Nunn v Royal Mail Group Ltd

An appellate court should not retry factual disputes determined by an employment tribunal. It may interfere only where the tribunal’s findings were perverse or resulted from an arguable error of law. An allegation of victimisation will not raise an appealable legal issue merely because the tribunal rejected an alleged employer’s knowledge of protected proceedings; that issue may be one of fact supported by evidence. Sympathy for an employee’s circumstances does not justify permission to appeal where the tribunal heard the evidence, assessed the witnesses and reached conclusions open to it.

Mr Nunn, a Royal Mail manager, was disciplined, demoted and later dismissed after refusing to accept the demotion. An employment tribunal dismissed his claim for unfair dismissal, rejecting his allegation that the dismissal was victimisation for bringing unlawful deduction of wages proceedings. The tribunal found that the relevant manager had been unaware of those proceedings and concluded that both disciplinary processes were fair.

The Employment Appeal Tribunal dismissed Mr Nunn’s appeal: UKEAT/053009DM. After an earlier refusal of permission on paper, the Court of Appeal considered a renewed application. The central question was whether the proposed grounds disclosed an arguable error of law or perversity in the tribunal’s findings.

The renewed application for permission to appeal was refused.

1. The Court of Appeal was not entitled to interfere with the employment tribunal’s findings of fact merely because another view of the evidence might have been possible. The tribunal had heard and seen the witnesses, assessed their truthfulness and reliability, and had evidence which it was entitled to accept. The findings were not perverse.

2. The victimisation grounds were hopeless. Mr Nunn’s case depended on a finding that Mr Willis knew that he had brought tribunal proceedings for recovery of unlawfully deducted wages. The proximity between the grievance decision, settlement of those claims and the later disciplinary summons gave the argument potential force, but the issue remained one of fact. It was not a matter for interference by the Employment Appeal Tribunal or the Court of Appeal where the employment tribunal had reached a permissible conclusion on the evidence.

3. The possible argument that the original demotion was in breach of contract appeared capable of affecting the fairness of a dismissal for refusing to accept it. The point was explored because Mr Nunn’s counsel said that the wage claims had been conceded. However, the allegation that the demotion was unlawful was withdrawn, and the new point had nothing in it.

4. The remaining submissions alleged perversity. The employment tribunal had considered the earlier disciplinary proceedings, the evidence and the sanction, and had concluded that the dismissal fell within the band of reasonable responses. There was no arguable error of law capable of founding an appeal.

• Court of Appeal (Civil Division) — The renewed application for permission to appeal was refused.
• Court of Appeal (Civil Division) — Mummery LJ had previously refused permission on paper because the grounds raised factual questions rather than questions of law.
• Employment Appeal Tribunal — The appeal from the employment tribunal was dismissed: UKEAT/053009DM.
• Employment Tribunal — Mr Nunn’s claim for unfair dismissal was dismissed.