Appeal No. EAT/399/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 22 October 1993
	Judgment delivered on 14 February 1994

	Before

	HIS HONOUR JUDGE J BULL QC

	MR D G DAVIES

	DR D GRIEVES CBE

SANDOWN PIER LTD	APPELLANTS

MR B MOONAN	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR G WEDDELL
(of Counsel)
Solicitors
Messrs L W Belcher & Co
Westbrook
Bridgefoot Path
Emsworth, Hampshire
PO10 7EA

For the Respondent	MR R L DAVEY
(of Counsel)
Messrs Merry & Co
Solicitors
73 Union Street
Ryde
Isle of Wight
PO33 2LN

HIS HONOUR JUDGE BULL QC       This is an appeal against the Decision of the Industrial Tribunal sitting at Southampton on 18th December 1992 under the Chairmanship of Mr J A E Gorst.  Full Reasons for that decision were promulgated on 8th March 1993.

	Mr Weddell who has presented this case with great skill, force and attractiveness accepted at the outset that the Applicant before the Tribunal, Mr Moonan, had been unfairly dismissed, but challenged the assessment of the award made by the majority of the Tribunal.  Mr Weddell makes trenchant criticism of the majority view and submits that the view of the Chairman is preferable, namely that it is inconceivable that a man of the Applicant's character will still be out of work in 15 years' time.  Mr Weddell further points out that the majority view is based upon assertion unsupported by any reasoning or justification for the view which they took.

	The evidence is in short compass.  After the Tribunal reached the conclusion that the Applicant had been unfairly dismissed he was recalled and gave evidence that since the effective date of termination of his employment on 22nd July 1992 he had earned nothing and was at the date of the hearing 50 years of age.  He then added in answer to a question, this reply:
		"I can't say when I'll be back in comparably paid employment."
On cross-examination he explained that he had sought 10 jobs and was qualified as a carpet fitter, HGV driver and a painter and decorator.  He put unemployment upon the Isle of Wight at 20%.

	Whatever views we may have of the assessment made by the majority of the Industrial Tribunal, we have to remind ourselves that jurisdiction upon appeal is limited to questions of law by S.136 of the Act, and that it is not right that questions of fact should be dressed up as points of law: see Hollister v. N F U [1979] IRLR 238 at 241 per Lord Denning, Master of the Rolls.  We further remind ourselves that the lay members of an Industrial Tribunal have a vital role in providing the knowledge of the industrial background against which the relevant legislation was enacted, and further, they play a full part in the decision-making process.  Mr Weddell is driven to argue that the assessment was perverse in that no reasonable Industrial Tribunal could have reached such a decision.  In that context the importance of the contribution of the lay members can hardly be overstated.

	The Employment Appeal Tribunal can interfere as Lord Donaldson MR pointed out in British Telecommunications v. Sheridan [1990] IRLR 27 at 30, if it is satisfied that the Industrial Tribunal has misdirected itself as to the applicable law, or if there is no evidence to support a finding of fact, since the absence of evidence to support a finding of fact has always been regarded as a pure question of law.  It can also interfere if the decision is perverse.

	We can detect no error of law in the way in which the majority assessed what is essentially a matter of fact, namely the question of obtaining further employment.  Evidence to support their conclusion is perhaps slight: the Applicant, 50 years of age, had not secured employment despite seeking 10 positions and asserted that he could not say when he would be in comparably paid employment citing as a background the local position upon the Isle of Wight that unemployment was running at 20%.

	In the well-known case of Piggott Bros. & Co Ltd v. Jackson [1991] IRLR 309 at 312, Lord Donaldson, MR, gave guidance upon the approach of an appellate court:
		"...It does not matter whether, with whatever degree of certainty, the appellate court considers that it would have reached a different conclusion.  What matters is whether the decision under appeal was a permissible option.  To answer that question in the negative in the context of employment law, the EAT will almost always have to be able to identify a finding of fact which was unsupported by any or a clear self-misdirection in law by the Industrial Tribunal.  If it cannot do this, it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option and has to be characterised as `perverse' ".

	We are reluctantly driven to the conclusion that the assessment by the majority cannot be said to be unsupported by any evidence, nor is there evidence upon the reasons set out in paragraph 12 any self-misdirection in law.  Whatever therefore might have been the decision of the EAT, had this Appellate Tribunal been sitting at first instance, we have to consider this matter upon the evidence before the Industrial Tribunal.   The decision of the majority of that Tribunal is, in our judgment, a permissible option, and there is no ground upon which it would be right to interfere.  This appeal must therefore be dismissed, and we so dismiss it.