Woodhouse School v Webster

An employment tribunal may make findings of fact that do not precisely match either party’s formulation of the case. It may draw legitimate inferences from the totality of the evidence, provided that the findings are evidence-based and reached on the balance of probabilities.

There is generally no procedural unfairness where the parties have had a fair opportunity to address the substance of the evidence and there is no real possibility that further submissions would alter the outcome. An appellate court will not interfere merely because it would have assessed disputed evidence differently.

The employee, the School’s Head of Care and Registered Manager, resigned after a meeting concerning the continued employment of a deaf member of staff. He alleged that the School’s proprietor had instructed him to terminate that employee’s employment because of her disability. The School denied giving such an instruction and contended that he resigned because of concerns about his performance.

By a majority, the employment tribunal found that the proprietor had conveyed an instruction to dismiss the employee, although not in the express terms alleged. It held that the resignation amounted to constructive unfair dismissal. The Employment Appeal Tribunal dismissed the School’s appeal: UKEAT/0459/07/DM. The central issues were whether the tribunal’s inference was perverse and whether its procedure was unfair.

1. Appeal dismissed by a majority. Mummery LJ, with whom Sullivan LJ agreed, held that the employment tribunal had made no error of law in finding constructive dismissal. The Employment Appeal Tribunal was correct to dismiss the School’s appeal.

2. An employment tribunal is not confined to choosing exactly between the opposing factual cases. In an adversarial hearing, the evidence may establish that the truth lies between the parties’ polarised accounts. The tribunal must decide on the evidence before it, applying the balance of probabilities, and may draw inferences from primary facts that it finds proved.

3. The tribunal had evidence entitling it to infer that the employee resigned because the proprietor had made clear that he was expected to dismiss the deaf employee. That evidence included earlier discussions, the recorded statement about how not to employ her, discussion of the mechanics of termination, and the proprietor’s failure to correct the employee’s known understanding. The tribunal was entitled to reject performance concerns as the reason for the resignation. It was not required to find the precise words alleged by the employee.

4. There was no procedural injustice. Although it is normally good practice to raise a proposed interpretation of the evidence that differs from either party’s case, the School had a fair opportunity to challenge the underlying evidence. There was no real possibility that further submissions would have produced a different result.

5. Mummery LJ also gave obiter guidance on the exceptional Burns/Barke procedure. It permits the Employment Appeal Tribunal to seek clarification or supplementation of inadequate reasons, but does not permit an employment tribunal to advocate for or defend its decision.

6. Rimer LJ dissented. He considered that the majority tribunal had rejected the employee’s only case of an express instruction, then found an unsupported and inconsistent case of an implied instruction. In his view, the finding was perverse and the appeal should have been allowed.

• Court of Appeal (Civil Division) — dismissed the School’s appeal and affirmed the finding of constructive unfair dismissal: [2009] EWCA Civ 91.
• Employment Appeal Tribunal — dismissed the School’s appeal from the employment tribunal: UKEAT/0459/07/DM.
• Employment Tribunal — by a majority, held that the School had constructively unfairly dismissed the employee.