Iteshi v London Borough Of Harrow & Ors

An appeal from an Employment Tribunal is not an opportunity to reargue the facts or invite the Employment Appeal Tribunal to substitute its assessment of the evidence. An alleged factual error amounts to an error of law only where it is significant and correcting it would seriously undermine the tribunal’s reasoning on an important matter. Findings reached by weighing competing evidence will stand if they were reasonably open to the tribunal.

In a direct race discrimination claim, a tribunal may conclude that a recruitment criterion was applied equally and that the claimant was not selected because of relevant deficiencies in knowledge or experience. A but for test has no independent significance where causation is not genuinely in issue. Reasons need address only relevant issues.

The claimant, a qualified barrister of black African, Nigerian and Ibo origin, applied to a local authority for Legal Assistant and Legal Services Officer positions. He was not shortlisted for the first post. He was offered the second post, subject to conditions, but the offer was withdrawn after concerns about his conduct in telephone calls and written communications. He also claimed that temporary agency work had been promised.

The Employment Tribunal rejected his race discrimination and contractual claims, finding that the first decision resulted from his lack of relevant childcare experience, that the second resulted from his conduct, and that no temporary post had been offered. The appeal alleged factual errors, perversity, misdirection, inadequate reasons and breach of article 6 of the European Convention on Human Rights.

1. Appeal dismissed. The Employment Appeal Tribunal rejected all grounds and upheld the Employment Tribunal’s findings and the award of costs.
2. An alleged error in the evidence is an error of law only if it is significant and correction would seriously undermine the tribunal’s reasoning and conclusions on an important matter. The statistical analysis, descriptions of the passport and recruitment paperwork did not meet that threshold.
3. The Employment Appeal Tribunal is not a fact-finding body. Complaints that invite a different assessment of application forms, witness evidence, chronology or competing explanations are attempts to reargue the facts. The Employment Tribunal was entitled to accept that practical experience in childcare matters was relevant to the recruitment criteria, even if the criteria were expressed principally as knowledge indicators.
4. The finding that the Legal Services Officer offer was withdrawn because of the claimant’s conduct was reasonably open to the Employment Tribunal. The proposed approach of disregarding the respondents’ evidence and relying on chronology alone was artificial and inappropriate. The finding was within the range of reasonable decisions available on the evidence.
5. There was no misdirection on direct race discrimination. The Tribunal could find that the selection criteria had been applied equally and that the claimant was excluded because he lacked relevant knowledge and experience. In any event, those findings provided a non-racial explanation capable of discharging the respondents’ burden. A but for test had no material significance because causation was not genuinely in issue.
6. The reasons complied with rule 30(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The omission of the long-listing issue did not make the reasons inadequate because the shortlisting decision was the relevant issue.
7. Article 6 of the European Convention on Human Rights was not infringed. No procedural disadvantage or unfairness at the hearing had been shown. The costs decision disclosed no unlawful exercise of discretion and was not open to appellate interference.

• Employment Appeal Tribunal: Appeal dismissed on 3 August 2011.
• Employment Tribunal, Watford: Judgment and written reasons sent to the parties on 16 July 2009. The claimant failed on the race discrimination and contractual issues, although he succeeded on an application to extend time for one race discrimination claim.