The claimant was diagnosed with kidney cancer and was subsequently off on sick leave for a long period.   He regularly attended occupational health appointments and in October 2015 he raised issues with working with chemicals.  Occupational health made contact with the claimant’s consultant who stated there were no chemicals in the workplace that meant the claimant’s duties had to be restricted.   He was given various redeployment opportunities, but never availed of them.  As a result of the refusal to return to work, the claimant was dismissed from his employment.  He brought a claim based upon unfair dismissal and disability discrimination, but this was dismissed by the Industrial Tribunal.  The claimant appealed to the Court of Appeal.

The basis of the appeal was that the Tribunal had conducted the proceedings unfairly and had violated the claimant’s right to a fair trial.   There was mention to the case of Veitch v Red Sky Group, yet McCloskey LJ outlined that it was a ‘fact sensitive decision’ based upon whether a claimant was suffering from a disability and it determined no issue of law.  Therefore, it was deemed to add nothing to the appeal.  The appellant also argued that the decision was ‘manifestly erroneous.’  There was reference to the decision in Nesbitt v The Pallett Centre which outlined the narrow boundaries upon which the appellate court can upset the conclusions of the Tribunal.  It will only do so where there is no sufficient evidence to find the conclusions or the primary facts do not justify any inference made, but lead ‘irresistibly’ to the opposite conclusion.  Accordingly, there is a high threshold to be overcome before the appellate court would entertain the notion of disturbing the factual conclusions reached by the Tribunal.

After considering the high threshold, the appeal court turned to the evidence considered by the Tribunal.   This went through the medical evidence and how the respondent had dealt with those issues. There is no need to rehash them here, but it was found that the evidence when objectively and fairly analysed provided no support for the appellant’s case but rather pointed in favour of the respondents.  Accordingly, the appeal was dismissed.

Practical Lessons

This case reiterates the distinction to be drawn between the Industrial Tribunal as a first-instance body compared to the Court of Appeal, which is an appellate body.  The appellate court is there to determine questions of law and will not re-hear cases in substance.  McCloskey LJ made it clear that the threshold is elevated when it comes to upsetting the conclusions of the Tribunal.  This should be considered when parties are thinking of making an appeal and they should be cognisant that the appeal should be based upon questions of law rather than factual issues which are unlikely to be opened up by the Court of Appeal.
https://www.judiciaryni.uk/judicial-decisions/2021-nica-9

A review of the Industrial Tribunal case is available here.