Stewart v Barnwood Construction Ltd

An appellate tribunal may interfere with an Employment Tribunal’s factual findings only on a point of law. A perversity challenge faces a high threshold: it must show that no reasonable tribunal could have made the finding, or that the finding lacked any evidential support or contradicted all relevant evidence.

Written Reasons must be read fairly and as a whole. They need not display expert legal drafting. Brief or imperfect reasoning will suffice where the tribunal’s findings and conclusion can be understood and were open on the evidence. An inconsistency or lack of fuller explanation does not establish perversity if it is not fundamental to the conclusion.

The claimant appealed from the decision of the Bristol Employment Tribunal, which dismissed his claims for race discrimination, victimisation and constructive unfair dismissal.

His principal allegation was that a colleague had spread rumours that he had used, or would use, the “race card” to secure another employee’s departure. The Employment Tribunal found instead that any 2013 discussion concerned alleged advice given by the claimant to another colleague during an earlier redundancy exercise. It held that the alleged conduct did not amount to discrimination or victimisation.

The appeal alleged that this central factual finding was perverse or contrary to uncontradicted evidence. The claimant also sought permission to advance a new victimisation ground not argued below.

1. Appeal dismissed. The Employment Appeal Tribunal held that it could interfere only on a point of law. It was not a fact-finding tribunal, and it had to approach an allegation of perversity with particular caution. The Employment Tribunal’s Reasons had to be read in a common-sense way and were not to be judged as if they required expert legal drafting.

2. The Employment Tribunal’s reasoning was brief and imperfectly expressed, but its essential conclusion was clear. It found that the colleague had not spread rumours that the claimant had actually used his race unjustly to remove the other employee. Rather, any 2013 gossip concerned alleged advice about a separate redundancy exercise. That factual conclusion was open on the evidence.

3. There was an unresolved inconsistency between the colleague’s written statement, which suggested a 2013 reference to the earlier incident, and the Tribunal’s finding that his 2013 remarks were confined to the redundancy matter. The inconsistency was not fundamental. The Tribunal could accept oral evidence which differed from a witness statement, although fuller reasons for doing so would have been preferable.

4. The decisive point was that the remarks found by the Employment Tribunal lacked the necessary accusation that the claimant had actually and unjustifiably used his race against the other employee. The Tribunal’s conclusion that no actionable detriment had been established was therefore not perverse.

5. Permission to add a new victimisation ground was refused. The proposed point required factual as well as legal investigation, was not a knock-out point, and had not been advanced before the Employment Tribunal. The Appeal Tribunal also declined to seek supplementary Reasons under the Burns-Barke procedure, since it could determine the appeal without that step.

• Employment Appeal Tribunal: appeal dismissed: [2015] UKEAT 425_14_1111.
• Bristol Employment Tribunal: dismissed the claims for race discrimination, victimisation and constructive unfair dismissal. The decision was signed on 27 June 2014 and sent to the parties on 30 June 2014.