United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ROBERT THOMAS (Solicitor) Speechly Bircham LLP 6 New Street Square London EC4A 3LX
For the Respondent	MS NAOMI CUNNINGHAM (of Counsel) Instructed by: OH Parsons & Partners 3rd Floor Sovereign House 212-224 Shaftesbury Avenue London WC2H 8PR


 


SUMMARY

TRADE UNION RIGHTS – Interim relief

The Claimant's claim was brought for unfair dismissal contrary to s152(1)(b) TULR(C)A 1992 (trade union activity) and Schedule A1 para 161(2)(a) (acting to secure union recognition).

An application for interim relief under s161 TULR(C)A 1992 and s128 ERA 1996 was supported by requisite certificates by TU officials.

Relief granted by Employment Judge.

Respondent's (employer's) appeal.

Appeal dismissed.

Judge applied the right test. In the context of a summary hearing, he made the required decision as to how matters "appeared" to him. His finding that the Claimant was "likely" to succeed in the underlying claim was not perverse and had been reached applying the correct principles.


 


MR RECORDER LUBA QC

Introduction

1. This is an appeal by London City Airport Ltd against a Judgment of Employment Judge Keith, sitting at the East London Hearing Centre, by which he made an order for interim relief in favour of Mr Philip Chacko, the Claimant in proceedings for unfair dismissal. By his unfair dismissal claim Mr Chacko was asserting that he had been dismissed for what might broadly be described as 'trade union activities'. That claim was resisted by London City Airport (hereafter referred to as 'the employers'). However, pending the resolution of the unfair dismissal claim, Mr Chacko applied for interim relief pursuant to section 161 of the Trade Union and Labour Relations (Consolidation) Act 1992. After a hearing on 2 October 2012, at which both parties had legal representation, the Employment Judge made an order for interim relief which, in short terms, required the employers to continue to remunerate Mr Chacko as though his terms and conditions of employment were still in place and until the future hearing of the unfair dismissal claim.

Factual background

2. Mr Chacko was first employed by the employers in December 2004. In 2007 he became a trade union member and it is common ground that he was an active and vigorous trade union representative at the employer's workplace. He was employed as a Ramp Service Agent which meant that part of his duties involved joining other employees in a small team under a supervisor in dealing with particular aircraft and providing the ramping services for those aircraft. Between 2007 and 2012 Mr Chacko initiated a number of grievances arising from his employment and they were dealt with under the employer's grievance procedures. Toward the end of July 2012 one of Mr Chacko's supervisors, a Mr Kevin Andrews, made a statement to the employers that he was being bullied and harassed by Mr Chacko. The particulars were that Mr Chacko was in the habit of mouthing obscenities at him and generally seeking to upset and distress him so that he might react inappropriately and unprofessionally and be the source of yet another grievance from Mr Chacko. Statements were taken by the employer's Human Resources officials from Mr Andrews and from other employees in the early part of August 2012. On 10 August 2012, Mr Chacko's trade union wrote to the employers indicating that Mr Chacko was to be one of a number of employees who would be involved with a ballot seeking recognition of the trade union at the employer's workplace.
3. On 13 August 2012, Mr Chacko was told that he was being suspended pending investigation into the complaints which had been received in relation to his alleged misconduct. As a result of the material gleaned by the Human Resources officials from other staff, Mr Chacko was invited to a disciplinary meeting on 29 August 2012. That was rescheduled for 31 August and the disciplinary hearing was conducted by a Mr Minnithorpe of the employers. At the conclusion of that hearing, Mr Chacko was dismissed. Mr Chacko appealed against the dismissal and the appeal was conducted by a Ms Preston of the employers. The appeal was unsuccessful and the dismissal decision stood. Mr Chacko promptly submitted a claim to the Employment Tribunal Service alleging that he had been unfairly dismissed and seeking an order for interim relief on the basis that the reason or principal reason for his dismissal was the fact that he had been undertaking trade union activities.

