Taiwo v Department for Education

An appeal to the Employment Appeal Tribunal must identify an arguable error of law. Under section 21 of the Employment Tribunals Act, the Tribunal has no jurisdiction where no point of law arises.

A reasonable adjustment must be capable of alleviating the relevant substantial disadvantage. An employer could not reasonably be required to disclose an employee’s possible condition to colleagues without the employee’s authority, particularly where the tribunal found that disclosure would not lessen the disadvantage.

A direct sex-discrimination claim also fails where the proposed actual comparator was in materially different circumstances and there is no credible evidence that a hypothetical comparator of the opposite sex would have received different treatment.

The claimant, an administrative officer, brought claims of direct sex and race discrimination, disability-related harassment, and failures to make reasonable adjustments. He relied on sickle cell anaemia, a heart condition and Asperger’s Syndrome.

An Employment Tribunal dismissed every claim after extensive case management. It later refused a review. On the rule 3 sift, Recorder Luba QC held that the notices of appeal disclosed no reasonable grounds; Wilkie J similarly regarded them as an unarguable challenge to factual findings.

At this rule 3(10) hearing, the claimant pursued alleged errors concerning proposed adjustments to inform colleagues of Asperger’s Syndrome and to permit noise-cancelling headphones, as well as perversity, language used by the Tribunal, and direct sex discrimination. The central question was whether any ground disclosed a reasonably arguable error of law.

1. The rule 3(10) application and the underlying appeal were dismissed. The Tribunal found no ground with a reasonable prospect of success. The Employment Tribunal had dealt carefully and analytically with a complex set of allegations, and its conclusions disclosed no error of law.
2. Section 21 of the Employment Tribunals Act confines the Employment Appeal Tribunal’s jurisdiction to points of law. A notice of appeal cannot properly proceed merely by rehearsing disagreement with findings of fact or by asserting perversity where there was evidence on which the Employment Tribunal could reach its conclusions.
3. On adjustment 8, the Employment Tribunal had found that the claimant had not authorised disclosure of his possible Asperger’s Syndrome to colleagues. That finding was a complete answer to the contention that disclosure was a reasonable adjustment. In any event, the Tribunal had correctly asked whether disclosure would alleviate the relevant disadvantage. It found that the main difficulty concerned the claimant’s manager, who knew of the possible condition, and doubted that informing others would alter the environment or lessen the effect.
4. On adjustment 9, the factual finding was that the claimant had been allowed to wear his own noise-cancelling headphones. The remaining request, to wear them continuously, was found infeasible and not capable of preventing the relevant disadvantage. That evaluative conclusion disclosed no arguable legal error.
5. The direct sex-discrimination claim was also properly dismissed. The actual comparator had different impairments and circumstances. There was no credible evidence that a woman with the claimant’s relevant circumstances and impairments would have been treated differently, or that any treatment was because of sex.

• Employment Appeal Tribunal: Rule 3(10) application dismissed and the underlying appeal dismissed.
• Employment Tribunal: After hearings in September 2011, the Tribunal dismissed claims of sex discrimination, race discrimination, disability-related harassment and failure to make reasonable adjustments. It subsequently refused a review.
• Employment Appeal Tribunal sift: Recorder Luba QC concluded that the appeal disclosed no reasonable grounds. Wilkie J reached the same conclusion on a further notice of appeal.