Iteshi v British Telecommunications

An Employment Appeal Tribunal should interfere with an Employment Tribunal’s factual findings only where a clear error of law, perversity or inadequate reasoning is shown. A party’s disagreement with findings, restrictions on case management, or rejection of allegations does not establish bias.

Recusal depends on whether a fair-minded and informed observer would conclude that there was a real possibility of bias. Previous adverse decisions and unsuccessful appeals, without supporting evidence, are insufficient. In discrimination claims, a genuine recruitment freeze or a non-discriminatory assessment of relative qualifications may explain why an applicant was not progressed.

The claimant appealed against the London Central Employment Tribunal’s dismissal of his race and sex discrimination claims concerning applications for paralegal and employment-lawyer posts. The Tribunal found that a recruitment freeze had stopped recruitment to the first post and that the claimant had not met the relevant qualifications and experience requirements for the second.

At the hearing, the claimant applied for the EAT judge to recuse himself, alleging fraud and bias. The appeal also challenged the Tribunal’s factual findings, disclosure and case-management decisions, and the sufficiency of its reasons. The central issues were whether there were reasonable grounds for the appeal and whether recusal was required.

1. Recusal. The application for recusal was dismissed. Applying the principles in Porter v Magill [2002] AC 357 and Ansar v Lloyds [2007] IRLR 211, the claimant had produced no evidence capable of causing a reasonable, informed observer to doubt the judge’s objectivity. Previous adverse decisions and the fact that the claimant had brought numerous unsuccessful appeals did not establish bias.
2. Appeal jurisdiction and factual findings. Under section 21 of the Employment Tribunals Act 1996, the EAT had jurisdiction only in relation to a point of law. The appeal amounted principally to an attack on factual findings. The high threshold for such a challenge, reflected in Yeboah v Crofton [2002] IRLR 634, was not met. The Tribunal was entitled to accept the respondent’s witnesses and reject the claimant’s allegations that documents had been fabricated.
3. Discrimination claims. The Tribunal correctly applied the two-stage approach in Igen v Wong [2005] IRLR 258. It was entitled to accept the respondent’s explanation at the same time as considering whether the claimant had established facts from which discrimination could be inferred, consistently with Network Rail Infrastructure v Griffiths-Henry [2006] IRLR 865. The recruitment freeze explained the failure to progress any applicant for the paralegal role. For the employment-lawyer role, the Tribunal reasonably accepted that other candidates had stronger qualifications and relevant experience. The appeal disclosed no reasonable prospect of success.
4. Permission to appeal to the Court of Appeal was refused because the appeal had no prospect of success and there was no compelling reason for a further appeal.

• Employment Appeal Tribunal: dismissed the recusal application, rejected the appeal from the Employment Tribunal, and refused permission to appeal to the Court of Appeal.
• Employment Tribunal: dismissed the claimant’s race and sex discrimination claims concerning recruitment and shortlisting.