El-Bashary v Al-Ahram International [1994] UKEAT 541_94_0311

EAT
El-Bashary v Al-Ahram International
[1994] UKEAT 541_94_0311 · 1994-11-03

JUDGE BULL QC :

This is the preliminary hearing of an Appeal by Osama El-Bashary against the decision of the Industrial Tribunal sitting at London (South) on the 24th May 1993 by which it dismissed the Applicant's claim of constructive dismissal. The full reasons were sent to the parties on the 12th July 1993.The matter has been put before us by Mr Szerard, who has conducted the case with conspicuous ability and commendable clarity, upon the ground that looking at the evidence before the Industrial Tribunal, their decision was perverse. He instances paragraph 7 of the Industrial Tribunal's reasons which is in this form:
"The Tribunal could not on the paucity of evidence provided come to the conclusion that there had been any breach of a fundamental term of the contract. Whilst a reduction in remuneration might have shown such a breach, in this case the Respondents case was that the new arrangements had been discussed with and agreed by employees."
He points out with force that the only evidence before the Industrial Tribunal was that of the Applicant and, he says, that unjustly and wrongly the Industrial Tribunal discounted the Applicant's evidence, and chose not to accept it. In the circumstances, there having been no evidence whatsoever from the Respondents, he submits that such a decision must be characterised as perverse. He frankly concedes that the difficulty in the appeal is that the documents were not before the Industrial Tribunal in time, but what matters more, they were in arabic and were not translated so that the Industrial Tribunal might have regard to them.We have nonetheless looked at the translation into English of those documents, but we have to point out that they were not in evidence before the Industrial Tribunal. We remind ourselves of what in fact was said by Lord Donaldson of Lymington, Master of the Rolls in the now well known case of Piggott Brothers & Co. Ltd v Jackson and others reported in the ICR [1992] page 85, the passage which I cite being found at page 92 E:
"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 appeal tribunal will almost always have to be able to identify a finding of fact which was unsupported by any evidence 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"."
The Industrial Tribunal had the privilege, which is of course, completely denied to us because we are a tribunal of law not of fact, of seeing the Applicant give evidence of hearing his evidence tested in cross-examination. The Tribunal pointed out in paragraph 7 of their reasons that it:
"..... could not on the paucity of evidence provided come to the conclusion that there had been any breach of a fundamental term of the contract."
In those circumstances, it would be quite idle for us to say that we have a better view than that of the Industrial Tribunal. We can detect no error of law in this Industrial Tribunal - most certainly we cannot say that in any of the respects which are put forward so succinctly and carefully by Mr Szerard, that this Industrial Tribunal acted in a way and reached a conclusion that no reasonable Tribunal could have done.There is no other respect which occurs to us in which they misdirected themselves, it follows therefore that there is no point of law here, and that this Appeal must be dismissed.