R v W (Practice and Procedure: Appellate jurisdiction/Reasons/Burns-Barke)

An appellate tribunal should not disturb an Employment Tribunal’s factual findings merely because another view of the evidence is possible. It must assess alleged apparent bias through the fair-minded and informed observer. Permissible findings, adequately explained when the reasons are read as a whole, do not establish bias or perversity.

A reasonable-adjustments claim under sections 20 and 21 of the Equality Act 2010 requires an identified provision, criterion or practice and substantial disadvantage. Where neither is established, the claim fails. A constructive-dismissal challenge also fails where the primary finding of no contractual breach is unchallenged.

The Claimant, a disabled solicitor employed by the Respondent, resigned following a prolonged absence and disputes concerning workplace complaints, communications, adjustments and an investigation. The Cardiff Employment Tribunal dismissed her claims for disability discrimination, harassment, victimisation and unfair dismissal.

She appealed on grounds of actual or apparent bias, perversity, inadequate reasons, alleged errors in the approach to disability-discrimination claims, and constructive dismissal under section 95(1)(c) of the Employment Rights Act 1996. The central issue was whether the Tribunal’s adverse factual findings and legal conclusions disclosed an error of law.

1. Appeal dismissed. The Employment Tribunal’s factual conclusions were permissible on the evidence. The Employment Appeal Tribunal could not re-try the case or substitute its own factual assessment merely because the Claimant disputed the Tribunal’s view.

2. Applying the apparent-bias test in Porter v Magill, the Tribunal’s intervention concerning the Respondent’s reasonable-adjustments policy was proper. It was entitled to test the evidence and to use the policy when assessing the parties’ general cases and credibility. A fair-minded and informed observer would not find a real possibility of bias.

3. The challenged findings concerning the Claimant’s complaints, confidentiality requests, records of meetings, and interpretation of communications were supported by evidence or permissible inferences. The Tribunal’s descriptions of accounts as embellished did not necessarily impute deliberate dishonesty. Its reasons, read as a whole, adequately explained why the claims failed and disclosed no error of law.

4. For the reasonable-adjustments claim under sections 20 and 21 of the Equality Act 2010, no arguable provision, criterion or practice was identified after the factual findings were upheld. The Tribunal had also found that the Claimant suffered no substantial disadvantage. The statutory duty therefore did not arise.

5. The Tribunal was entitled to find that an invitation to participate in an investigation was not unfavourable treatment. On constructive dismissal, the primary finding was that the Respondent had committed no contractual breach. As that finding was not challenged, the appeal ground concerning delay or affirmation could not affect the result.

• Employment Appeal Tribunal: appeal dismissed: [2016] UKEAT 0198_15_2701.
• Cardiff Employment Tribunal: dismissed claims for disability discrimination, harassment, victimisation and unfair dismissal. Its written judgment was sent to the parties on 31 March 2015.