The claimant had brought several claims against the respondent but all but one of them were dismissed, only the claim of constructive unfair dismissal succeeded and the claimant was awarded c£55k in basic and compensatory award. The respondent appealed on the grounds that the tribunal had substituted its opinion for that of the reasonable employer; and that there was no evidence to support findings in fact.

Lord Fairley rejects both grounds. On substitution he notes at [8] “the issue of the “band of reasonable responses” does not arise at all in a constructive dismissal case where the sole basis for the employer’s defence is that there was simply no dismissal” as was the case here. On lack of evidence, Lord Fairley states at [26]:

*“The premise on which this ground is based is that there was no evidence for certain matters about which the Tribunal made clear findings in fact. That is a high standard which amounts, in effect, to an allegation of perversity. In this appeal process, however, the Appellant has made no attempt to comply with paragraph 4 of the EAT’s Order of 6 October 2021. The result is that, at the Full Hearing of the appeal today, Mr Maguire was not in a position to put before me the essential component parts of such a ground of appeal. All that he has been able to do is to refer me to parts of the evidence that was led for the Appellant and assert ex parte that there was no contrary evidence. Such a position could never be a sufficient basis on which to sustain a perversity appeal of the type made here.” *