from the employment tribunal in a case of this kind lies only on a point of law. Findings of fact and conclusions drawn from those facts are not subject to re-hearing merely because the appellant disagrees with them.
2. Permission threshold. Permission can be granted only where the proposed appeal has a real prospect of success. That requires a reasonably arguable error of law by the employment tribunal.
3. Error of law. An error of law includes misinterpretation or misapplication of the law. It also includes a perverse decision, such as a finding for which there is no evidence or a conclusion plainly wrong on the evidential and legal materials before the tribunal.
4. Application. The tribunal had found that the alleged instances of less favourable treatment were not on racial grounds and that the appellant was not treated less favourably than a hypothetical comparator. It had also found that the dismissal resulted from a reasonable belief in breaches of the warnings, an irreparable breakdown in trust and confidence, a reasonable and fair investigation, and reasonable procedures. The dismissal fell within the band of reasonable responses. Those conclusions were primarily factual and disclosed no arguable error of law.
5. Generalised and unsubstantiated criticisms of the school, tribunal and judiciary, together with the appellant’s work-related health and personal difficulties, did not provide a legal basis for an appeal confined to questions of law. The application was refused for lack of a real prospect of success.

1. Court of Appeal (Civil Division) On 30 June 2010, Lord Justice Mummery refused the renewed application for permission to appeal.
2. Employment Appeal Tribunal The appeal was rejected on 2 March 2009 under rule 3(10) in UKEATPA/0660/09/DM. Sir Richard Buxton refused permission to appeal on 17 March 2010.
3. Employment Tribunal The complaints of unfair dismissal, race discrimination and victimisation, and the claim for reinstatement, were rejected on 28 April 2009. A review application was rejected on 18 May 2009.