Rowe v West Yorkshire Probation Trust

Permission to appeal should be refused where the proposed appeal merely challenges factual findings and the tribunal’s evaluation of disputed evidence, unless a genuine error of law or another compelling reason is shown. Technical imperfections in an employment tribunal’s reasons do not justify an appeal where the tribunal addressed the complaints, considered the evidence, and reached findings that were open to it. An appellate court does not retry credibility disputes or substitute its view of the facts for that of the tribunal. A compelling reason cannot support permission where the appeal has no reasonable prospect of success.

The applicant brought numerous claims against her employer, including direct discrimination, victimisation, harassment, failure to make reasonable adjustments, breach of human rights and health and safety complaints. The Employment Tribunal rejected all the complaints after a nine-day hearing, preferring the respondent’s witnesses and finding that the applicant’s race and medical condition had not led to discrimination.

The Employment Appeal Tribunal, at a rule 3(10) hearing, dismissed the appeal on 4 February 2015, finding no question of law with a reasonable prospect of success. Permission to appeal was refused on the papers by Kitchin LJ. The applicant renewed her application, alleging inadequate identification of her race, disability and comparators, inadequate analysis, and relying on fresh evidence. The central issue was whether the proposed appeal had a reasonable prospect of success or there was another compelling reason for it to be heard.

Application refused. Lord Justice Burnett held that the applicant’s challenge was essentially factual rather than legal.

1. The Employment Tribunal had addressed the numerous complaints and considered the evidence heard during the nine-day hearing. Although its reasons had technical deficiencies, it set out detailed factual findings, including the competing accounts, and explained that it preferred the respondent’s witnesses.
2. The tribunal had not expressly identified the applicant’s race, and its reference to a comparator did not materially assist her. Nevertheless, it recited the statutory provisions applicable to the complaints and included occupational health evidence identifying her depression, stress and anxiety. The criticisms therefore did not undermine the tribunal’s substantive findings.
3. The Court of Appeal would not retry the factual disputes or interfere with findings based on credibility merely because the applicant maintained that her account was accurate or disputed the evidence of her colleagues. The tribunal was entitled to conclude that the Probation Trust had acted appropriately and that neither race nor the applicant’s medical condition had caused discrimination.
4. There was no reasonable prospect that an appeal would succeed. Nor was there any separate compelling reason for the appeal to be heard. The renewed application for permission to appeal was dismissed.

• Employment Tribunal: After a nine-day hearing, the tribunal rejected the applicant’s discrimination, victimisation, harassment, reasonable-adjustments and related complaints in a reserved judgment given on 12 September 2013.
• Employment Appeal Tribunal: At a rule 3(10) hearing, His Honour Judge Shanks concluded on 4 February 2015 that no question of law had a reasonable prospect of success and directed that no further action be taken; the appeal was dismissed.
• Court of Appeal (Civil Division): Kitchin LJ refused permission on the papers. Lord Justice Burnett dismissed the renewed application for permission to appeal on 8 March 2016.