Judgment approved by the court Vaultex UK Ltd v Bialas dismissal. On appeal to the EAT, it was contended for the employer that, while the tribunal had given itself a correct self-direction as to the law, nevertheless the language used in the substantive part of its decision showed that it had, in reaching its conclusion, committed the substitution error. The EAT upheld that appeal. It also substituted a decision that the dismissal was fair. The employee appealed to the Court of Appeal. Mummery LJ said this at [12]: “A summary of the allocation of powers and responsibilities in unfair dismissal disputes bears repetition: it is for the employer to take decision whether or not to dismiss an employee; for the tribunal to find the facts and decide whether, on an objective basis, the dismissal was fair or unfair; and for the Employment Appeal Tribunal (and the ordinary courts hearing employment appeals) to decide whether a question of law arises from the proceedings in the tribunal. As appellate tribunals and courts are confined to questions of law they must not, in the absence of an error of law (including perversity), take over the tribunal’s role as an “industrial jury” with a fund of relevant and diverse specialist expertise.” 22. Further on, he said this: “26.This is not an easy case. Tribunals with wide legal and practical experience of work situations and of the operation of unfair dismissal law have reached opposite conclusions. The appeal tribunal set aside the tribunal’s order, which the council says was wrong. This court is asked to set aside the appeal tribunal’s order, which Mrs Fuller says was wrong. Perhaps it would not be out of place to make a few general comments about these differences, which lawyers and non-lawyers sometimes find unsatisfactory, even inexplicable. 27. Unfair dismissal appeals to this court on the ground that the tribunal has not correctly applied section 98(4) can be quite unpredictable. The application of the objective test to the dismissal reduces the scope for divergent views, but does not eliminate the possibility of differing outcomes at different levels of decision. Sometimes there are even divergent views amongst appeal tribunal members and the members in the constitutions of this court. 28. The appellate body, whether the Employment Appeal Tribunal or this court, must be on its guard against making the very same legal error as the tribunal stands accused of making. An error will occur if the appellate body substitutes its own subjective response to the employees’ conduct. The appellate body will slip into a similar sort of error if it substitutes its own view of the reasonable employer’s response for the view formed by the tribunal without committing error of law or reaching a perverse decision on that point. 29. Other danger zones are present in most appeals against tribunal decisions. As an appeal lies only on a question of law, the difference between legal questions and findings of fact and inferences is crucial. Appellate bodies learn more from experience than from precept or instruction how to spot the difference between a real question of law and a challenge to primary findings of fact dressed up as law. 30. Another teaching of experience is that, as with other tribunals and courts, there are occasions when a correct self – direction of law is stated by the tribunal, but then overlooked or misapplied at the point of decision. The tribunal judgment must be read carefully to see if it has in fact correctly applied the law which it said was applicable. The reading of an employment tribunal decision must not, however, be so fussy that it produces pernickety © EAT 2024 Page 11 [2024] EAT 19