As we know an appeal to the EAT must be based on an error of law in the Tribunal’s decision.
Perversity as a ground of appeal is difficult – as the EAT will only accept it if the EAT can say ” Gosh, that can’t be right.” That was the test for perversity enunciated in a case whose name escapes me.
In essence a perversity appeal says that although the Tribunal have correctly applied the law, they have applied the law to the wrong set of facts -ie facts that were not available to be found on the evidence. Finding unavailable facts amounts to an error of law.
In this appeal the Council successfully argued that the decision reached was perverse in that the Tribunal had misunderstood the facts.
Ironically (and bizarrely) one of the possible reasons that the Tribunal misunderstood the facts was that both parties were unrepresented and the EAT say that the Tribunal misunderstood the Respondent’s case probably because the Respondent’s presentation of it was so “muddled.”
On an entirely separate note, the only case reference cited by the EAT on perversity is a Court of appeal case Mr Sheridan v BT (1987.) I once had the great pleasure of meeting and cross examining Mr Sheridan at Bedford ET when he put a claim in against a client of mine, which, unfortunately for him, he lost.