The relevant law

4. By virtue of the Trade Union and Labour Relations (Consolidation) Act 1992 the dismissal of an employee on grounds related to trade union membership or activities, is deemed to be automatically unfair. More particularly, section 152(1)(b) provides that if the reason for the employee's dismissal (or if more than one reason, the principal reason) was that the employee "had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time" that such dismissal would be automatically unfair.
5. Additionally, Schedule A1 of the 1992 Act makes further provision as to circumstances in which the dismissal of an employee will be regarded as unfair. Those reasons include the reason that "the employee acted with a view to obtaining or preventing recognition of a union by the employer": paragraph 161(2)(a) of Schedule A1.
6. The legislative regime recognises, however, that there may be several weeks or months that pass between an employee alleging that they have been automatically unfairly dismissed on the grounds described above and the hearing of that claim. Accordingly, section 161 of the 1992 Act makes provision for the possibility of an order for interim relief. Section 161 imposes requirements for speedy application on the employee and mandates that the employee's application be supported by a certificate from an authorised official of an independent trade union. Moreover, section 162 of the 1992 Act requires the Employment Tribunal Service to arrange for the prompt determination of the application "as soon as reasonably practicable". Section 163 then makes provision as to what is to happen on the hearing of an application for interim relief. By subsection (1) it is provided that:

"If on hearing an application for interim relief it appears to the Tribunal that it is likely that on determining the complaint to which the application relates that it will find that, by virtue of section 152, the complainant has been unfairly dismissed the following provisions apply."

7. Section 163(6) deals with the position that arises if the Tribunal is satisfied in relation to the test in subsection (1) but the employer is unwilling to re-engage the employee pending the Tribunal hearing of the unfair dismissal claim. In those circumstances, "the Tribunal shall make an order for the continuation of the employee's contract of employment". Section 164 then specifies the nature of such an order and section 165 deals with subsequent applications for variation or revocation of such an order.
8. The provisions thus far described deal with cases in which the employee is asserting that they have been dismissed by reason of taking part in, or proposing to take part in, trade union activities. The employee who wishes to rely on the alternative ground raised by paragraph 161(2) of Schedule A1 of the 1992 Act may similarly seek interim relief under a parallel procedure set out in section 128 of the Employment Rights Act 1996.
9. Whether the application for interim relief is made under the 1992 Act or the 1996 Act, the test to be applied by the Tribunal is the same in both cases. That is to say, that the Tribunal must be satisfied that "it is likely that on determining the complaint" the Tribunal will find that the reason or the principal reason for dismissal is that which the employee has asserted. It is not sufficient that the employee is able to establish that "it is likely" they were otherwise unfairly dismissed, i.e. for other reasons. They must be able to show that it is likely that it will be found that they have been dismissed for the sole or the principal reason of their trade union activities.
10. The correct approach to be applied to the meaning of "it is likely" has been a matter of some controversy. It has been argued by some, not least in the relevant passages in Harvey on Industrial Relations and Employment Law, that it will be sufficient for the employee to show that, on the balance of probabilities, he or she is ultimately going to win at the subsequent unfair dismissal hearing. However, the weight of authority is against a simple balance of probabilities approach. As long ago as the decision of this Employment Appeal Tribunal in Taplin v C Shippam Ltd [1978] ICR 1068 it was held that the appropriate test is higher than simply establishing that the balance is somewhat more in favour of the employee's prospect of success. It must, on the authority of Taplin, be established that the employee can demonstrate a pretty good chance of success. While that cannot substitute for the statutory words, it has been the guiding light as to the meaning of "likely" in this context that has been applied over the subsequent three of more decades by the EAT. As recently as November 2009, this EAT in a constitution presided over by the then President, Underhill J, upheld the Taplin approach: Dandpat v University of Bath [2009] UKEAT/0408/2009. In that case, the appellant had sought to contend that the authority of Taplin had been undermined by a decision of the House of Lords. This EAT rejected that submission and in due course, held as follows:

