A display of nude images at a workplace may be discriminatory as sexual harassment, but some common sense was needed. The display of soft-porn photographs in a workplace need not of itself be subjecting a female worker to a detriment.
Mummery J P considered an appeal on the grounds of perversity: ‘Whenever an appeal is based on the perversity ground, this Tribunal must be extremely cautious not to conclude that the decision of the Industrial Tribunal is flawed because the Appeal Tribunal would have reached a different conclusion on the evidence or thinks that another Industrial Tribunal would have reached a different conclusion on the evidence. An appeal should not be allowed on this ground simply because the Employment Appeal Tribunal disagrees with the Industrial Tribunal as to the justice of the result, the merits of the case or the interpretation of the facts. This Tribunal should only interfere with the decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is ‘irrational’, ‘offends reason’, ‘is certainly wrong’ or ‘is very clearly wrong’ or ‘must be wrong’ or ‘is plainly wrong’ or ‘is not a permissible option’ or ‘is fundamentally wrong’ or ‘is outrageous’ or ‘makes absolutely no sense’ or ‘flies in the face of properly informed logic’. This variety of phraseology is taken from a number of well-known cases which describe the circumstances in which this Tribunal (and higher courts) have characterised perversity. The result is that it is rare or exceptional for an appeal to succeed on the grounds of perversity. The reason why it is a heavy burden to discharge is that it has been recognised by those with wide experience and practical wisdom that there are many factual situations arising in the field of industrial relations, including sex discrimination, in which different conclusions may be reached by different tribunals, all within the realm of reasonableness. It is an area in which there may be no ‘right answer’. The consequence of this approach, also approved in cases of high authority, is that it is not appropriate or fruitful to subject the language of the decision of the Industrial Tribunal to ‘meticulous criticism’ or ‘detailed analysis’ or to trawl through it with a ‘fine tooth comb’. What matters is the substance of the Tribunal’s decision, looked at ‘broadly and fairly’ to see if the reasons given for the decision are sufficiently expressed to inform the parties as to why they won or lost the case and to enable their advisers to identify an error of law that may have occurred in reaching the conclusion. Viewed in that way, the decision of the Industrial Tribunal is not perverse.
We recognise that in this area no one is better placed to make a decision on the facts of a particular case than the Industrial Tribunal. It heard evidence from the witnesses, saw the material which Miss Stewart found to be offensive and considered the detailed arguments on the law and the facts. There is, of course, room for disagreement among different groups of people, such as Tribunals, as to what is or is not less favourable treatment and as to the extent to which women in the workplace are vulnerable to such treatment.’
Mummery J P
Ind Summary 19-Sep-1994, Times 06-Jul-1994, [1994] IRLR 440, [1994] UKEAT 683 – 93 – 0405
Bailii
Sex Discrimination Act 1975 6(2)(b)
England and Wales
Cited by:
Cited – Turner Coulston (A Firm) v Janko EAT 3-Sep-2001
The appellant employers suggested that the finding of unfair dismissal was perverse in having rejected uncontested evidence.
Held: The standard for such a claim was high – that the decision was ‘plainly wrong’ or similar. That standard was not . .
Cited – JJ Food Service Ltd v Zulhayir CA 16-Oct-2013
The employer appealed against the successful appeal by the employee to the EAT on the grounds of perversity notwithstanding that the parties agreed the facts found.
Held: The appeal was allowed. . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Leading Case
Updated: 10 November 2021; Ref: scu.89553