Who's telling the truth?

Woodhouse School v Webster

Employment tribunals often hear cases where there is a conflict of evidence. In Woodhouse School v Webster, the Court of Appeal said that tribunals can draw inferences, which are different from either party’s case, from the evidence they hear in order to reach their decision.

Basic facts

Mr Webster was the manager of Woodhouse School (owned by Mr Pat Moore and his wife) for severely disturbed girls aged between nine and 18. In June 2006 he offered a job to Rowan Ward who had been deaf since birth and wore hearing aids although her deafness had no impact on her work.

Mr Moore had three informal discussions with him about her recruitment and then invited him to a meeting on 11 August 2006 with his wife and an HR specialist. Mr Webster anticipated, from his previous discussions with Mr Moore, that he would be instructed to dismiss Ms Ward and took a tape recorder to the meeting, to protect his own position. Mr Webster managed to record part of the meeting during which Mr Moore was heard to say that he wanted “to discuss the implications of having her on board and employing her and how we go about not employing her really”.

Mr Webster claimed that he was then explicitly told to get rid of Ms Ward because Mr Moore was concerned she might bring a claim against the school, leaving it exposed to uncapped liability for compensation. Rather than carry out an illegal instruction, Mr Webster resigned on 1 September 2006 and brought a claim of constructive unfair dismissal as a result of a breach of trust and confidence.

The school gave a different reason for Mr Webster’s resignation; they said that he resigned because of question marks over his performance.

The crucial question was - why did Mr Webster resign?

Tribunal and EAT decisions

The tribunal rejected Mr Webster’s evidence, that Mr Moore had explicitly told him to dismiss Ms Ward, but said that the cumulative effect of the various discussions he’d had with Mr Webster, including the meeting, amounted to an instruction to dismiss her.

The EAT dismissed the school’s appeal.

The school appealed again, arguing that the tribunal had rejected Mr Webster’s version of events but had then gone on to construct another one for him on a different version of the facts without giving the school a chance to refute those facts.

Court of Appeal decision

The Court of Appeal dismissed the school’s appeal, saying that “in an adversarial contest neither side necessarily has a monopoly of the whole truth. An impartial tribunal may discern from the evidence, as it unfolds in the course of the hearing, that the truth on a particular issue probably lies somewhere between the positions of the parties”.

In the event of a conflict of evidence, the tribunal has to decide which witness it finds more credible, using the balance of probabilities as the standard of proof.

If it then interprets the evidence in a way that differs from that argued by either side, it should ensure that the parties get the chance to call further evidence or make further submissions to avoid any procedural unfairness.

In this case, the school had had ample opportunity both to challenge Mr Webster’s evidence and the inference drawn by the tribunal from the other evidence presented. Its complaint of procedural unfairness therefore failed.

It was also open to the tribunal to accept, on the balance of probabilities, that Mr Webster's reason for his resignation was the instruction (as he understood it) from Mr Moore to dismiss Ms Ward. “Oral evidence of discussions does not have to satisfy standards of perfection, only to be more probably true, in all the circumstances, than the evidence given on the other side”.

In any event, there were sufficient other facts that entitled the tribunal members to draw an inference that the reason for his resignation was an instruction to dismiss Ms Ward (as perceived by Mr Webster), as opposed to the issue of his alleged poor performance.

The Court of Appeal thought it unlikely that a majority of the tribunal could have been persuaded to reach a different interpretation of the evidence as a whole and the appeal was therefore dismissed.