The claimants succeeded in their claims of unfair dismissal, although it was a majority judgment, the EJ being the minority. The respondent complained that the ruling was perverse, the Notice of Appeal containing a substantial barrage of criticisms of the Tribunal judgment, a number of which inured into misdirections on the one hand and an inadequacy of reasons on the other. Counsel for the claimants saw force in the perversity arguments and did not oppose this aspect of the appeal.

The EAT allowed the appeal and accepted the joint submission of counsel that the matter should be remitted to a fresh Tribunal. In the circumstances, they indicated that, since the perversity challenge was accepted, it would be difficult for them to substitute their judgment.  The basis upon which they would do so in any given case was that the facts were clear and all they would have to do is to apply the correct law.  That was not the case once it was accepted that the judgment was perverse, because that required an examination of evidence, which was not available to the EAT.

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Appeal No. UKEAT/0057/12/CEA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 21 June 2012

Before

HIS HONOUR JUDGE McMULLEN QC

MRS M V McARTHUR FCIPD

MR D NORMAN

CFS MANAGEMENT SERVICES LTD (APPELLANT)

(1) MR A BASHIR

(2) MR G WOODWARD (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR NICHOLAS SIDDALL (of Counsel)
Instructed by:
Co-Operative Financial Services
Legal Department
CIS Building
Miller Street
Manchester
M60 0AL

For the Respondents
MR MARTIN MENSAH (of Counsel)
Direct Public Access

1. We are asked to give our blessing to allowing this appeal by consent and remission to a differently constituted Tribunal; we do. This is in accordance with the Practice Direction, because we have formed the view that this is an appropriate case in which halfway through we can accede to the joint submission.

1. This case is the product of a 42 page Judgment given by Employment Judge Brain sent to the parties on 11 October 2011. Of course Judge Brain wrote the Judgment, but he was in the minority and gave judgment on behalf of the two lay members, and, indeed, gave what might be described as a sub division of the lay members, in that there are specific holdings attributed to one of the lay members only. The case had taken place over ten days and a further three days in chambers, no doubt reflecting the divisions, and a very substantial number of witnesses were called. The case had originally started with three Claimants, but the first on the list, Mr Brandwood, who had the advantage at the Employment Tribunal to be represented by Mr Mensah of counsel, settled his case halfway through, and he was taken out of the equation. The other two Claimants, Mr Bashir and Mr Woodward, were self representing, and they succeeded in their claims of unfair dismissal, primarily on the basis that there had been disparate treatment in disciplinary proceedings of, on the one hand, themselves and, on the other, of at least four persons the Tribunal majority held to be comparators.

1. Today Mr Mensah has provided his services to these two Claimants. The Respondent, CFS, has been represented by Mr Siddall of counsel. In an erudite, distinguished and lengthy skeleton argument he set out a number of criticisms of the Tribunal and a detailed exegesis of the law relating to disparity. During the course of his submissions we engaged him in a discussion of the dictionary definitions of the statutory terms in section 98(4) Employment Rights Act 1996 "reasonably" and "unreasonably"; and "equity", and contrasted that with the words "rational" and "irrational". Following these exchanges Mr Siddall accepted that there was no difference as a matter of law between those two; there is no higher standard required to satisfy a Tribunal in respect of a case where what is unfair is the treatment of the Claimants as compared with those who are in parallel circumstances; and so, with respect to his elegant argument, it came to nothing, and he conceded in open court that there was no case to be made that there is a difference between the words "rational" and "irrational", as used in some of the authorities, and "reasonable" and "unreasonable". The word "equity" in the statute is apt to cover disparity cases because it involves treating people in an even handed way fairly and impartially. The primary definition of both "reasonable" and "rational" pays attention to "rational and reasonable", and so Mr Siddall graciously accepted that his arguments would not be pursued. So, when they go back to the Employment Tribunal, that argument will not be available to the Respondent.

1. The second part of his argument related to perversity, and the Notice of Appeal contains a substantial barrage of criticisms of the Tribunal Judgment, and a number of these inure into misdirections on the one hand and an inadequacy of reasons on the other. We bear in mind the difficulty presented to an Employment Judge in writing a Judgment with which he does not agree, and he is not to be criticised in any way for the way in which the case has been expressed. Having heard the argument, Mr Mensah took instructions from his clients who saw force in the perversity arguments such that he was minded on instructions to not oppose this aspect of the appeal.

1. The question would be what would happen to the outcome. Mr Siddall, in his opening, contended for the EAT to make the decision that the Judgment should be set aside and that there be substituted a finding that the Claimants were not unfairly dismissed. His secondary position was that this should be remitted to a differently constituted Tribunal. Mr Mensah contended that the matter should go back to an Employment Tribunal freshly constituted.

1. The difficulty faced by the EAT in all of these cases of conduct unfair dismissals is what to do if an appeal is allowed. On the one hand there is the Judgment of the Court of Appeal in Buckland v Bournemouth University [2010] IRLR 445 deprecating the sport of ping pong played between the appellate and the first instance courts; that is, that there is an imperative for matters, if possible, to be decided at the appellate level. On the other hand, there is [Fuller v The London Borough of Brent ]()[2011] EWCA Civ 267 itself, where this division was criticised even by the minority, Moore-Bick LJ, for deciding that the claimant in that case was not unfairly dismissed, and the matter should have been remitted, as the Court of Appeal said. In those circumstances, we indicated that, since the perversity challenge was accepted, it would be difficult for us to substitute our Judgment. The basis upon which we would do so in any given case is that the facts are clear and all we have to do is to apply the correct law. That is not the case once it is accepted that the Judgment is perverse, because that requires an examination of evidence, which is not available to us.

1. It might be that if the Reasons challenge succeeded, as to which there is no specific concession, this case is too big to send back to a Tribunal for it to correct its Reasons. If a goodly proportion of the Reasons points is accepted, then it would be too difficult a task to impose upon this Tribunal for it to be seised again of it. A pure point of law such as the one we have looked at under section 98(4) could be decided by us, and it will be apparent that, having not heard Mr Mensah, we consider that the law is as we have said; effectively, it is to confine the matters to the examination of the statute.

1. So, with that guidance, we are happy to accept the joint submission of counsel that this matter now be remitted to a freshly constituted Employment Tribunal, and it will have available a copy of this Judgment. There will be, obviously, substantial management costs and the Claimants will have to appear again, and there may be difficulty in calling the witnesses. All of that indicates to us that the parties so well advised thus far may continue to be so advised and have the assistance of ACAS if necessary to try to reach a resolution of the matters. Mr Brandwood's case was settled, and effectively the Claimants are no further forward now than they were a year or so ago. We appreciate that there are many changes that have been made at CFS through redundancies. All of those matters will be in the forefront of the minds of the parties as they prepare again for the Tribunal hearing, and if they can themselves reach a solution to this matter, they will all be substantially better off.