Ashman v Sainsburys Supermarkets Ltd

A perversity appeal is not a rehearing on the facts. The appellate tribunal must respect findings made by the Employment Tribunal, which heard the evidence first-hand, and may interfere only where an overwhelming case shows that no reasonable tribunal could have reached the decision on a proper appreciation of the evidence and law.

An Employment Tribunal may make secondary findings and draw inferences from primary facts. A conclusion remains immune from appellate intervention where it is permissible on the evidence, even if the appellate tribunal might have reached a different view. In assessing compensation for unfair dismissal, the Tribunal may consider the hypothetical outcome and the employee’s failure to co-operate with obtaining relevant medical evidence.

The Claimant appealed from a decision of the London (Central) Employment Tribunal following a four-day hearing. The Tribunal found that her dismissal was technically unfair because there was no genuine redundancy situation, but held that she would have been dismissed on capability grounds by 25 February 2008 and therefore made no compensatory award. It made a basic award.

The appeal challenged findings concerning the Claimant’s likely consent to medical examination and disclosure of medical records, the Tribunal’s assessment of the likely medical advice, and its conclusion that dismissal for capability was inevitable. The central issue was whether those findings were perverse.

1. Appeal dismissed. The Employment Tribunal had been entitled to find that the Claimant would not have consented to a full medical examination or disclosure of all relevant medical records. She had repeatedly refused unrestricted consent and had not advanced evidence that she would have provided it.

2. The Tribunal’s conclusion about the likely effect of further medical advice was a proper inference from the evidence, rather than impermissible speculation. Occupational Health had indicated that proper advice could not be given without full access to the records, and the Claimant had not produced contrary medical evidence.

3. Applying the approach in Yeboah v Crofton [2002] IRLR 634, a perversity appeal is confined to a question of law and must not become a factual rehearing. The appellate tribunal must recognise that the first-instance Tribunal saw and heard the witnesses. Intervention is justified only where an overwhelming case establishes that no reasonable tribunal, properly applying the evidence and law, could have reached the challenged conclusion.

4. The Employment Tribunal was entitled to draw inferences from the primary facts and to consider the totality of the evidence, including the Claimant’s limited capacity, the adjustments already made, the absence of suitable alternative work, and her unwillingness to provide unrestricted medical consent. There was ample evidence supporting the conclusion that dismissal on capability grounds would have occurred by February 2008. The finding that no compensatory award was payable therefore stood.

• Employment Tribunal, London (Central): On 10 February 2009, found the dismissal unfair because there was no genuine redundancy situation, made a basic award, rejected disability discrimination, and made no compensatory award because dismissal for capability would have been inevitable.
• Employment Appeal Tribunal: The appeal proceeded through the sift, a Rule 3(10) hearing, a preliminary hearing and the Burns/Barke procedure before being listed for a full hearing. The appeal was dismissed.