Taiwo v Department for Education

LORD JUSTICE AIKENS: This is a renewed application for permission to appeal following a refusal to grant permission by Lewison LJ, who considered the papers and issued his decision to refuse permission on 31 December 2014.

The case concerns the Applicant, Mr Taiwo, who was employed by the Respondent, the Department of Education, for a period of very nearly 10 years from September 2002 to July 2012. On 30 July 2012 the Applicant presented claims for disability discrimination and unfair dismissal to the London (Central) Employment Tribunal.

The claims were resisted and they came on for a hearing on the issue of liability before a Tribunal chaired by Employment Judge Auerbach in May 2013. There was a long hearing before the Tribunal and eventually they gave their judgment and reasons on 12 August 2013. The judgment runs to some 60 pages in all and is extremely detailed on the issues of liability.

The disability claims were dismissed. The unfair dismissal claim succeeded to a limited extent. The Tribunal found that there had been unfairness relating to the Respondent's handling of the Claimant's grievance. However, the Tribunal went on to hold that even if a fair procedure had been adopted, there would have inevitably been dismissal of the Applicant and that would have been a fair dismissal.

The consequence of that conclusion is that there could be no compensatory award for the unfair dismissal that was found. The Tribunal also concluded that the Applicant had contributed to his dismissal by his own conduct and the extent of that contribution was 60 per cent. That meant that the basic award made would have to be reduced by 60 per cent. There was an appeal against that liability judgment with which I am not concerned.

There followed a "remedy" hearing before Judge Auerbach in January 2014. That was necessary because the Applicant claimed he was entitled to the remedy of either reinstatement or re-engagement in his employment. The Tribunal rejected that claim for reasons that were given on 31 January 2014.

Effectively the Tribunal found that, on the facts of this case, there had been a fundamental breakdown in relations between the Applicant and the Respondent. The Tribunal concluded that it was not practicable for the Respondent to comply with an order for reinstatement or re-engagement. The Tribunal also took into account the fact that, as they had found at the liability hearing, the Applicant had contributed to his dismissal to the extent of 60 per cent.

Thus, applying the law as laid down in section 116(1) of the Employment Rights Act 1996, the Tribunal concluded that, on balance, it should not make an order for reinstatement or for re-engagement.

The orders of the Tribunal were, therefore, to give a basic award of £2,150 (which was 40 per cent of what otherwise would have been ordered given the 60 per cent contribution finding that had already been made), and there was otherwise a dismissal of the other claims for remedy.

The Applicant was dissatisfied with this conclusion and he sought to appeal it. That application could only be, under the statute, on a point of law. That application was rejected by Her Honour Judge Eady on paper and it was rejected when there was a renewed oral application before His Honour Judge Peter Clarke on 22 October 2014.

That has led to the application today by the Applicant, who appears in person. The Applicant has relied on the written materials that have been before the various tribunals, including this court, in support of his application.

He has also drawn my attention (quite rightly) to the fact that he suffers from disabilities. He points out that, as a person who suffers from Asperger's syndrome, sickle cell anaemia and who has suffered a stroke, his ability to react with other people in the world is different from those who do not have those disabilities. He drew my attention to various reports by medical teams who have been looking after him, in particular since January 2011 after he suffered a stroke and was for a time in a medical condition that was life threatening.

The Applicant submits this morning that these factors were not taken sufficiently into account by either the Employment Tribunal or, he submits, by the judges who considered his applications for permission to appeal the judgment of the Employment Tribunal.

I am afraid that I cannot grant permission to appeal in this case. The reason for that is that the law states very clearly that this court, as with the Employment Appeal Tribunal, can only consider an appeal on a point of law. It cannot look at the facts again, nor can it look at the assessment of the facts by the Tribunal below unless it is so clear that the treatment of facts is so wrong such as itself to amount to an error of law.

As Lewison LJ pointed out when he gave his reasons in December of last year, it is quite clear that the Employment Tribunal did look at the facts with a great deal of care both in the "liability" judgment and in the "remedy" judgment. The Employment Tribunal considered carefully whether there had been a breakdown in the relationship not with the line manager alone, but with the employer. There was credible evidence on this aspect. That was a matter of fact for the Employment Tribunal. The Employment Tribunal did consider the medical evidence at both the liability and the remedies stage and it cannot be said that that evidence was ignored. The Tribunal considered the Applicant's disability.

There is no foundation for a submission that there was some kind of bias on the part of the Employment Tribunal based on the materials that I have seen. Accordingly, there is no basis upon which this court can interfere. I am also equally satisfied, as was Judge Peter Clark, that there is no question of there being a point of law on whether the Applicant had a fair hearing at the remedy stage. It is clear to my mind that he did. Therefore, I have to reject the application.

There is a further application on the part of the Applicant this morning which is that this court should make an order for the return of various personal belongings which he says his former employers have wrongfully retained. Unfortunately, I cannot make any order with regard to that matter because it is outside the power of this court to do so in the context of this current proceeding. However, like Lewison LJ, I note what the Applicant has said and if it be the fact that the Respondents have retained the Applicant's personal belongings that he has identified, then the Department should return them to him as soon as possible.

I hope that what I have said in court this morning can be relayed to the Department through the Applicant and that he will be able to obtain such personal belongings of his as are retained by the Department of Education as soon as possible.