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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Mensah-Lartey v Surrey Heartlands NHS Trust [1998] UKEAT 930_98_0110 (1 October 1998) URL: http://www.bailii.org/uk/cases/UKEAT/1998/930_98_0110.html Cite as: [1998] UKEAT 930_98_110, [1998] UKEAT 930_98_0110

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APPEARANCES

 

For the Appellant	MR D McCARTHY (of Counsel) Instructed by: Ms B Martial Messrs Sampson Wood Solicitors Bank House 209 Merton Road South Wimbledon London SW19 1YS


 


LORD JOHNSTON: This is a preliminary hearing in the appeal at the instance Mr G Mensah-Lartey in respect of a finding of the Industrial Tribunal in respect of a claim made by him alleging breach of contract against Surrey Heartlands NHS Trust which were his employers for a relevant period of time between 1988 and 1996.

Mr McCarthy who appeared for the appellant at this preliminary hearing, sought to amend his ground of appeal initially by substituting the first ground, for a ground of perversity in respect of the content of the tribunal's decision, but also sought to add a third ground to the effect that he wished to introduce fresh evidence which would cast doubt on some of the findings of fact made by the tribunal. On further investigation by us, he indicated that that evidence which he would seek to introduce related to the finding made by the tribunal in paragraph 16 with regard to the number of people who apparently successfully appealed their gradings.

From the decision of the tribunal the background would appear to be that for personal reasons the appellant sought transfer from the day shift to the night shift which was granted. However, he maintains that he was in ignorance of the fact that the grading which was one of 'D' grade at the night shift could be appealed and his principal complaint both before the Industrial Tribunal and renewed before us, is that the employer was in breach of contract by failing to inform the appellant of his right to appeal his grading and that consequently they are liable to pay compensation in respect of that breach. He referred in this respect to Scally v Southern Health and Social Services Board [1991] ICR 771. At the end of the day he quite rightly however accepted that the issue central to the case was whether or not the tribunal had held it proved that the appellant was in ignorance of the very fact which he claims to be the right in respect of his contract.

The most cursory examination of the findings of fact of the tribunal make it absolutely clear that they were focused upon the whole question of state of mind and knowledge of the appellant, and indeed, they find particularly from paragraphs 14 onwards that various explanations put forward in evidence by the appellant as to his position and state of knowledge were not acceptable to them as a matter of credibility. It is perfectly clear to us against that background and some general findings to be found particularly in paragraph 13, that the tribunal properly addressed their minds to the issue of knowledge and determined upon the facts that it was not established, to put it negatively, that the appellant was in ignorance of the material fact upon which he bases his claim.

It has been said many times as this tribunal that the word "perverse" does not cover an attempt being made at this level to reargue issues of fact which were properly focused before the tribunal at first instance considering the evidence. Perversity is a far higher test than a mere suggestion that the tribunal could or indeed might have reached the opposite conclusion. In our opinion it is manifestly clear in this case that the appellant's position was fully considered with regard to his state of knowledge and was determined as a matter of credibility against his interests and against his case. This tribunal, as a matter of constitution, is quite unable to reconsider such questions of fact.

In these circumstances we are entirely satisfied that this case raises no question of law properly to be considered at a full hearing and the appeal will be dismissed.