"Taplin has been recognised as good law for 30 years. We see nothing in the experience of the intervening period to suggest that it should be reconsidered. On ordinary principles we should be guided by it unless we are satisfied that it is plainly wrong. That is very far from being the case. We do in fact see good reasons of policy for setting the test comparatively high in the way in which this Tribunal did in the case of applications for interim relief. If relief is granted, the respondent is irretrievably prejudiced because he is required to treat the contract as continuing and pay the claimant until the conclusion of the proceedings: that is not a consequence that should be imposed lightly." [20]

11. The correctness of that direction in law was raised on an application for permission to appeal to the Court of Appeal. After a consideration of it (and of the other grounds advanced in the case) permission to appeal was refused by Arden LJ: [2010] EWCA Civ 305 paragraph [17].

The Tribunal's Judgment

12. The application for interim relief came before an Employment Judge sitting alone. It was set down for a full one day hearing. No written submissions were adduced but the Employment Judge was furnished with a good deal of other documentation. As would be appropriate for a summary hearing of this nature, no oral evidence was called.
13. In his written reasons subsequently delivered, the Employment Judge explained why he reached the decision he did, that is to say to grant the application for interim relief. At paragraphs 1-4 of his reasons, he set out the background circumstances to the application for interim relief and referred briefly to the relevant statutory provisions. At paragraphs 5 and 6 he directed himself to the relevant law. He referred to the decision in Dandpat and the appropriate test as to the meaning of the word "likely". He directed himself that "I agreed with the parties the appropriate test in this case, as set out in Taplin, which has stood the test of time, namely that for the interim application to succeed, it must stand a pretty good chance of success." By reference to something said in the EAT Judgment in Derby Daily Telegraph v Foss [1991] UKEAT/631/91 he was also prepared to adopt the alternative formulation that it would be necessary for the applicant for interim relief to establish that their case was "a potential winner".
14. The Employment Judge was manifestly alive to the proposition that, in this class of case, an employer never avowedly or explicitly asserts or concedes that the sole or main reason for an employee's dismissal was his or her trade union activities. The more likely circumstance is that there is a hot dispute as to what was the true reason for the employee's dismissal. Thus, the Employment Judge directed himself at paragraph 5 "that tribunals considering applications for interim relief are very likely to deal with centrally disputed facts, particularly in relation to the reason for dismissal". Having thus directed himself as to the relevant authorities, the statutory provisions and the circumstances of an application for interim relief, the Employment Judge said as follows:

"6. Whilst it is not for me to make findings of fact in this tribunal in considering an application for interim relief, and I make no such findings, nevertheless it is necessary for me to weigh the evidence before me to make a preliminary assessment as to whether the claimant would be likely to succeed in his ultimate claim. In doing so I am mindful of the consequences of such an order and that it is not one to be ordered lightly. I have considered carefully all the documents before me in this context."

15. The reasons of the Employment Judge then set out respectively the competing contentions of the legal representatives and at paragraphs 9-13 set out his explanation of his reasons for reaching the conclusion he did. In the course of setting out those reasons he again re-stated the approach he was taking. For example, he said:

"The sole issue for me is whether the claimant is likely to succeed in a claim that the reason or principal reason for his dismissal was his trade union activities."

16. Against the background of the documentary evidence that he had received and the submissions he had heard the Employment Judge stated that there were "three factors" that he had particularly considered.
17. First, he considered the context of timing. He noted that the suspension of Mr Chacko had followed swiftly after the receipt of the union's notification that Mr Chacko would be involved in the process of balloting for trade union recognition. Ultimately, he was not persuaded that the issue on timing was "more than a coincidence".
18. He then dealt with the other two factors. The first he described as "consistency of approach". As his written reasons explain, what he was addressing was the expedition with which the employers had conducted the disciplinary investigation and procedures culminating in his dismissal. To the Employment Judge's mind, there had been a much less prompt response to Mr Chacko's own grievances. He concluded at paragraph [11] that "it is this difference in speed which combined with the ultimate sanction imposed is most startling".
19. The third factor that weighed with him was what he described as "consistency of sanction". Here he identified that the employer's case against Mr Chacko was one based on misconduct in the course of his employment, in particular in relation to his behaviour towards a supervisor. At paragraph [12] of his Judgment the Employment Judge identified that there had been serious allegations made against other employees which had not been addressed by the disciplinary process at all and which certainly had not culminated, at least on the material available to the Employment Judge, in a sanction as serious as dismissal.
20. He reached the following conclusion at paragraph [13]:

