L Fry v Kingswood Learning & Leisure Group Ltd

A perversity appeal succeeds only where the Employment Tribunal reached a conclusion which no reasonable tribunal, properly appreciating the evidence and law, could have reached. Inconsistent evidence does not compel acceptance of one account where the Tribunal was entitled to prefer corroborated evidence and its factual findings.

A Tribunal must give reasons proportionate to the issue. It must identify the critical findings and explain how they lead to its conclusion, so that the parties and an appellate court can understand why the case was won or lost. It need not analyse and reject every competing item of evidence or every alternative account.

The claimant appealed from a decision of the Midlands (East) Employment Tribunal, sent to the parties on 14 June 2022. The Tribunal rejected her claim that her redundancy dismissal was because she had made protected disclosures concerning the dismissing manager’s alleged conduct towards female colleagues.

The protected disclosures were admitted. The central factual issue was whether the dismissing manager knew that the claimant had made them before deciding to dismiss her. The Tribunal found that he first learned of her identity and allegations when she raised a grievance in October 2020, after the dismissal decision.

The appeal alleged perversity and inadequate reasons. It challenged the Tribunal’s acceptance of evidence about the date of the manager’s knowledge despite inconsistencies in his evidence.

Appeal dismissed. The Employment Tribunal was entitled to find that the dismissing manager did not know, when he made the redundancy decision, that the claimant had made protected disclosures.

1. The perversity threshold is high. Applying Yeboah v Crofton, the question was whether no reasonable Tribunal could have reached the conclusion on a proper appreciation of the evidence and law. The manager’s evidence about the date of his knowledge was inconsistent, but the Tribunal was not legally bound to accept the earlier date apparently suggested by one passage of his witness statement.

2. The Tribunal could prefer the account that the manager first learned of the claimant’s disclosures through the October 2020 grievance. That account was corroborated by the People Director. The Tribunal had also found that there was no evidence that the Programme Director, or anyone else, had informed the manager before the dismissal decision. It was therefore open to the Tribunal to find that the redundancy arose from the pandemic-related need to reduce headcount and costs, rather than whistleblowing.

3. The reasons challenge also failed. Under Rule 62 of Employment Tribunal’s (Constitution and Rules of Procedure) Regulations 2013, reasons had to enable the claimant and an appellate court to understand the critical basis of the decision. The Tribunal did not have to catalogue the manager’s five possible dates of knowledge or explain separately why it rejected each. Its findings that the People Director informed him only in October 2020, that there was no evidence of an earlier disclosure to him, and that redundancy was the true reason sufficiently explained the result.

• Employment Appeal Tribunal — dismissed the claimant’s appeal and upheld the finding that the dismissing manager lacked knowledge of her protected disclosures when making the redundancy decision.
• Midlands (East) Employment Tribunal — decision sent on 14 June 2022; rejected the whistleblowing dismissal claim, finding that the dismissal decision was made for redundancy and before the manager knew the claimant had made protected disclosures.