Symonds (t/a Symonds Solicitors) v Redmond-Ord

An Employment Tribunal is ordinarily the primary fact-finder. However, it errs in law where it makes a material finding unsupported by evidence, including a finding contrary to the agreed evidence. Where that error is central to the Tribunal’s assessment of conflicting evidence and its conclusion on constructive unfair dismissal, the appellate tribunal should allow the appeal and remit the case for a full rehearing before a fresh Tribunal.

The Respondent appealed against findings that the Claimant had been constructively unfairly dismissed and the resulting compensation award of £6,099.57. The Employment Tribunal preferred the Claimant’s account of a meeting at which she discussed prospective voluntary work in Nepal. The Respondent accepted that Nepal had been mentioned, but disputed that firm travel dates had been given. The appeal concerned whether the Tribunal had made a material finding contrary to the agreed evidence, and whether that error affected its resolution of the central factual conflict and its conclusion.

1. The appeal was allowed. Questions of fact are for the Employment Tribunal, but it commits an error of law by making a material finding unsupported by evidence: Piggott Brothers Ltd v Jackson [1992] ICR 85, 92D.
2. A finding made contrary to the agreed evidence necessarily falls within that category. The evidence and pleadings showed that there was no dispute that the Claimant had mentioned the possibility of going to Nepal at the restaurant meeting. The dispute concerned whether she had made firm plans or provided dates.
3. The Employment Tribunal nevertheless treated the Respondent as having denied that Nepal had been mentioned and relied on an alleged change in his account when preferring the Claimant’s evidence. That finding was contrary to the agreed evidence.
4. The error was not peripheral. It was central to the Tribunal’s fact-finding, its resolution of the evidential conflict, the finding of constructive unfair dismissal and the remedy judgment.
5. Following the guidance in Piggott Brothers Ltd v Jackson, the matter was remitted to the Employment Tribunal for a full rehearing before a fresh Tribunal.

• Employment Tribunal: upheld the constructive unfair dismissal complaint on 15 October 2010; Reasons promulgated on 1 November 2010; compensation of £6,099.57 awarded on 3 December 2010.
• Employment Appeal Tribunal: allowed the appeal and remitted the matter for a full rehearing before a fresh Tribunal.