Igbinake v Clarkson House Resident Care Home (t/a The Vicarage Residential Care Home)

The Employment Appeal Tribunal may intervene only for an error of law. A perversity appeal must meet the high threshold identified in [2002] IRLR 634; it cannot be used to re-argue factual findings.

An Employment Tribunal may draw an evidential inference from an omission in a witness statement without creating a procedural irregularity. A finding that an individual was bank staff does not conflict with an agreed finding that she was an employee. Differential treatment of bank staff and permanent staff is not direct race discrimination where the claimant was treated in the same way as bank staff of every race.

The claimant appealed against an Employment Tribunal judgment concerning direct race discrimination, constructive unfair dismissal, holiday pay and failure to provide a written statement of employment particulars.

At an earlier hearing, the Employment Appeal Tribunal adjourned the appeal so that the Tribunal could provide full written reasons for reasons delivered orally on 11 July 2011. The full reasons, dated 5 September 2012, showed the basis on which the Tribunal had dismissed the discrimination and constructive dismissal claims and awarded four weeks' pay for failure to provide a statement of terms.

The appeal challenged the adequacy and consistency of the reasons, alleged perversity and procedural unfairness, and disputed the compatibility of employee status with bank-staff status.

1. Appeal dismissed. Once the full written reasons were obtained, they disclosed no error of law in the Tribunal's approach. The Tribunal was entitled to conclude that those reasons reflected the oral reasons given at the hearing; the earlier written reasons were shortened reasons supplied in response to a later request.

2. The perversity challenge failed. The high hurdle stated in Yeboah v Crofton, [2002] IRLR 634, was not approached. The challenge was in substance an impermissible attempt to re-argue the facts, whereas the Employment Appeal Tribunal's jurisdiction is confined to errors of law.

3. The Tribunal had dealt with the failure to provide written terms. It was common ground that the claimant was an employee and had received no statement. Its award of four weeks' pay under section 38 of the Employment Act 2002 was explained in the full reasons.

4. The Tribunal was entitled to reject the direct race discrimination complaint. It found that the claimant was bank staff. Bank staff of every race were denied holiday pay, whereas permanent staff received it. That finding supplied a non-discriminatory explanation for the differential treatment.

5. There was no procedural irregularity in the Tribunal observing that the claimant's witness statement did not say that she protested when told that she was bank staff. An omission in evidence was a proper matter for the Tribunal to assess. Nor was employee status inconsistent with bank-staff status. The status was agreed and, in any event, a person may be both an employee and bank staff.

6. The Respondent's costs application was permissible. After the full reasons were promulgated, the appeal had no reasonable prospect of success. Taking account of the claimant's limited means, the Tribunal ordered her to pay assessed costs of £150 within 28 days, rather than the £651.82 claimed.

• Employment Appeal Tribunal: appeal dismissed. An earlier EAT hearing on 28 June 2012 had adjourned the appeal for full written Employment Tribunal reasons.
• Employment Tribunal: dismissed the direct race discrimination and constructive unfair dismissal complaints, and awarded four weeks' pay under section 38 of the Employment Act 2002 and £1,000 holiday pay. No citation was stated.