Clarke v. Zurich UK General Services Ltd

An Employment Tribunal is entitled to resolve conflicting evidence and make findings of fact, including findings based on documentary material and recorded conversations. An appeal on the ground that the Tribunal misunderstood or failed to accept evidence raises no question of law unless the findings were perverse or inadequately explained. The Employment Appeal Tribunal may not re-weigh the evidence. Where the Tribunal has evidence supporting both competing accounts, its choice between them is a matter for the Tribunal, provided its conclusion is reasonably open to it.

The Claimant appealed from an Employment Tribunal’s dismissal of claims including unfair dismissal, discrimination and breach of contract. The Employment Tribunal had later ordered her to pay the Respondent’s costs. Following an earlier rule 3(10) decision, the remaining appeal concerned whether the Tribunal had misunderstood the evidence about the Claimant’s participation in the unlawful detention and questioning of a private investigator, or had failed adequately to explain its rejection of the evidence.

The central issue was whether the Employment Tribunal’s findings were legally defective or were findings of fact properly open to it on the evidence.

1. The appeal was dismissed. The Employment Tribunal was entitled to find that the Claimant had participated in, and had been present during, the detention and questioning of the private investigator.
2. The evidence was conflicting. Some documents supported the Claimant’s account, including an extract from a witness statement and a Crown Prosecution Service note. However, the Tribunal also had transcripts and file notes of recorded telephone conversations, together with other material capable of supporting the conclusion that the Claimant had participated.
3. The absence of the private investigator as a witness did not prevent the Tribunal from reaching findings on the material before it. The Tribunal was entitled to consider the Claimant’s admitted presence, her failure to take steps to end the detention, and what she said in the recorded conversations.
4. The Employment Appeal Tribunal accepted that the relevant documents had been before the Employment Tribunal and that the Tribunal had been entitled to regard them as accurate. Complaints that the Tribunal preferred one body of evidence to another sought to re-open factual findings and did not raise a point of law in the absence of perversity.
5. The finding that the Claimant’s conduct amounted to misconduct, and the related conclusion that the unfair dismissal claim was misconceived, were therefore conclusions which the Employment Tribunal was entitled to reach.

• Employment Tribunal: The Birmingham Employment Tribunal dismissed the Claimant’s claims of race and disability discrimination, unfair dismissal and breach of contract, and subsequently ordered her to pay the Respondent’s costs.
• Employment Appeal Tribunal: The remaining appeal concerning the factual findings relevant to costs was dismissed.