When Will the Employment Appeal Tribunal Interfere with Findings of Fact?

The Employment Appeal Tribunal will interfere with findings of fact only in narrow and exceptional circumstances. Under section 21 of the Employment Tribunals Act 1996, the EAT's jurisdiction is confined to questions of law. The Employment Tribunal is the fact-finding tribunal, and its findings of fact are ordinarily unassailable on appeal. The Employment Appeal Tribunal does not rehear the evidence, does not reassess the credibility of witnesses, and does not substitute its own view of the facts.

The circumstances in which the Employment Appeal Tribunal will interfere with factual findings are limited to the following: where the finding is perverse, meaning no reasonable tribunal properly directing itself could have reached that conclusion on the evidence; where the tribunal failed to make a necessary finding of fact on a material issue; where the findings are internally contradictory such that the reasoning cannot sustain the conclusion; or where a finding was made without any evidential basis. Each of these represents not a factual disagreement but an error of law arising from the handling of the facts.

Legal Framework

The Primacy of the Fact-Finding Tribunal

The Employment Tribunal occupies a unique position in the adjudicative process. It hears the witnesses, observes their demeanour, assesses the documentary evidence, and makes findings of fact. As the Court of Appeal has repeatedly emphasised, these are matters for the first-instance tribunal and the appellate tribunal must afford them proper respect. In Piglowska v Piglowski [1999] 1 WLR 1360, Lord Hoffmann observed that the exigencies of daily courtroom life are such that reasons for judgment will always be capable of criticism, and the appellate court must resist the temptation to treat that as justifying interference.

This principle is reinforced by the practical reality that the Employment Appeal Tribunal does not see or hear the witnesses. It works from the written judgment and reasons. The advantage that the Employment Tribunal had in seeing the witnesses is a critical factor in the appellate tribunal's reluctance to disturb factual findings.

Perversity

Perversity is the principal ground on which the Employment Appeal Tribunal will interfere with findings of fact. A finding is perverse where it is one that no reasonable tribunal, properly directing itself on the law, could have reached on the evidence before it. The test was stated authoritatively by the Court of Appeal in Yeboah v Crofton [2002] IRLR 634: an overwhelming case must be made out that the tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached.

The threshold is deliberately set at the highest level. The Employment Appeal Tribunal has consistently emphasised that it is not sufficient to show that a different tribunal might have reached a different conclusion, or even that the finding was surprising or apparently wrong. The question is whether the finding was outside the permissible range of conclusions open to the tribunal on the material before it. The Employment Appeal Tribunal will not interfere merely because it would have assessed the evidence differently.

Failure to Make Necessary Findings

The Employment Appeal Tribunal will interfere where the Employment Tribunal failed to make findings on a factual issue that was necessary for the determination of the claim. The standard in Meek v City of Birmingham District Council [1987] IRLR 250 requires the tribunal's reasons to be sufficient to enable the parties to understand why they won or lost. Where a central factual dispute is left unresolved, the reasoning is inadequate and the omission constitutes an error of law.

This ground is distinct from perversity. The challenge is not that the tribunal reached an impermissible conclusion but that it failed to reach any conclusion at all on a material issue. An appeal on this basis may result in a remission to the Employment Tribunal to make the missing findings.

Internally Contradictory Findings

Where the Employment Tribunal's findings of fact are internally contradictory — that is, where two or more findings cannot logically coexist — this may amount to an error of law. The Employment Appeal Tribunal will examine whether the contradiction undermines the tribunal's reasoning to the point where its conclusion cannot stand. A minor inconsistency that does not affect the outcome will not justify interference, but a fundamental contradiction that goes to the heart of the decision will.

The Employment Appeal Tribunal has recognised that judgments prepared under time pressure may contain minor errors or imprecisions. The question is always whether the contradiction is material — whether it affects the tribunal's ultimate conclusion.