"In the context of the claimant's application I have considered the speed of the disciplinary process, in contrast to the grievance process, coupled with the fact that fellow colleagues appear not to have even been disciplined let alone dismissed for repeatedly submitting a more senior colleague to sexual comments or disciplined for using obscene language in describing her. In that context, I concluded that the claimant's claim was likely to succeed and I have therefore granted the application."

The appeal

21. By a Notice of Appeal dated 11 December 2012 the employers appeal. They do so, as paragraph 1 of the grounds of appeal explains, by reliance on an assertion that the Employment Judge "misconstrued or misapplied the statutory test" or "acted perversely". The grounds of appeal purport to give "particulars" of those assertions and they are developed in the skeleton argument prepared for the appeal by their solicitor Mr Thomas, who had also represented them before the Employment Judge.
22. The appeal is resisted by Mr Chacko who was represented before me, as he was before the Employment Judge, by Ms Cunningham of counsel. She invited me to dismiss the appeal on the basis that no error of law had been made by the Employment Judge and that his order should be upheld for the reasons that he gave.

Discussion and conclusions

23. In my judgment the correct starting point for this appeal is to fully appreciate the task which faces an employment judge on an application for interim relief. The application falls to be considered on a summary basis. The employment judge must do the best he can with such material as the parties are able to deploy by way of documents and argument in support of their respective cases. The employment judge is then required to make as good an assessment as he is promptly able of whether the claimant is likely to succeed in a claim for unfair dismissal based on one of the relevant grounds. The relevant statutory test is not whether the claimant is ultimately likely to succeed in his or her complaint to the Employment Tribunal but whether "it appears to the tribunal" in this case the employment judge "that it is likely". To put it in my own words, what this requires is an expeditious summary assessment by the first instance employment judge as to how the matter looks to him on the material that he has. The statutory regime thus places emphasis on how the matter appears in the swiftly convened summary hearing at first instance which must of necessity involve a far less detailed scrutiny of the respective cases of each of the parties and their evidence than will be ultimately undertaken at the full hearing of the claim.
24. Moreover, the statutory regime envisages only one "bite of the cherry". Because appeal to this EAT lies only on a point of law (compare and contrast an appeal to the Court of Appeal which may be pursued simply on the basis that the first instance judge was "wrong") there is no scope for a re-hearing or a re-consideration of the application for interim relief by a second tier appellate judge. As Ms Cunningham appropriately submitted, the advantage of placing the matter in the hands of the employment judges is that "they will have been honed by exposure to the full hearings of such claims in many other similar cases". It is for that reason that they are better placed than any appellate court to know whether or not a particular applicant for interim relief is or is not likely to succeed on his underlying claim.
25. It is against that background that I turn to the specific grounds upon which it is suggested that this Employment Judge erred in law. I record at the outset that the parties were agreed that the Employment Judge had correctly directed himself as to what was the applicable law and as to what was the applicable test on the question of likelihood. The complaint of the employers is that he failed, having made that self-direction, to apply the correct test in the right way in the circumstances of this case.
26. The first point developed in the skeleton argument for the employers and by Mr Thomas in his oral submissions was that the Employment Judge had failed to give adequate consideration to the evidence led by the employer in support of 'misconduct' as the true reason for Mr Chacko's dismissal. Mr Thomas took me to a considerable number of documents that had been before the Employment Judge to demonstrate, as he put it, there had been a thorough and detailed investigation of the allegations of misconduct by Mr Chacko which had been substantiated not only by the direct victim but also by a number of other members of staff. The thrust of his submissions was that the weight and extent of this evidence was such that, in the circumstances of this case, the employee would have a mountain to climb if he was going to demonstrate the likelihood that a claim for automatic unfair dismissal based on trade union reasons would ultimately