Arrowsmith v. Nottingham Trent University

An Employment Tribunal’s decision on review will stand where it has correctly identified the review gateways, conducted a fair hearing and concluded that the new material would not materially affect the original decision. The Employment Appeal Tribunal does not rehear factual disputes or reassess witness credibility. A perversity challenge requires an overwhelming case that no reasonable tribunal could have reached the decision. Issues concerning the material effect of new evidence are ordinarily for the Employment Tribunal. Permission for a further appeal may be refused where the case raises no important point of principle or practice and there is no other compelling reason for the appeal.

The Claimant appealed against an Employment Tribunal’s dismissal of her sex discrimination claim arising from her non-appointment to a post allegedly because of her pregnancy. The Tribunal had accepted the evidence of the interview panel members that they did not know she was pregnant. The Claimant subsequently sought a review based on alleged new evidence, criticisms of the hearing and later events concerning one witness. The Tribunal heard the application and refused to vary its decision. It also awarded the Respondent £3,000 in costs.

Earlier sift and rule 3(10) decisions found no arguable error of law. The issue before the Employment Appeal Tribunal was whether the review decision, the costs order or the underlying factual conclusion disclosed an arguable legal error.

1. The rule 3(10) application was dismissed. The appeal would proceed no further. The Employment Tribunal had held a full review hearing, correctly addressed the relevant gateways under the 2004 rules and considered the Claimant’s criticisms of the hearing and the evidence.
2. Under rule 36(1), a review application must be considered by a full Tribunal unless a Judge has decided on paper that it has no reasonable prospects. The hearing that took place therefore constituted the required review, although the formal order should have stated that the review application was granted before the original order was considered for variation.
3. The Tribunal was entitled to conclude that the material relied upon was either already available or would not have a material bearing on the original decision. The assessment of that material was particularly one for the Tribunal that had heard the evidence. The Employment Appeal Tribunal does not substitute its own view on credibility or factual weight.
4. The later dismissal of a witness was not materially relevant to whether that witness had been believed on the evidence at the original hearing. The factual conflict remained one for the Employment Tribunal to resolve.
5. The threshold for perversity was not met. The decision was one reasonably open to the Tribunal and did not amount to a conclusion which no reasonable tribunal could reach. The costs order was also open to the Tribunal, which had directed itself by reference to the unreasonable conduct identified in Daleside Nursing Home Limited v Mrs Mathew UKEAT/5019/08/RN and appropriately capped the award at £3,000.
6. Permission to appeal was refused. Applying the approach stated in North Glamorgan NHS Trust v Ezsias, Fosh v Cardiff University [2009] EWCA Civ 38, Akintola v Capita Symonds Limited [2009] EWCA Civ 1425 and Mitchell v Barratt Homes Limited (Leeds) Limited [2010] EWCA Civ 22, there was no important point of principle or practice and no compelling reason for a further appeal.

• Employment Tribunal: dismissed the pregnancy-related sex discrimination claim after a four-day hearing. On review, it refused to vary its decision and awarded the Respondent £3,000 in costs.
• Employment Appeal Tribunal: earlier sift and rule 3(10) applications disclosed no arguable error of law. The present rule 3(10) application was dismissed.
• Employment Appeal Tribunal: permission for a further appeal was refused.