England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th February 2013

Lord Justice Lewison:

1. Ms Ghosh was employed by Nokia Siemens Networks UK Limited until she was dismissed in August 2009. She brought a claim in the employment tribunal alleging unfair dismissal and race discrimination. In their decision of 6 January 2011 the ET set out their findings about a number of difficulties that had beset the employment relationship between Ms Ghosh and Nokia. These culminated in a disciplinary hearing that took place on 24 July 2009. Mr Greatorex was the person who conducted the hearing on behalf of Nokia Siemens. The hearing lasted for three hours and the ET heard a tape recording of the whole hearing.
2. During the course of the hearing Ms Ghosh said that she had lost trust in her manager, Mr Hellmonds, and he said that he had lost trust in her. Clearly that relationship had broken down. Mr Greatorex told the ET that he had reached the conclusion that Ms Ghosh was ultimately at fault about that; that he did not wish to reach that conclusion lightly and therefore wanted to make inquiries of Ms Ghosh's previous managers. Mr Greatorex expressed his conclusions in writing. He said there had been a breakdown in trust which went beyond the current manager. It was that conclusion that led to the dismissal on the ground that there had been an irreversible breakdown of trust and confidence between her and the company.
3. The ET considered and dismissed the claims of race discrimination. They did so purely on the facts. In large part they rejected Ms Ghosh's evidence and accepted that of Mr Hellmonds, Ms Bates and Mr Greatorex. On the question of dismissal the ET were satisfied that the true reason for the dismissal was that the company genuinely believed that there had been a breakdown in trust and confidence. They had concluded in paragraph 39 that that breakdown was wholly Ms Ghosh's fault. They also held that Ms Ghosh was given proper warning of the matters to be raised at the disciplinary hearing and she had had a fair opportunity to put her case.
4. They continued in paragraph 43 of their decision as follows:

"We would observe that we have found on the information before Mr Greatorex that he could have concluded that there had been a breach of trust and confidence, for which the claimant was entirely responsible, her outbursts before him amply supported such a view. If Mr Greatorex had reached a conclusion there and then that there was a sufficient breakdown in trust and confidence occasioned by the claimant and that he did not have faith, (assuming there were suitable vacancies), that he could recommend transferring the claimant to another department, the Tribunal in accordance with its responsibilities and obligation not to second guess what it would have done in Mr Greatorex's position, would have concluded that the sanction of dismissal fell well within the band of reasonable responses. Mr Greatorex however in this case did not take such a view. He was anxious to investigate further to assess as to whether the breakdown in trust and confidence in relation to Mr Hellmond's ability to deal with the claimant in his Department could be said to be applicable in other areas of the respondent company, and whether or not he could realistically consider redeployment elsewhere within the company. We had considered as to whether such a course was merely a safety check to ensure that his initial view was not wide of the mark. In certain circumstances we would have been prepared to conclude that the further inquiry without reverting back to the claimant would not have made the decision unfair. In this case however it appears [that] Mr Greatorex attached considerable weight to the comments from other managers following the conclusion of the disciplinary hearing. Indeed in evidence before the Tribunal he confirmed in cross examination that speaking to the other managers had a huge bearing on his decision. Having obtained such information, basic fairness required him to put such [damning] allegations to the claimant before reaching his decision. We have come to the conclusion that his failure so to do renders the dismissal on this ground alone unfair."

The ET therefore decided to have a further hearing to decide what would have happened if Mr Greatorex had put these matters to Ms Ghosh.

5. As a result of that further hearing, the ET concluded, in accordance with their earlier findings, that Ms Ghosh was wholly responsible for her own dismissal. At that hearing Mr Greatorex changed his evidence about the weight that he had attached to comments from Ms Ghosh's previous managers. He now said that his purpose in speaking to her was to dot the i's and cross the t's.
6. The ET were fully alive to the apparent inconsistency between Mr Greatorex's evidence at the liability hearing and his evidence at the remedies hearing. They discussed this at length in paragraph 13 of their second decision. They concluded in paragraph 14 of that decision:

"Having heard the claimant's evidence and representations on this matter, and having determined that Mr Greatorex generally sought out other managers' impressions of the claimant, and had no reason to doubt what appears to be consistent comments made by them, we are satisfied that any representations that the claimant may have made at any reconvened disciplinary hearing would not have prompted Mr Greatorex to change his mind or decision in relation to the claimant's dismissal, which would, we judge, have been fair. It is not without relevance and it is common ground that the claimant came to Mr Hellmonds' department having been suspended from her previous post for alleged misconduct matters."

7. Under the Employment Tribunals Act, an appeal from the ET to the EAT and an appeal from the EAT to this court lies only on a point of law. Ms Ghosh makes it clear that her attack is based on perversity of the ET's findings of fact. The ET must of course give coherent reasons for its decision. Provided it explains why it comes to the conclusion it does, the ET like any other tribunal or court has no obligation to deal with every single point of different between the parties or to resolve every single dispute of fact.
8. In relation to the finding that there was no race discrimination, Ms Ghosh in effect wishes to assert that the ET should not have accepted the evidence of Mr Hellmonds Ms Bates and Mr Greatorex on these questions. However, the assessment of the credibility of witnesses is a pure question of fact and is within the exclusive province of the fact-finding tribunal.
9. Ms Ghosh's appeal is really a disagreement with the ET's assessment of the evidence. She has pointed this morning to parts of the ET's decision which in her words are "open to question", but to say that a finding of fact is open to question is a far cry from saying it is perverse. She has also pointed to an omission on the part of the ET to deal with some disputes of fact, but, as I have said, there is no obligation on a court or tribunal to deal with every single question of disputed fact between the parties provided that it explains why it comes to the conclusion that it does.
10. In agreement with Elias LJ, who refused permission on the papers, this aspect of the appeal is in my judgment hopeless.
11. In relation to the unfair dismissal Ms Ghosh relies on what she calls Mr Greatorex's "volte-face" at the remedies hearing. This is not something which the ET ignored. On the contrary they gave reasons why they accepted Mr Greatorex's evidence at the remedies hearing. Ms Ghosh plainly disagrees with their assessment, but that does not disclose any error of law. She does say that the ET were perverse in accepting Mr Greatorex's evidence at the remedies hearing but the test of perversity is an extremely difficult one to satisfy. This is not one of those cases where there is no evidence to support what appears to be a finding of fact. In this case the ET plainly based themselves upon the evidence. Indeed that is the very complaint that Ms Ghosh seeks to raise. Nor is it one of those cases in which it can be shown that the ET misunderstood the evidence that was placed before them. Mr Greatorex's evidence at the remedies hearing was clear. The only question was whether the ET believed him. Ms Ghosh has referred to an email headed "some more brief notes to build on later", which does not feature in the ET's decision either at the liability or at the remedies stage but an omission to deal with a document does not begin to show perversity.
12. Again, the question whether to believe a witness is a pure question of fact. Once the ET had come to the conclusion that Ms Ghosh was the cause of the breakdown of trust and confidence and that she would have been dismissed even if the other managers' comments had been put to her, the ET were entitled to come to the conclusion that they did.
13. In my judgment this proposed appeal raises no question of law. I would therefore refuse permission to appeal.

Order: Application refused