What Is a Perversity Appeal in the Employment Appeal Tribunal, and How High Is the Threshold?

A perversity appeal is an appeal to the Employment Appeal Tribunal on the ground that the Employment Tribunal's decision, or a specific finding within it, was one that no reasonable tribunal, properly directing itself on the law, could have reached on the evidence before it. The threshold is exceptionally high. The Court of Appeal in Yeboah v Crofton [2002] IRLR 634 held that an overwhelming case must be made out. The Employment Appeal Tribunal will not substitute its own view of the facts and will not interfere merely because a different tribunal might have reached a different conclusion.

Perversity is technically an error of law because a conclusion that no reasonable tribunal could reach is treated as disclosing a misdirection, even if the tribunal correctly stated the legal test. However, it is the most difficult ground of appeal to establish and has the lowest success rate of all categories of error of law. The Employment Appeal Tribunal scrutinises perversity grounds with particular rigour and will reject grounds that are, in substance, an attempt to re-argue the facts.

Legal Framework

The Yeboah v Crofton Test

The authoritative statement of the perversity test is found in Yeboah v Crofton [2002] IRLR 634. The Court of Appeal held that 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. The use of the word 'overwhelming' is deliberate and sets the bar at the highest level.

The test has been consistently applied by the Employment Appeal Tribunal in subsequent cases. In ASLEF v Brady [2006] IRLR 576, the EAT reiterated that the hurdle is high and that the appellate tribunal must not substitute its own view of the facts. The test is not whether the Employment Appeal Tribunal would have reached a different conclusion but whether the conclusion was outside the range of permissible conclusions on the evidence.

The Distinction Between Perversity and Disagreement

The distinction between perversity and disagreement is fundamental. An appellant may genuinely believe that the Employment Tribunal reached the wrong conclusion. That belief, however strongly held, does not establish perversity. The Employment Tribunal is entitled to weigh the evidence and reach conclusions that one party disagrees with. The tribunal's conclusion is perverse only if it falls outside the range of conclusions that were reasonably open to it.

The Employment Appeal Tribunal has observed that many appeals framed as perversity challenges are, on analysis, simply expressions of dissatisfaction with the outcome. These appeals are identified at the sift stage and rejected. The sift judge will look beyond the label attached to the ground and assess whether, in substance, the appellant is seeking to relitigate the facts.

Categories of Perversity

Perversity can take several forms. The most straightforward is a finding that is directly contradicted by uncontested evidence. If the Employment Tribunal finds that an event did not occur when there is unambiguous documentary evidence that it did, and the document was before the tribunal, the finding may be perverse.

A second category is where the tribunal's conclusion is logically unsustainable on its own findings of fact. If the tribunal finds facts A, B, and C, and those facts compel conclusion X, but the tribunal reaches conclusion Y without explanation, the disconnect between findings and conclusion may amount to perversity.

A third category is where the tribunal has demonstrably failed to take into account a material piece of evidence that, had it been considered, would have compelled a different conclusion. This overlaps with the ground of inadequacy of reasons but may also be characterised as perversity where the omission renders the conclusion irrational.

The Role of the Evidence

In perversity appeals, the Employment Appeal Tribunal may need to consider the evidence that was before the Employment Tribunal to a greater extent than in other types of appeal. The EAT does not ordinarily review the underlying evidence, but in a perversity challenge, it may be necessary to examine particular documents or passages of evidence to assess whether the finding was outside the permissible range.

This does not mean the Employment Appeal Tribunal conducts a review of the evidence. It means the EAT considers whether, on the specific material relied upon by the appellant, the finding was one that no reasonable tribunal could have reached. The scope of the review is narrow and focused on the particular finding challenged.

Common Errors and Misconceptions

The most common misconception about perversity is that it provides a route to challenge any factual finding the appellant disagrees with. It does not. Perversity is a ground of last resort, reserved for cases where the finding is so far removed from what the evidence supports that no reasonable tribunal could have reached it. The vast majority of factual disagreements do not meet this threshold.

