It has long been established that any appeal to the Employment Appeal Tribunal has to be either on the basis of an error of law or that the Tribunal’s findings were perverse. The case of Cleveland Police Authority v Mrs S Francis demonstrates the difficulty of basing an appeal on the latter ground.
The judgment of Yeboah v Crofton sets out the limited test for appeals which effectively challenge factual conclusions, ‘Such an appeal ought only to succeed where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached’. Even in cases where the Appeal Tribunal has ‘grave doubts” about the decision …. it must proceed with ‘great care’.
In this appeal, the CPA submitted that although individual findings of the Tribunal might be supportable, taken together they demonstrate perversity. The Employment Appeal Tribunal therefore looked at the overall picture but pointed out that they did not have the Tribunal’s advantage of having seeing and hearing witnesses. It is this point which is key. In the absence of witness evidence, and with no submission that the law has been misapplied, it is very difficult for the EAT to make a finding of perversity unless of course, the perversity is so obvious that a finding to this effect cannot be avoided.
In deciding whether to take a case to the EAT, where there has been no misapplication of the law, Appellants should consider carefully the test in Yeboah and the judgments in cases such as this one.