D Ireland v University College London

An appellate tribunal may not disturb a clear factual finding of an employment tribunal unless it is perverse. A party’s disagreement with the evaluation of evidence, even where the appellate judge might have reached another view at first instance, does not establish an error of law.

A costs decision may nevertheless require a full appellate hearing where there is an arguable failure to consider material submissions and a cross-application for costs, or to explain why conduct was unreasonable.

The claimant, a white applicant for a fixed-term post, received a conditional offer from the respondent university. The offer was withdrawn after one referee declined to provide a reference and another gave an unfavourable reference. The London Central Employment Tribunal dismissed his race discrimination claim, finding that the withdrawal was caused by unsatisfactory references and not race.

The tribunal later ordered the claimant to pay £14,000 costs. It subsequently rejected his own costs application and declined recusal. The claimant brought Rule 3(10) applications in appeals against the liability decision and the two costs decisions.

1. The Rule 3(10) applications succeeded in part. The challenge to the dismissal of the race discrimination claim disclosed no viable ground of appeal. The Employment Tribunal had made a clear factual finding that the decision-maker withdrew the offer because the references were unsatisfactory and that race played no part.

2. Findings of fact are for the Employment Tribunal. The Employment Appeal Tribunal may intervene only if a finding is perverse. The claimant’s points about the speed of the decision, the outstanding third reference, travel expenses, the interview panel and whether the decision-maker consulted others did not undermine the tribunal’s express finding as to her reason. The tribunal had proceeded on the basis that she was the decision-maker and accepted her evidence about what was in her mind.

3. The challenge to the costs award based on the alleged misconstruction of the deposit order was not viable. The deposit order had identified plausible reasons why race might have played no part, and the trial tribunal was entitled to regard continuation of the claim in that context as unreasonable.

4. However, the costs appeals should proceed to a full hearing. It was arguable that the tribunal had overlooked the claimant’s written submissions and cross-application for costs when treating aspects of his conduct as unreasonable. It was also arguable that the tribunal had not adequately addressed the reasons for his case-management applications. The claimant was given leave to amend his costs grounds to add an adjournment point, but could not rely on any asserted defect in the liability judgment.

• Employment Appeal Tribunal: Rule 3(10) applications determined. The liability challenge was rejected, while the appeals concerning costs were allowed to proceed to a full hearing.

• London Central Employment Tribunal: Dismissed the race discrimination claim on 25 March 2021; awarded the respondent £14,000 costs in a judgment sent on 27 June 2021; later rejected the claimant’s costs application and declined recusal on 28 January 2022.