succeed. Faced with the numerous statements made by the victim and the other members of staff, Mr Thomas submitted that Mr Chacko would need something in the nature of a "knock-out point" in order to demonstrate that it was likely that his claim would succeed rather than fail. He drew my attention to the assertion by the dismissing officer that the trade union activities of Mr Chacko had had nothing whatever to do with the dismissal and he reminded me that it had been acknowledged that the officer dealing with the appeal had not been "blamed" by Mr Chacko for dismissing his appeal on the basis of the material before her. In sum, Mr Thomas submitted that Mr Chacko would have to successfully establish at the ultimate hearing that there had been a very highly sophisticated conspiracy between all the relevant employees of the employer, as well as the dismissing and appeals officer, to bring about a "sham" misconduct dismissal. Putting those submissions as an asserted error of law, Mr Thomas argued that the Employment Judge having been taken to the documentation went off on what was essentially a frolic of his own in relation to the "three factors" mentioned in his Judgment. The Employment Judge failed to return, submitted Mr Thomas, to the balancing exercise that he ought to have undertaken of weighing up the strength of the employer's documented case against the three factors he had focused upon.
27. I can swiftly deal with this aspect of the appeal. In my judgment it is quite plain that the Employment Judge did not fail to undertake the balancing exercise required of him. He clearly went into the documentation in some detail. The thrust of the message to be spelled out of the documentation advanced by the employers was set out in terms before him as it was before me by Mr Thomas. There is a faithful account at paragraph [8] of the written reasons of the way in which the employer's case was put and the material on which it rested. To my mind it is quite impossible to successfully assert that the Employment Judge, having carefully considered the relevant documents and the submissions of Mr Thomas about them, then forgot all about the employer's evidence when making the ultimate decision as to whether, as it appeared to him, the claim was or was not likely to succeed. I accept the submissions pithily made by Ms Cunningham in this respect. She submitted that it would not be necessary for Mr Chacko to ultimately establish 'a conspiracy'. All he needed to show was that, whatever conduct or misconduct there may have been on his part, the principal or sole reason for his dismissal was his trade union activities. As Ms Cunningham further submitted, and as I accept, the thrust of Mr Thomas' argument before me was to the effect that the Employment Judge should have been satisfied that the material advanced by the employers, given its extent and depth, was such that it was inevitable that the claim would ultimately fall to be determined in only one way. In my judgment, the contention advanced by Mr Thomas did indeed go that far. The Employment Judge on an interim relief application is doing the best he can with the untested evidence advanced by each party. It is evidence of that nature that the Employment Judge must weigh against all the other factors in the case. No doubt, had there been more time for reflection, the Employment Judge could have added a further sentence or two to his Judgment indicating that the three particular factors had to be seen in the context of all the evidential material that had been placed before him. However, as this EAT has said in the Dandpat case it is "enough for the tribunal to indicate the essential gist of its reasoning" in these interim relief cases. In my judgment that it what this Employment Judge has done and I can detect no error of law from the way in which this limb of the appeal has been advanced.
28. The next challenge to the Employment Judge's Judgment focused on an alleged failure to specifically find or identify any "trade union connection" between the dismissal and the activities of Mr Chacko. In Mr Thomas' submission this was a fatal omission. It is not sufficient for an applicant for interim relief to establish that they will succeed in an unfair dismissal claim advanced on the general or usual basis. The Employment Judge must be satisfied that the claimant is likely to succeed in a claim for unfair dismissal in which it is established that the sole or principal reason is a trade union related reason. I accept Mr Thomas' submissions insofar as they set out the correct approach to be adopted by the Judge. But I cannot accept his submission that there was error in this case.
