In the recent Employment Appeal Tribunal (EAT) case of Wanbeck District Council v Fisher, the EAT came to the rare conclusion that the original tribunal’s conclusions were perverse in law.

Mr Fisher was Community Services Manager for Wanbeck District Council. He was accused of bullying Mrs Nevens, Project Manager at a Healthy Living Centre. The accusations regarded the following issues:

• The way in which he had managed an improper procurement, by her, of an evaluation by a consultant which he thought of little value.
• His plans to restructure the centre where Mrs Nevens worked, which would lead to her losing her job.
• A number of accusations he had made against Mrs Nevens.

An investigation was conducted by the Council, which led to a disciplinary hearing against Mr Fisher at which four charges were levelled against him. He was subsequently dismissed for gross misconduct.

Mr Fisher then lodged a claim of unfair dismissal against the Council. In the original hearing, the tribunal upheld his claim, although it did point out in its judgement that the manner in which Wanbeck had presented its case was “confusing and disjointed”. Wanbeck appealed on the grounds that the tribunal had completely misconstrued the evidence presented to it.

The appeal was successful.

It is very rare for an appeal on perversity grounds to succeed, and in this case HHJ Serota remarked: “We greatly regret that the Employment Tribunal has so totally misunderstood [Wanbeck's] case, probably because of [its] muddled presentation and a degree of lack of clarity [...] in relation to financial irregularities. The Employment Tribunal clearly believed [Mr Fisher] was being disciplined for financial irregularities when that was only the context in which he was said to have bullied Mrs Nevens [...] in our opinion it is impossible thereafter to separate out other findings because all these findings have been made looking at matters through the prism of misunderstanding the nature of the charge against him.”

Once it had determined that the original tribunal had so fundamentally failed to understand the facts of the case, the EAT judged that the conclusions reached by the tribunal could not be relied upon. The appeal was allowed, and the case was accordingly remitted for a fresh hearing.

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