Okekearu v London Borough of Camden

An appellate court hearing an appeal from an Employment Appeal Tribunal may interfere only for an error of law. It cannot revisit Employment Tribunal findings of fact, including credibility, evidential conflicts, knowledge or motive. A note recording a meeting does not itself create a binding agreement preventing escalation under a contractual performance procedure. Contract formation requires authority to make the alleged commitment and consideration supporting offer and acceptance. Where a victimisation ground depends on when a decision-maker knew of a protected act or what motivated the decision, those are factual questions for the Employment Tribunal. Permission should be refused where the proposed legal ground has no real prospect of success and the remaining grounds challenge only factual findings.

Ms Okekearu applied to the Court of Appeal for permission to appeal against the Employment Appeal Tribunal’s dismissal of her appeal from an Employment Tribunal decision. She argued that a note of a workplace meeting created a binding agreement preventing escalation of the underperformance procedure, and that the Employment Tribunal had wrongly assessed evidence concerning her performance, alleged dishonesty, and victimisation following a complaint to ACAS.

The central question was whether any proposed ground disclosed an error of law capable of justifying appellate intervention, rather than merely disagreement with factual findings.

1. Permission refused. The proposed appeal had no real prospect of success. The Employment Appeal Tribunal could interfere with the Employment Tribunal only for an error of law. This court could likewise interfere with the Employment Appeal Tribunal only for an error of law.
2. The note of the August meeting did not establish a binding agreement that the underperformance procedure could not progress to Stage 3. There was no sufficient reason to suppose that the employees who attended the meeting had authority to vary Camden’s contractual disciplinary and underperformance process. The recording of the meeting’s outcome was insufficient to create such a contractual restriction. In addition, no consideration was identified to support a contract formed by offer and acceptance.
3. The arguments that the respondent and its witnesses had lied, that relevant information was already known earlier, that targets had been misstated, and that removal of cases made the targets impossible to meet all challenged the Employment Tribunal’s factual conclusions. Questions of credibility, evidential weight and factual inference fell within the Employment Tribunal’s competence and could not be reopened by either appellate tribunal merely because the conclusions might be right or wrong.
4. The victimisation argument likewise depended on the evidence concerning when Ms West knew of the complaint to ACAS and whether that protected act influenced the decision. The Employment Tribunal had considered the conflicting accounts and found that Ms West was not aware of the protected act when she refused postponement. That was a factual finding, recorded and repeated in its decision, and disclosed no appealable error of law.
5. The court also noted the delay between receipt of the Employment Appeal Tribunal’s judgment and filing the appellant’s notice. Although part of the delay was explained, the later period was not. In any event, the absence of a real prospect of success was sufficient. Permission to appeal was refused.

1. Court of Appeal (Civil Division): Permission to appeal refused.
2. Employment Appeal Tribunal: Appeal dismissed in February 2016.
3. Employment Tribunal: Underlying decision challenged by Ms Okekearu before the Employment Appeal Tribunal.