JJ Food Service Ltd v Zulhayir

An appellate tribunal must not substitute its own view for an employment tribunal’s decision on a perversity appeal. Intervention requires an overwhelming case that no reasonable tribunal could have reached the decision on a proper appreciation of the evidence and law.

Where the parties have narrowed a claim to a single issue, the tribunal’s decision on that issue may dispose of the claim. An appellate tribunal should not decide an untried issue instead.

The fairness of a dismissal must be assessed by reference to the actual dismissal. An earlier enquiry about whether an absent employee had resigned is not relevant procedural conduct where no dismissal was then attempted.

The Watford Employment Tribunal dismissed claims for unfair dismissal and disability discrimination. The parties had narrowed the disability claim to whether the employer had offered an alternative transport administrator role. The tribunal found that it had. On unfair dismissal, it found that the employer had reasonably informed itself about the employee’s medical position and had reasonably consulted him through an intermediary.

The Employment Appeal Tribunal, in UKEAT/0275/12/RN, allowed the employee’s perversity appeal, declared the dismissal unfair and the failure to offer alternative employment discriminatory, and remitted the claims for a remedy hearing. The central issue before the Court of Appeal was whether the EAT had been entitled to interfere with the tribunal’s findings and to assess the 2009 dismissal by reference to matters arising in 2006.

The Court of Appeal unanimously allowed the appeal, set aside the relevant parts of the Employment Appeal Tribunal’s order and restored the Employment Tribunal’s judgment.

1. Disability discrimination. The parties had agreed that the sole issue was whether an office-based transport administrator role had been offered. The Employment Tribunal found that it had been offered as a reasonable adjustment. That finding disposed of the claim. The EAT did not identify the finding as perverse, but instead considered whether an offer made in 2009 would have been accepted. That was an issue not tried before the Employment Tribunal, and it was not the EAT’s function to make findings on it.
2. Perversity. The applicable test was strict. As explained in Yeboah v Crofton [2002] EWCA Civ 794; [2002] IRLR 634 and Stewart v Cleveland Guest (Engineering) Ltd [1996] ICR 535, an appeal requires more than disagreement about the merits, justice or interpretation of facts. The Employment Tribunal’s findings that the employer had reasonably established the medical position and reasonably consulted the employee through Corpore were not challenged as perverse.
3. Unfair dismissal. The letter sent in June 2006 was an enquiry asking whether the employee’s prolonged silence meant that he had resigned. It was not, on its face, a dismissal, so it did not require a preceding meeting or an appeal. The EAT wrongly treated the employer’s failure to make further contact in 2006 as relevant to the fairness of a dismissal that occurred in 2009.
4. Effect of the correspondence. The court observed that an employer cannot unilaterally deem an employee to have resigned. If an employee received such a letter but did not answer and was then removed from the employer’s books, that might arguably amount to a dismissal. That hypothetical situation did not arise here. The 2006 letter was returned undelivered and had no effect. The employment ended only when the employer’s solicitors’ letter in May 2009 informed the employee that the employer no longer wished to be bound by the contract, which the employee accepted.

1. Court of Appeal (Civil Division). Unanimously allowed the employer’s appeal and restored the Employment Tribunal’s dismissal of both claims.
2. Employment Appeal Tribunal. In UKEAT/0275/12/RN, allowed the employee’s perversity appeal, declared the 2009 dismissal unfair and the failure to offer alternative employment discriminatory, and remitted the claims for a remedy hearing.
3. Watford Employment Tribunal. Following a hearing on 6 and 7 February 2012, dismissed the unfair dismissal and disability discrimination claims.