29. As I have already recorded, the Employment Judge set out the relevant grounds (in the alternative) on which the claim for automatic unfair dismissal was put. It is impossible in my judgment to assert that he did not identify the trade union activity flavour of the way in which the underlying claim was being put. Not least, as he records in paragraph [10] of his Judgment, he found that "the respondent was unequivocally against trade union recognition". The high water mark of Mr Thomas' submission was that in the same paragraph the Employment Judge had rejected a suggestion advanced by Mr Chacko that another employee had been likewise subjected to dismissal by reason his trade union activities and went on in the next following paragraph (paragraph [11]) to reject a contention that there was any connection between the timing of the dismissal and the upcoming ballot on union recognition.
30. To my mind the Employment Judge was perfectly entitled to weigh on the one hand the employer's pronounced attitude to trade union recognition and those other findings. He was also obliged to have regard to the fact that this class of interim relief application can only be made if supported by a requisite certificate of the trade union concerned. In this case, the Employment Judge had before him two such certificates both dated 6 September 2012. The first from the Deputy Regional Secretary of Unite the Union identified that the author had "reasonable belief that [Mr Chacko] was dismissed on grounds which relate to union membership or activities". The second letter from the Regional Officer expressed the view that that officer believed that the claim for unfair dismissal on grounds of trade union membership/activity was well founded and likely to succeed and that the officer would "fully support his claim".
31. Those matters go into the balance in weighing the question for the Employment Judge as to whether there may or may not be a "trade union connection" between the dismissal and the activities of the claimant. It follows that I reject the proposition that there was 'nothing' to sustain the Employment Judge's conclusion that the claim for unfair dismissal for trade union reasons was likely to succeed.
32. Next, Mr Thomas criticised the Employment Judge for adopting the two forms of 'comparator exercise' that he did in applying the second and third of the factors referred to in his Judgment. Mr Thomas took me to well established authority in unfair dismissal cases on the dangers of cross applying the facts of one case to the circumstances of a different claimant's case. I was referred to in particular to Hajiannou v Coral Casinos Ltd [1981] IRLR 352 and Paul v East Surrey District Health Authority [1995] IRLR 305. I regret that I found those authorities of little assistance in the circumstances of this case. I remind myself that the Employment Judge was undertaking a swift summary assessment of the case as it appeared to him on the papers and on the arguments advanced. This was not a situation in which it was necessary for him to have regard to the careful nuances of reaching a final conclusion in an unfair dismissal claim. He simply had to do the best he could on the material before him. I find no inconsistency between the approach he took and the decisions in the authorities to which I was referred.
33. Mr Thomas moved from that general criticism of the Employment Judge to focus his challenge on both of the second and third factors which had influenced the Employment Judge.
34. As to the second factor (the comparative speed to which the grievance process, on the one hand, and the disciplinary process, on the other, were handled) Mr Thomas submitted that this was a comparison between chalk and cheese which ought never to have been undertaken. He urged upon me that procedures for discipline and grievance are different in nature. Further, he sought to show me, through the various documents, that the Employment Judge had gone too far in suggesting that there had been over-expeditious treatment of the disciplinary matter or over-slow handling of the grievance procedures. He sought to demonstrate that only one aspect of the grievance procedure had been delayed and that delay was not for a significant period and was explicable for innocent reasons. He submitted that the Employment Judge had misunderstood the circumstances of the urgency with which, over the short period immediately prior to his suspension, the complaints against Mr Chacko had been investigated.
35. In my judgment, this was supremely a matter for assessment by the Employment Judge on the material he had before him. Whilst I accept the submission that there is no direct parallel between the handling of a grievance and the organisation and undertaking of a disciplinary process, the fundamental point upon which the Employment Judge was alighting was that the facts appeared to show (and that was the relevant test at the stage the case had reached before him) that the employers had acted with alacrity once they had become seised of a matter upon the basis of which they might discipline Mr Chacko.
