Headrick v Leisure Employment Services Ltd

An appeal on a question of law does not permit the Employment Appeal Tribunal to rehear disputed evidence. An Employment Tribunal may resolve a material conflict of evidence by assessing credibility, demeanour and the surrounding circumstances, provided that it considers the evidence and gives intelligible reasons.

A credibility finding is not erroneous merely because it is difficult or finely balanced. Error may arise where a crucial finding is unsupported by evidence, but not where the tribunal makes a permissible evaluative judgment from the evidence before it.

The claimant, a commission-based caravan salesman, resigned and claimed constructive unfair dismissal and breach of contract. He alleged that the respondent had prevented him from attending work and earning commission after a proposed relocation.

The Employment Tribunal rejected that account. It found that senior managers had told him that he could return to the site and preferred the respondent's evidence that the site manager had not barred him. The Tribunal considered it significant that the claimant had not complained to senior management about the alleged contradictory instructions.

The claimant appealed on the narrow ground that the Tribunal had ignored contemporaneous correspondence recording complaints of exclusion and had therefore erred in its credibility assessment.

1. Appeal dismissed. The Employment Tribunal was entitled to reject the claimant's evidence that he had been prevented from returning to work.

2. The issue was important because the claimant's remuneration was largely commission-based. The Tribunal had nevertheless considered the evidence carefully and recognised the conflict between the claimant and the site manager.

3. The Tribunal did not decide credibility on demeanour alone. It considered the surrounding circumstances, including the communications from senior management permitting a return to work, telephone evidence, and the absence of a complaint that the site manager had contradicted those communications.

4. The Tribunal was entitled to conclude that this claimant would have raised such a contradiction with senior management. It did not wrongly assess him by the standards of a lawyer. Its finding was that he had asked about returning to site, but had not complained that the site manager had barred him; nor had his solicitors made that particular complaint.

5. The correspondence was not ignored. It was considered, but did not establish the alleged complaint about inconsistent instructions. Unlike the case concerning an unsupported assumption about medical records, this was a permissible value judgment after consideration of all the evidence. There was therefore no error of law.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal's dismissal of the constructive unfair dismissal and breach of contract claims was upheld.
• Employment Tribunal: unanimously held that the claimant had not been unfairly constructively dismissed and dismissed his separate breach of contract claim. The decision was notified on 25 October 2013.