Chorley Borough Council v Andrews

An employment tribunal may infer that a dismissal was motivated by trade union activities from the cumulative effect of its factual findings. The evidence must provide a proper foundation for the inference, rather than amounting to speculation. An appellate tribunal should respect the trial tribunal’s evaluation of witness credibility and primary facts. It should resist converting an essentially factual challenge into an issue of law or substituting its own assessment merely because another conclusion might have been possible.

Mr Andrews, a market manager employed by Chorley Borough Council, was dismissed during a restructuring exercise. The Employment Tribunal found both that the dismissal was unfair and that it was because of his trade union activities. The Tribunal criticised the evidence concerning the selection process, the treatment of witnesses, the failure to identify a suitable alternative post, and the appeal procedure.

The Council appealed, arguing that there was no sufficient evidential basis for the finding concerning trade union activities and that the Employment Tribunal had failed to distinguish between sections 152 and 153. The Employment Appeal Tribunal considered whether the findings justified the inference and whether the decision was perverse.

1. Appeal dismissed. The Employment Tribunal was entitled to conclude that the dismissal was because of Mr Andrews’s trade union activities under section 152. Any failure to distinguish formally between sections 152 and 153 was immaterial because the Tribunal’s reasoning clearly addressed the actual reason for dismissal.
2. The inference was properly founded on cumulative findings. These included the evasive evidence of a key manager, gaps in the Council’s evidence, poor record keeping, a suspect selection procedure, the failure to offer consideration for the Market Co-ordinator post, an insufficiently probing appeal, and Mr Andrews’s earlier trade union activities. Taken together, those matters provided abundant evidence from which the Tribunal could draw the inference.
3. The distinction between inference and speculation was material. A tribunal may use common sense to draw an inference from particular facts, but it must have an evidential foundation rather than merely guess.
4. Appellate intervention in factual evaluation requires caution. Specific findings cannot fully express the impressions formed from primary evidence, including the relative weight and nuances of witness testimony. The appellate tribunal should not use narrow textual analysis to replace the trial tribunal’s assessment where the conclusion was reasonably open to it.
5. The conclusion was not perverse in the sense explained in Yeboah v Crofton [2002] IRLR 634. The Employment Tribunal was entitled to criticise witnesses and to conclude that relevant evidence and witnesses had not disclosed the real reason for dismissal.

• Employment Tribunal: found that Mr Andrews had been unfairly dismissed and that the dismissal was because of his trade union activities.
• Employment Appeal Tribunal: agreed that the findings supported the inference and dismissed the Council’s appeal.