Jeakins Weir Ltd v Wenban & Ors

An Employment Appeal Tribunal will ordinarily refuse a new appellate point where it was not advanced below and would require further factual inquiry. A perversity appeal does not permit the appellate tribunal to substitute its factual assessment. It succeeds only where the finding is wholly impermissible or unsupported by evidence capable of sustaining it.

Whether words or conduct effected a dismissal is assessed objectively and in context. Where the evidence permitted the Employment Tribunal to find that employees did not clearly understand their employment to have ended, its finding that no earlier dismissal occurred was not perverse.

Twelve former employees of Quadron Property Services Ltd brought claims arising from the transfer of work for Stroud District Council. The Bristol Employment Tribunal held that there had been a service provision change under the TUPE Regulations 2006 and that the employees had been automatically unfairly dismissed after the transfer.

Jeakins Weir Ltd appealed. It contended that the employees had instead been dismissed on 17 November 2009, before the transfer, when a contracts manager told the workforce that there was no money or work and that their jobs had ended. The central issue was whether the Employment Tribunal had perversely rejected that contention.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the contracts manager’s words on 17 November 2009 did not give unequivocal notice of dismissal. The evidence showed differing accounts, continuing uncertainty, employees returning or remaining at the depot, and a later formal dismissal letter. Those matters were capable of supporting the finding that the employees did not understand that their employment had then ended.
2. The appellant’s attempt to contend that the contracts manager had dismissed the employees for the company before the administrators’ appointment was a new point. It departed from the pleaded case that the administrator had made the redundancies. Applying Glennie v Independent Magazines UK Ltd [1999] IRLR 719, the Tribunal refused to permit it because it would have required further evidence and factual inquiry.
3. On a perversity appeal, factual assessment belongs to the Employment Tribunal. Following Yeboah v Crofton [2002] IRLR 634, a finding is not perverse where evidence is capable of supporting it. The Employment Judge’s conclusion was permissible and the appeal could not succeed.
4. The Tribunal observed, without needing to decide the point, that whether words or conduct amount to a dismissal should be assessed objectively. The words must be understood in their context and by reference to what their audience could reasonably have been expected to understand.

• Employment Appeal Tribunal: dismissed Jeakins Weir Ltd’s appeal: [2014] UKEAT 0164_14_1211.
• Employment Tribunal, Bristol: held on 8 August 2013 that the claimants had been automatically unfairly dismissed following a service provision change, and confirmed the findings on reconsideration on 10 October 2013.