Bird v University Of Bristol

An appeal on perversity is confined to the exceptional case where an Employment Tribunal has reached a conclusion that no reasonable tribunal, properly applying the evidence and the law, could have reached. The Employment Appeal Tribunal must not turn an appeal on a question of law into a rehearing of disputed facts.

A tribunal may reject evidence where it gives tenable reasons for doing so. It may assess the significance of late-produced documents, changes in a party’s case, and non-contemporaneous supporting material. The fact that evidence is direct or uncontradicted does not require its acceptance where the tribunal has fairly evaluated its reliability.

The claimant appealed against part of the Bristol Employment Tribunal’s judgment of 16 January 2012, which dismissed claims for unfair dismissal, age discrimination and a redundancy payment.

He contended that, when recruited as a contracts engineer, the University had agreed a minimum five-year term of employment. The Tribunal rejected that contention. It found that an email produced by the claimant could not be relied upon and that later emails from two interviewers did not establish a binding agreement.

The appeal proceeded on one ground: whether those factual conclusions were perverse.

1. Appeal dismissed. The Employment Tribunal’s conclusions were not perverse.
2. A perversity appeal is a tightly confined challenge to findings of fact. Applying Yeboah v Crofton [2002] IRLR 634, it can succeed only where an overwhelming case shows that no reasonable tribunal, properly applying the evidence and law, could have reached the impugned conclusion. The EAT must exercise great care and must not use an appeal on law as a rehearing of factual evidence.
3. The Tribunal was plainly entitled to reject the claimant’s original case that a five-year minimum term had been agreed at interview. His claim form advanced that case, but his witness statement and oral evidence advanced a different case: that agreement was reached after the interview.
4. The Tribunal also had tenable grounds for rejecting the purported email of 7 April 2008. It had been produced late; it had not been mentioned when the University denied any guarantee in 2010, in the claimant’s 2011 communications with the interviewers, or in his claim form. The Tribunal was also entitled to take account of inconsistencies with the recruitment record, the absence of authentication, and the claimant’s unsatisfactory account of supporting material.
5. The later emails from the interviewers were non-contemporaneous and responded to an account concerned with the interview. Since the claimant’s case at the hearing was that the agreement arose later, the Tribunal was entitled to treat those emails as of limited weight. Its reasons were adequate and its factual conclusions were open to it.

• Employment Appeal Tribunal: dismissed the claimant’s perversity appeal.
• Employment Tribunal, Bristol: on 16 January 2012 dismissed the claims for unfair dismissal, age discrimination and a redundancy payment.