A related error is to use language such as 'plainly wrong', 'clearly unsupported', or 'obviously incorrect' as if these phrases establish perversity. They do not. The Employment Appeal Tribunal applies the Yeboah v Crofton test regardless of the adjectives used in the grounds. What matters is whether the finding was outside the permissible range, not how emphatically the appellant disagrees with it.

Another frequent mistake is to draft grounds of appeal that set out the appellant's version of the facts and then assert that the Employment Tribunal's contrary findings are perverse. This is the hallmark of a re-argument, not a perversity challenge. Effective perversity grounds identify the specific finding, identify the specific evidence that renders it perverse, and explain the disconnect between the two.

Some appellants pursue perversity appeals in the hope that the Employment Appeal Tribunal will be sympathetic to the overall unfairness of the outcome. The EAT's jurisdiction is confined to errors of law. However unjust the outcome may appear, the EAT cannot intervene if the Employment Tribunal's findings were within the permissible range and it correctly applied the law.

A further error is to argue perversity where the real complaint is about the weight attached to evidence. A tribunal may hear conflicting evidence and prefer one account over another. That preference is a matter of judgment for the fact-finding tribunal. The Employment Appeal Tribunal will not interfere with the weight attached to evidence unless the preference was itself perverse.

Practical Application

Before pursuing a perversity appeal, the appellant should apply a rigorous self-assessment. The question to ask is not 'did the Employment Tribunal get the facts wrong?' but 'could any reasonable tribunal have reached this conclusion on this evidence?' If the honest answer is that a different tribunal might have reached a different conclusion but the finding was not irrational, perversity will not succeed.

Where the perversity threshold is met, the grounds of appeal must be drafted with precision. The specific finding challenged should be identified by reference to the relevant paragraph of the written reasons. The evidence that renders the finding perverse should be identified by reference to specific documents or passages of testimony. The grounds should explain clearly why the evidence and the finding are irreconcilable.

It is often effective to structure a perversity ground by setting out: (i) the finding challenged; (ii) the uncontested or documentary evidence that bears on that finding; (iii) the absence of any evidence supporting the finding; and (iv) the conclusion that no reasonable tribunal could have reached the finding on that evidence. This structure assists the sift judge in understanding the challenge quickly and clearly.

Strategic considerations are important. A perversity appeal that fails may attract an adverse costs order if the Employment Appeal Tribunal considers that the appeal was unreasonable. Perversity appeals should only be pursued where the case is genuinely overwhelming. A specialist can provide an honest assessment of whether the threshold is met.

Process and Timing

The 42-day time limit applies to perversity appeals as to all other appeals. The preparation of a perversity appeal may require additional steps, including obtaining the Employment Tribunal's notes of evidence and assembling the material from the hearing that demonstrates the perversity relied upon.

The appeal bundle in a perversity case may need to include material beyond the judgment and reasons. The Employment Appeal Tribunal's practice direction governs what may be included. The bundle should contain only the material that is strictly necessary to demonstrate the perversity; including excessive material suggests a re-argument rather than a focused perversity challenge.

At the full hearing, the Employment Appeal Tribunal will expect the appellant to take the court to the specific evidence that renders the finding perverse. The oral argument should be tightly focused on the disconnect between the evidence and the finding, and should avoid the temptation to re-argue the underlying case.

When to Seek Specialist Counsel

Perversity is the ground of appeal where specialist advice is most important. The threshold is so high that the majority of perversity appeals fail, and a poorly framed perversity appeal carries a costs risk. A specialist can assess whether the case genuinely meets the threshold, draft grounds that are focused and effective, and present the argument in a way that maximises the prospects of success.

Where a specialist advises that the perversity threshold is not met, that advice is valuable. It enables the party to avoid the costs and stress of a futile appeal and, where appropriate, to redirect resources to alternative grounds that have better prospects.

Frequently Asked Questions