Employment Flash - 31st December 2008
Something not too heavy just before the New Year revels, a few words from Burton J on the question of perversity (often the last resort of the desperate seeking a ground of appeal)...
Chambers-Mills v Allied Bakeries [2008] UKEAT 0165 08 LA
AB's application to strike out C-M's complaint of disability discrimination was successful as the ET considered C-M's conduct of proceedings had been unreasonable and she had failed to comply with orders of the ET. The ET recognised that the power to strike out was draconian but that both of the requirements, that there had been deliberate and persistent disregard of required procedural steps and that there could not be a fair trial, had been made out; the EAT confirmed that it was either requirement rather than both that had to be made out (Blockbuster Entertainment Ltd v James [2006] IRLR 630).
In considering the issue of perversity that was raised by C-M on appeal Burton J reiterated the high threshold required to make out such a ground: "There can in rare circumstances be such a concatenation of errors of fact, or so gigantic a howler, that such error might amount to perversity, but perversity, as has been made clear in so many recent authorities in the Court of Appeal [e.g. Yeboah v Crofton [2002] IRLR 634] is a very narrow ground... Perversity is a general heading simply for a decision to which no reasonable tribunal could have come, and that is usually arrived at by making the kind of gigantic mistake to which we have referred, but perversity it must still be, and the scope for perversity is still very limited." There is no separately parsing perversity into categories where there has been a failure to take material matters into account, or that immaterial matters were taken into account, or that no reasonable tribunal could have come to the conclusion that it did. It is not a perversity argument to submit that an ET has not taken any adequate account of a matter, the submission has to be that it has taken no account.
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