In the case of Cygnet Behavioural Health Ltd v Britton (2022), the Employment Appeal Tribunal (EAT) have overturned an Employment Tribunal's decision to allow a claim in out of time on the grounds that the decision was perverse.
Decision To Allow Case In Out Of Time Was Perverse
The Claimant in this case had presented his claim 62 days out of time. However, the Employed Tribunal (hereafter referred to as the "ET") allowed the claim in out of time on the basis that it held that it was not reasonably practicable for the Claimant to present his claim on time due to several extenuating circumstances, which included mental health issues, his dyslexia, a lack of knowledge over the time limits, and the fact that he was focus of attention at the time had been on dealing with fitness to practice (FTP) proceedings that had been commenced against him.
Nevertheless, the EAT disagreed and overturned the decision to allow the case in out of time on the basis that it was perverse.
Test
The test for a finding that a decision is perverse was set out by Mummery J in the case of Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440, who said: "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."
Mummery LJ added in the case of Yeboah v Crofton [2002] that the test would only be met "where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached… There was an increased risk that the appellate body's close examination of the evidence and of the findings of fact by the employment tribunal may lead it to substitute its own assessment of the evidence and to overturn the findings of fact made by the Employment tribunal."
Claim Dismissed
Whilst acknowledging that the perversity test represents a "very high hurdle", the EAT held that the decision to allow the case in out of time by the ET met the test for perversity in that during the primary limitation period, the Claimant had not only managed to handle his FTP case, but he had also managed to go through the early conciliation process with ACAS, appeal against his dismissal, move house, obtain a position as a locum, and subsequent to that, obtain another temporary job.
Given this, the EAT concluded that there was no reason as to why the Claimant could not have found out what the time limit was to ensure that his claim was not brought out of time, and that "the conclusion that was reached [by the ET] was so irrational it has to be perverse."
The EAT added: "In my judgment, it flies in the face of reason to conclude that the claimant was able to do all of this and yet was not able to ask somebody so as to find out the time limits for a tribunal claim. This is so especially after he did so with Mr Molloy in February and was told by Mr Molloy in mid-February that he had to bring his claim as soon as possible"
Accordingly, the EAT substituted its own judgment that the claim was out of time. Hence, the Claimant's claim was formally dismissed on the basis that it had been brought out of time.
