Takavarasha v London Borough Of Newham & Ors

An Employment Tribunal may answer a Burns/Barke question by correcting a mistaken premise and explaining the evidence and findings on which its reasons rested. That does not exceed the proper remit where it answers the question asked rather than advancing a new case.

An appeal fails where the clarified reasons show that the relevant issue was considered and disclose no error of law. In assessing costs, the starting point may be the actual costs incurred. A statutory assessment limit does not replace that figure, and limited means do not provide a complete answer to a costs application.

The claimant appealed from the Employment Tribunal’s dismissal of claims for race discrimination, victimisation, disability discrimination and unfair dismissal. The Tribunal had also ordered him to contribute £1,500 towards the respondents’ costs.

At a preliminary hearing, three of eight grounds were allowed to proceed. Two were the subject of Burns/Barke questions. They concerned the dismissing officer’s alleged involvement in earlier proceedings and whether an internal appeal conducted in the claimant’s absence had been considered as a separate discriminatory act. The remaining ground challenged the costs order.

The central issues were whether the Tribunal’s answers improperly exceeded the Burns/Barke procedure, whether its reasons disclosed an error of law, and whether its costs award was wrongly assessed.

1. Appeal dismissed. The Tribunal’s answers to the Burns/Barke questions removed the factual basis of the first two surviving grounds and disclosed no error of law.

2. On the Steel issue, the question had proceeded on the mistaken assumption that the claimant’s assertion that Mr Steel had given evidence in the earlier proceedings was unchallenged. The Tribunal was entitled to correct that premise by recording that Mr Steel had disputed it, that his evidence was accepted, and that its finding had informed the conclusion that the individual respondents were not influenced by the earlier proceedings. The answer explained the question asked and did not amount to impermissible advocacy or an excess of the Burns/Barke remit. The Appeal Tribunal declined to adjourn for live evidence where no such application had previously been made.

3. On the internal appeal issue, the Tribunal had recorded that the appeal formed part of the dismissal rather than a separate issue. In any event, its findings addressed the appeal and supported its conclusion that the dismissal was caused by absence rather than race or ethnicity.

4. The costs challenge also failed. The proper starting point was the respondents’ actual total costs, not the then limit for assessed costs. A claim described at case management stage as legally well conceived could nevertheless fail once the evidence had been heard. Although costs awards in Employment Tribunals remained exceptional, the claimant’s unemployment and limited means were not a complete answer. The reduced award of £1,500, reflecting earning potential, disclosed no error of law.

5. The Appeal Tribunal further ordered the claimant to pay the respondents’ appeal costs of £2,500 inclusive of VAT. After the Burns/Barke answers, the appeal had no reasonable prospect of success; the award also took account of his means and the outstanding costs liability below.

• Employment Appeal Tribunal: Appeal dismissed; costs of the appeal ordered against the claimant.
• Employment Tribunal: All discrimination and unfair-dismissal claims were dismissed. The claimant was ordered to contribute £1,500 towards the respondents’ costs.