Can I Appeal Because the Employment Tribunal Got the Facts Wrong?

No, not simply because you disagree with the Employment Tribunal's findings of fact. The Employment Appeal Tribunal's jurisdiction under section 21 of the Employment Tribunals Act 1996 is limited to questions of law. An appeal to the Employment Appeal Tribunal is not a rehearing and the EAT does not reassess the evidence or substitute its own findings of fact for those of the tribunal below.

There are, however, narrow circumstances in which a challenge to the facts may succeed. If the Employment Tribunal's findings were perverse — meaning no reasonable tribunal, properly directing itself, could have reached that conclusion on the evidence — that amounts to an error of law. Similarly, if the tribunal failed to make findings on a key factual dispute, or if its findings are internally contradictory, the inadequacy of the reasoning may constitute an error of law. These are exacting standards and the overwhelming majority of factual challenges fail.

Legal Framework

The Distinction Between Fact and Law

The Employment Tribunal is the fact-finding tribunal. It hears the witnesses, assesses their credibility, considers the documentary evidence, and makes findings of fact. These findings are within the exclusive province of the tribunal. The Employment Appeal Tribunal has no power to make its own findings of fact and does not see the witnesses.

The distinction between a factual error and a legal error is fundamental to appellate jurisdiction. A factual error is where the Employment Tribunal finds that something happened which did not, or did not happen which did. A legal error is where the tribunal misapplied the law to the facts as found, misdirected itself on the relevant legal test, or reached a conclusion that no reasonable tribunal could have reached.

Perversity: The Exception

The ground of perversity provides a narrow route to challenging factual findings. A finding is perverse where it is one that no reasonable tribunal, properly directing itself on the law, could have made on the evidence before it. The test was stated by the Court of Appeal in Yeboah v Crofton [2002] IRLR 634: an overwhelming case must be made out.

The threshold is deliberately set high. The Employment Appeal Tribunal is not a court of factual review. That a different tribunal might have assessed the evidence differently or reached a different factual conclusion is irrelevant. To succeed on perversity, an appellant must show that the finding was outside the permissible range of conclusions open on the evidence. This is rarely achieved.

The Employment Appeal Tribunal has on numerous occasions emphasised that the word 'perverse' is not a term of art and should not be watered down. An appellant cannot succeed by showing that the finding was surprising, unusual, or even apparently wrong. The question is always whether it was a finding that no reasonable tribunal could have made on the evidence.

Inadequate Findings of Fact

A separate ground of appeal arises where the Employment Tribunal failed to make necessary findings of fact. The standard set out in Meek v City of Birmingham District Council [1987] IRLR 250 requires the tribunal's reasons to be sufficient to enable the parties to know why they won or lost. Where the tribunal fails to resolve a factual dispute that was central to the claim, or where it makes findings that are internally inconsistent, this may amount to an error of law.

This is distinct from perversity. The challenge is not to what the tribunal found, but to the adequacy of its reasoning process. An appeal on this basis does not require the appellant to show that the finding was perverse; rather, it requires showing that the tribunal failed in its duty to provide adequate reasons.

Common Errors and Misconceptions

The single most common error in Employment Appeal Tribunal appeals is attempting to re-argue the facts. The majority of grounds of appeal drafted by litigants in person, and a significant proportion of those drafted by solicitors without appellate experience, amount to a restatement of the party's factual case. These grounds will be rejected at the sift stage.

A closely related mistake is to dress up a factual challenge as a legal one. Asserting that the tribunal 'failed to consider' evidence is sometimes used as a formula for arguing that the tribunal should have given more weight to particular evidence. The Employment Appeal Tribunal will see through this. A tribunal is not required to refer to every piece of evidence. The question is whether it engaged with the material issues and reached a conclusion that was open to it on the evidence.

Another misconception is that if a witness was not believed, the tribunal must have erred. Credibility findings are quintessentially matters for the first-instance tribunal. The Employment Appeal Tribunal gives considerable deference to the tribunal that had the advantage of seeing and hearing the witnesses. An appeal against a credibility finding will succeed only in the most exceptional circumstances.

Some appellants believe that producing additional evidence to show the tribunal's factual findings were wrong will assist their appeal. It will not. The Employment Appeal Tribunal considers the case on the material that was before the Employment Tribunal. Fresh evidence is admissible only in very limited circumstances under the principles in Ladd v Marshall [1954] 1 WLR 1489.

Practical Application

Where a party considers the Employment Tribunal's factual findings to be wrong, the practical task is to determine whether the complaint can be articulated as an error of law. This requires careful analysis of the written reasons.

The question to ask is not 'did the tribunal get the facts wrong?' but rather: 'did the tribunal reach a factual conclusion that no reasonable tribunal could have reached?' or 'did the tribunal fail to make findings on a material issue?' or 'are the tribunal's findings internally contradictory such that the reasoning does not support the conclusion?'

In practice, perversity appeals succeed only where there is a stark disconnect between the evidence and the finding. An example would be where the Employment Tribunal found that an event did not occur when there was uncontested documentary evidence that it did. Even then, the Employment Appeal Tribunal will consider whether there might have been an explanation that the tribunal accepted.

The sift judge will scrutinise grounds of appeal based on perversity with particular care. Grounds that amount to an invitation to re-evaluate the evidence will be rejected. To pass the sift, perversity grounds must identify the specific finding challenged, the evidence that renders the finding perverse, and an explanation of why no reasonable tribunal could have reached that conclusion.

Process and Timing

The same 42-day time limit applies to all appeals to the Employment Appeal Tribunal, including those based on perversity or inadequacy of reasons. The Notice of Appeal must identify the ground of appeal with precision.

Where the appeal is based on perversity, it is often necessary to refer the Employment Appeal Tribunal to specific passages in the evidence that was before the Employment Tribunal. The appellant may need to obtain the notes of evidence and apply for them to be included in the appeal bundle. This adds to the preparation time and should be factored into the timetable.

In some cases, the Employment Appeal Tribunal may request the Employment Judge's notes of evidence. This typically occurs in perversity appeals or appeals based on alleged procedural unfairness. There is a formal process for requesting the judge's notes.

When to Seek Specialist Counsel

The distinction between disagreement with the facts and an error of law is the most fundamental concept in appellate work, and it is the area where litigants in person and non-specialist lawyers most frequently go wrong. Specialist counsel can assess whether a factual complaint is capable of being articulated as a proper ground of appeal.

Where the real issue is perversity, specialist advice is particularly important. The threshold is high and the vast majority of perversity appeals fail. A specialist can provide an honest assessment of whether the case meets the threshold and, if so, can draft the grounds in a manner that maximises the prospects of passing the sift.

Frequently Asked Questions