Findings Without Evidential Basis

A finding of fact made without any evidential basis is, in substance, a species of perversity. If the Employment Tribunal finds that an event occurred and there is no evidence before it that the event occurred, that finding cannot stand. The Employment Appeal Tribunal will interfere on the basis that a finding made without evidence is a finding that no reasonable tribunal could have reached.

Common Errors and Misconceptions

The most pervasive error is to confuse disagreement with the Employment Tribunal's findings with a basis for appeal. The majority of appellants who challenge factual findings are, in substance, inviting the Employment Appeal Tribunal to prefer their version of events. This is not the function of the appellate tribunal and such appeals will fail.

A closely related misconception is to argue that the Employment Tribunal 'failed to consider' particular evidence when the real complaint is that the tribunal did not give it the weight the appellant would have wished. A tribunal is not required to refer to every piece of evidence in its reasons. The question is whether it engaged with the material issues. A finding that is supported by some evidence is not perverse merely because there was other evidence pointing the other way.

Another common error is to treat the standard of perversity as lower than it actually is. Some appellants describe findings as 'plainly wrong' or 'clearly unsupported by the evidence' without appreciating that this is not the test. The test is whether no reasonable tribunal could have reached the conclusion, which is a substantially higher hurdle.

Some parties also mistakenly believe that producing evidence at the appeal stage that contradicts the Employment Tribunal's findings will assist their challenge. The Employment Appeal Tribunal considers the case on the material that was before the Employment Tribunal. Fresh evidence is admissible only under the strict Ladd v Marshall principles.

Practical Application

The practical task in a factual challenge is to identify which of the recognised categories applies. The appellant should begin by reading the Employment Tribunal's written reasons and identifying the specific finding of fact that is challenged. The next step is to determine why the finding is said to involve an error of law rather than a mere factual disagreement.

For a perversity challenge, the grounds must identify the finding, set out the evidence that was before the tribunal, and explain why the finding was outside the range of permissible conclusions. It is often helpful to identify what was not in dispute, in order to demonstrate that the finding cannot be reconciled with the uncontested evidence.

For a challenge based on failure to make necessary findings, the grounds must identify the factual issue that was in dispute, explain why it was material to the determination of the claim, and point to the absence of any finding on that issue in the written reasons.

For a challenge based on internal contradiction, the grounds must identify the contradictory findings by reference to specific paragraphs of the written reasons and explain why the contradiction undermines the tribunal's conclusion.

The sift judge will scrutinise factual challenges with particular care. Grounds that amount to a restatement of the appellant's factual case will be rejected. To pass the sift, the grounds must clearly identify which category of interference is relied upon and explain why the threshold is met.

Process and Timing

The 42-day time limit for lodging the appeal applies regardless of the ground relied upon. Where the appeal involves a challenge to findings of fact, the appellant may need to obtain the Employment Tribunal's notes of evidence, particularly if the challenge is based on perversity or an assertion that a finding was made without evidential basis. The Employment Appeal Tribunal may request the Employment Judge's notes and the process for obtaining them should be initiated promptly.

In perversity appeals, the appeal bundle may need to include material from the evidence before the Employment Tribunal to demonstrate the disconnect between the evidence and the finding. The Employment Appeal Tribunal's practice direction sets out the requirements for the appeal bundle. The inclusion of material beyond the judgment and reasons requires careful consideration and should be limited to what is strictly necessary to demonstrate the perversity relied upon.

When to Seek Specialist Counsel

Challenges to findings of fact are the area where specialist advice is most critical. The distinction between a factual disagreement and an error of law arising from the handling of the facts is nuanced, and it is the area where litigants in person and non-specialist lawyers most frequently go wrong. A specialist can identify whether the factual complaint falls within one of the recognised categories and, if so, can draft the grounds in a way that gives the appeal its best prospect of success.

Where the complaint is essentially one of perversity, specialist advice is particularly important. The threshold is exceptionally high and the overwhelming majority of perversity challenges fail. A specialist will provide an honest assessment of whether the finding meets the threshold and will advise against pursuing a hopeless perversity appeal that carries a costs risk.

Frequently Asked Questions