Forshaw v Virgin Atlantic Airways Limited

An appellate tribunal may not revisit an Employment Tribunal’s findings of fact merely because the appellant advances competing evidential inferences. A perversity challenge succeeds only in the exceptional case where no reasonable tribunal, properly directing itself on the evidence and law, could have reached the decision.

A misstatement of the discrimination burden of proof does not require intervention where it did not form part of the tribunal’s operative reasoning. Burden provisions assist where material facts, especially motivation, remain uncertain; they do not affect a decision founded on positive factual findings.

The claimant appealed against an Employment Tribunal’s dismissal of her claims for wrongful dismissal and discrimination arising from disability under section 15 of the Equality Act 2010. The Tribunal had found that she had taken and retained £1,000 received from a customer, and that her dismissal for gross misconduct was justified.

It also found that her conduct did not arise from the consequences of her depression and that the relevant decision-makers did not know, and could not reasonably have known, that disability affected that conduct. The appeal alleged failures to consider relevant evidence and an error in the Tribunal’s statement of the burden of proof.

1. Appeal dismissed. The Employment Tribunal’s conclusions on wrongful dismissal and discrimination arising from disability disclosed no error of law.

2. The appellant’s complaints about the reliability of evidence, alternative explanations for the missing money, alleged procedural defects, and the weight to be given to medical material were challenges to findings of fact. They did not establish that the Tribunal had overlooked relevant evidence or reached a conclusion it could not reasonably reach. Material not apparent from the Tribunal’s reasons had not been brought before the Appeal Tribunal under the procedure directed for that purpose.

3. The Tribunal had made sustainable positive findings that the appellant’s conduct was not caused by, or something arising in consequence of, her disability. It was also entitled to find that knowledge of depression in the preceding year did not establish actual or constructive knowledge that disability affected the conduct under investigation.

4. The Tribunal’s statement that a claimant had to show the reason for differential treatment before the burden shifted was inaccurate. But it concerned the unappealed section 13 claim and did not form part of the operative reasoning. The section 15 claim was decided on positive factual findings. Following Martin and Hewage, burden-of-proof provisions do not assist where the tribunal can determine the relevant facts directly on the evidence.

5. Under section 21 of the Employment Tribunals Act, the Appeal Tribunal determines questions of law only. Applying the stringent perversity standard in Yeboah, the appeal was not capable of succeeding.

• Employment Appeal Tribunal: Appeal dismissed: [2022] EAT 123.
• Employment Tribunal: Claims for wrongful dismissal, unfair dismissal, direct disability discrimination and discrimination arising from disability were dismissed. No citation is stated in the judgment.