36. Mr Thomas then turned to the third ground or factor which had influenced the Employment Judge, that is to say, the consistency of sanction for misconduct as between Mr Chacko on the one hand and other employees of the employers on the other. Mr Thomas reminded me again of how careful an employment tribunal must be in making comparisons between what will inevitably be different cases on their facts. Mr Thomas prayed in aid again the guidance to be taken from the Paul and Hajioannou cases. However, for essentially the same reasons I must hold that this aspect of the employers' challenge likewise fails. The Employment Judge was doing the best he could on the material before him. That material plainly indicated that what Mr Chacko was being accused of in respect of misconduct was a degree of harassment and bullying of a superior employee. To Mr Thomas' mind this was a particularly nasty or unpleasant case of harassment of a person who was (for personal reasons) a vulnerable supervisor. However, the Employment Judge took into account material before him that showed that, on the face of it, much more serious allegations of direct and crude abuse to a female member of staff and, moreover, sexual harassment of a female member of staff had not been met with any sanction or investigation at all. The Employment Judge was in my judgment entitled to draw an inference from that contrast or comparison.
37. Mr Thomas' submissions drew together his criticism of the Employment Judge in relation to the "second and third factors" by indicating that in any event neither of them had anything to do with asserted trade union activities. However, I accept Ms Cunningham's submission that the effect of these two factors was in the Employment Judge's mind to cast significant doubt on what the employers were advancing as the ostensible reason for dismissal i.e. gross misconduct to such extent as to warrant an immediate dismissal.
38. Mr Thomas concluded his submissions to me by drawing upon aspects of all of the previously advanced limbs to the appeal in order to support a contention that the Judgment of the Employment Judge had been perverse. He acknowledged that a perversity challenge had to surmount a high threshold in order to be successful but he submitted that authorities such as Yeboah, setting a marker that such an appeal must be truly exceptional in order to succeed, were to be confined to the class of case in which the Tribunal had weighed and assessed evidence and in particular oral evidence from the parties. Mr Thomas submitted that this was not a case in which any oral evidence fell to be assessed. There was no question of assessing the credibility of any witnesses and therefore one could simply look at all the material that had been before the Employment Judge and draw the conclusion that his decision was a decision which no reasonable employment judge could have reached.
39. In my judgment, this appeal tribunal should be extremely reticent to make a finding of perversity in this class of case i.e. an application for interim relief dealt with on a summary basis before an employment judge. As I have already indicated, Parliament has entrusted an assessment to the employment judge on the front line. The statutory rubric requires the judge to assess how the matter "appears" to him or her. This Employment Judge has in my judgment properly set out the relevant law and applied it to the factual material and submissions that he received. Whether I would have made the same judgment myself on the same material is nought to the point. Mr Thomas at some stages in his argument came dangerously close to inviting me essentially to substitute my judgment for that of the Employment Judge. Any such attempt should be strongly resisted. It would only be in the plainest case, where the employment judge had reached a conclusion that no right thinking employment judge could possibly have reached that this appeal tribunal should interfere on a perversity basis in this class of case.
40. It follows that as I have rejected each element of the appeal as pursued by the employers, this appeal must be dismissed.
41. I cannot leave this judgment without recording that Mr Thomas, in the course of his submissions, repeatedly urged upon me the extent of the financial liability the employers were incurring as a result of the Employment Judge's Judgment and that there had been significant developments in the circumstances, not least that (1) the hearing of the underlying claim had been adjourned and (2) Mr Chacko had found alternative employment elsewhere. I did not allow those matters to sway me in this appeal not least because of the provision made in the statutory regime for applications for variation or discharge of the order made. It seems to me that if the employer has a case that it is being unduly prejudiced by delay or by the financial effects of an extended order those are matters that are best pursued by an application to the first instance Employment Judge for which the statute provides.