Ali v Washwood Heath Technology College & Ors

An appeal from an Employment Tribunal lies only on an error of law. The Employment Appeal Tribunal and Court of Appeal do not re-try factual issues, and perversity is an exceptional route subject to a heavy burden. A point not raised before the EAT cannot ordinarily be introduced in the Court of Appeal. If the EAT misunderstood what had been argued, the proper remedy is to ask that tribunal to address the omission. Permission may also be refused where, even assuming jurisdiction, the tribunal’s findings show that the alleged conduct could not have affected the outcome. Procedural complaints require an identifiable irregularity or disadvantage. The renewed application was therefore refused.

The applicant, formerly business manager of the respondent college, brought claims alleging race discrimination, detriments and unfair dismissal arising from protected disclosures, victimisation and various money claims. Following a nine-day hearing, the Employment Tribunal dismissed the substantive claims, allowing only minor money claims, and refused a review.

The Employment Appeal Tribunal dismissed the appeal after a preliminary hearing. Permission to appeal was refused on paper by Lewison LJ. On renewal, the applicant alleged errors concerning post-dismissal disclosures, evidential restrictions, allegedly manufactured documents, factual findings and the fairness of an internal appeal panel. The central issue was whether any ground disclosed an arguable error of law.

Renewed application refused. The applicant had not identified any arguable error of law in the Employment Appeal Tribunal’s decision.

1. An appeal from an Employment Tribunal to the EAT, and from the EAT to the Court of Appeal, lies only on an error of law. Appellate courts do not reconsider factual findings. Perversity is an exceptional route and requires a very heavy burden, rarely discharged.
2. The post-dismissal disclosure jurisdiction point was not raised as a ground of appeal before the EAT. It could not therefore be raised in the Court of Appeal. If it had been argued but misunderstood by the EAT, the omission was not itself an error of law; the proper course was to ask the EAT to address the point. In any event, the Employment Tribunal’s findings showed that the disclosures had no connection with, and could not have affected, the disciplinary appeal outcome.
3. Woodward v Abbey National concerned detriment arising from a protected disclosure made during employment. It did not support the applicant’s different proposition concerning a disclosure first made after termination. The possibility of a remedy in that situation had been left open. [2006] EWCA Civ 822
4. The complaints about alleged manufactured documents and factual findings were impermissible attempts to reargue the evidence. The alleged departure from the case-management direction caused no substantive disadvantage and involved no procedural irregularity.
5. The complaint about the composition of the internal appeal panel had not been raised before the EAT. In any event, the Employment Tribunal’s conclusion that the proceedings were fair disclosed no seriously arguable error of law or perversity.

1. Court of Appeal (Civil Division): On renewed application, Rimer LJ refused permission to appeal.
2. Employment Appeal Tribunal: The appeal, numbered UKEAT/0107/13/DM, was dismissed after a preliminary hearing because no sufficiently arguable error of law had been identified.
3. Employment Tribunal: The substantive claims were dismissed following a nine-day hearing, save for minor money claims of approximately £6,000. An application for review was refused.