Ghosh v Hellmonds & Anor

An appeal from an employment tribunal lies only on a point of law. An employment tribunal must give coherent reasons, but it need not resolve every factual dispute or address every piece of evidence where its reasoning explains the result. Assessing witness credibility is ordinarily a matter for the tribunal of fact. A challenge based on perversity requires more than showing that a finding is open to question or that another conclusion was possible. It is especially difficult where the tribunal relied on evidence and did not misunderstand it. An omission to mention a document does not, without more, establish perversity. The Court of Appeal refused permission because the proposed challenge concerned factual assessment rather than an error of law.

Ms Ghosh was dismissed by Nokia Siemens Networks UK Limited in August 2009 and brought claims for unfair dismissal and race discrimination. The Employment Tribunal rejected the discrimination claims. It initially found the dismissal unfair because information obtained from previous managers had not been put to her, but, after a further remedies hearing, concluded that she would have been fairly dismissed even if the information had been disclosed.

Ms Ghosh challenged the tribunal’s factual findings, including its acceptance of evidence given by Mr Greatorex at the remedies hearing. The application concerned whether those findings were perverse or disclosed another point of law.

1. Application refused. The proposed appeal raised no question of law.
2. Under the Employment Tribunals Act, an appeal from an employment tribunal to the Employment Appeal Tribunal, and from the Employment Appeal Tribunal to the Court of Appeal, lies only on a point of law. The tribunal must give coherent reasons for its decision. It is not required to deal with every disputed fact or every point raised by the parties, provided that it explains why it reached its conclusion ([7]).
3. The assessment of witness credibility is a pure question of fact within the exclusive province of the fact-finding tribunal. Mere disagreement with the tribunal’s decision, or describing a finding as open to question, falls well short of perversity ([8]–[10]).
4. The perversity threshold is particularly demanding where the tribunal plainly based its conclusions on evidence. A challenge does not establish an error of law merely because the tribunal accepted one witness’s account, omitted to mention a document, or could have assessed the evidence differently. The position would be different if there were no evidence supporting the finding or if the tribunal had misunderstood the evidence ([11]).
5. The tribunal had considered the apparent change in Mr Greatorex’s evidence and had explained why it accepted his later account. Having found that Ms Ghosh caused the breakdown in trust and confidence and that she would have been dismissed even if the further comments had been put to her, the tribunal was entitled to reach its conclusion. Permission was therefore refused ([12]–[13]).

1. Employment Tribunal — rejected the race discrimination claims and made findings concerning the fairness of the dismissal. Following a further remedies hearing, it concluded that the dismissal would have been fair.
2. Employment Appeal Tribunal — the judgment under appeal is not cited or described in the supplied judgment.
3. Court of Appeal (Civil Division) — refused permission to appeal in [2013] EWCA Civ 216.