England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Thursday 29th November, 2001

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal. The application is made by Mr Hughes. He is the managing director of the Camdon Group Ltd, the respondent in the Employment Tribunal in proceedings brought by Miss Adrienne Lamb for unfair dismissal and sex discrimination.
2. The decision which the Camdon Group wish to appeal is that of the Employment Appeal Tribunal. On 26th April 2001 the Employment Appeal Tribunal dismissed the appeal of Camdon Group Ltd on the ground that there was no error of law in the decision of the Employment Tribunal at the hearing in Cardiff on 21st January 2000.
3. Following that hearing, the Employment Tribunal had sent to the parties their extended reasons for allowing the claims made by Miss Lamb. The extended reasons, which run to 16 paragraphs, explain the unanimous decision of the Employment Tribunal that: first, Miss Lamb was unfairly dismissed, but contributed 100 per cent to her own dismissal and therefore was awarded no compensation; and second, that Miss Lamb had established sex discrimination, in consequence of which the Tribunal ordered Camdon Group Ltd to pay to her compensation in the sum of £2,832.50.
4. Mr Hughes submits that there were serious errors in the procedure of the Employment Tribunal. There were administrative difficulties. There were also, he said, findings made by the Tribunal which are insupportable and which would not justify a conclusion that there had been unfair dismissal or sex discrimination.
5. Before I deal with Mr Hughes' detailed submissions, it is necessary to fill in more of the background to these proceedings.
6. Miss Lamb was employed by Camdon Group Ltd as a care worker in the Taibach Nursing Home in Port Talbot from October 1995 until she was dismissed on 13th May 1999. The reason given for her dismissal was gross misconduct.
7. These circumstances led Miss Lamb, who had become pregnant in the latter stages of her employment, to begin these proceedings by the application to the Tribunal on 30th July 1999. In her form IT1 she claimed unfair dismissal for asserting a statutory employment right, harassment and sex discrimination. Her case is set out in more detail in box 11 of the form.
8. Mr Hughes, on behalf of the Camdon Group, submitted a notice of appearance claiming that there was no basis for the proceedings. He wrote in the IT3 form, dated 16th August 1999:

"Dismissal was justified on the grounds of repeated gross misconduct.

We reject completely all allegations made in the applicant's statement and will provide witnesses and witness statements at a Tribunal hearing."

9. Unfortunately, there appear to have been problems in the arrangements for the Tribunal hearing. Mr Hughes has dealt with these in his very helpful typed statement, which he read out to me for a period of 20 minutes in this hearing. Under the heading "Administrative problems of the Industrial Tribunal staff at Cardiff", he explained that the first notification he had received for a hearing was that it would be held on 18th October 1999, for which date he was prepared to attend and give evidence on behalf of the company. It appears that a phone call was made the day before the hearing by the office at the Tribunal in Cardiff, saying that the hearing had been cancelled, the Chairman having suffered a bereavement. It proved impossible to find a replacement.
10. There was a further attempt to fix a hearing for 10th December, but Mr Hughes knew nothing of that proposed hearing. Having been given less than seven days' notice, he complained about the fixing of that date. The staff at the office agreed to re-schedule a hearing for another date. That date was 21st January, on which the hearing actually took place. Again misfortune struck because, as Mr Hughes explained, there was at that time a severe flu epidemic. Residents in the home were ill, staff were off sick and it was extremely difficult to cover the 24 hour shifts at the nursing home. Nursing staff agencies were approached and, because of their own staff illnesses, were unable to help. The result was that two of the witnesses whom Mr Hughes was proposing to call to give evidence, a nurse in charge, Mrs Chivers, and a care worker, did not attend the Tribunal hearing on 21st January. Mr Hughes did, however, attend. He presented written statements signed by the staff members. Those statements are included in the bundle of documents.
11. I agree with Mr Hughes that that was an unfortunate start to the hearing of the proceedings. The hearing nevertheless went on. Mr Hughes has another batch of complaints about the way in which the hearing was conducted. He deals with this under the heading "bias and prejudice", alleging that there is clear evidence of bias and prejudice on the part of the Chairman, particularly in relation to the way in which his evidence was dealt with in comparison with the way that the evidence of Miss Lamb was dealt with.
12. He is particularly forceful on the point that the Chairman had described his evidence as "hearsay" against Miss Lamb's evidence, which was described as direct evidence which they had no reason to disbelieve. Mr Hughes explains that his evidence was not hearsay. He was giving evidence directly about instructions which he had given to Miss Lamb and her response to those instructions, that it was unacceptable to describe his evidence as hearsay and that is relied on as denoting bias on the part of the Chairman.
13. I come next to the result of the hearing. In addition to complaining about the difficulties in getting to a hearing and then the procedure adopted at the hearing, Mr Hughes makes forceful points about the conclusions of the Tribunal that Miss Lamb was unfairly dismissed and was the victim of sex discrimination.
14. On the unfair dismissal the Tribunal did come to a conclusion which, in my experience, is certainly an unusual one; i.e on the one hand, they held that Miss Lamb was unfairly dismissed - and that, Mr Hughes says, means that his company has been stigmatised as an unreasonable employer, which he submits it is not - and, on the other hand, they held that there was 100 per cent contribution to the fact of dismissal by Miss Lamb, thereby disentitling her to compensation. It is certainly common in Employment Tribunals for a contributory factor to be found in unfair dismissal, thereby reducing the amount of the compensation award by a percentage. It is unusual to find 100 per cent contribution, though by no means unknown. I can see that a lay person might think that the finding of 100 per cent contribution is really, on the face of it, contradictory of a finding of unfair dismissal, because it indicates that the reason for the dismissal was not unfairness on the part of the employer but the conduct of the employee. So Mr Hughes says that there must be a legal flaw in the finding of unfair dismissal. I can see the basis on which he advances that argument.
15. Secondly, he criticises the finding of sex discrimination. In the reasoning of the Tribunal the sex discrimination claim is dealt with in paragraphs 11 and 12. The substance of the decision of the Employment Tribunal was that there was an inference of sex discrimination to be made from facts which took the form of reprimand for absences which any reasonable employer would have suspected were pregnancy-related; disregard for her health in requiring her to lift; failing to pay her for antenatal time off; and warnings with regard to instructions which had not yet been given as to table-laying because of her pregnancy. The Tribunal said in paragraph 11:

"These factors all taken together with the pregnancy situation gave rise in our view to an inference that this lady was being treated unfavourably on the ground of her pregnancy. There has been no evidence whatsoever from Mrs Chivers or anyone else who had direct knowledge of the pregnancy situation and no-one to provide an explanation for these material facts."

16. They then proceeded in paragraph 12 to hold that, in the absence of any satisfactory explanation on the part of Camdon Group Ltd, Miss Lamb was subjected to a detriment which amounted to less favourable treatment. Citation was made of the case of Webb v EMO Cargo [1995] ICR 1021, as to the basis of finding sex discrimination on the ground of pregnancy. They concluded:

"Accordingly on the basis of inference drawn from the material facts we conclude that sex discrimination is established."

17. In the typed submission Mr Hughes, under the heading "sexual discrimination", says that he totally rejects the decision on sex discrimination. He refers in particular to the comment that a male care worker was given a wage award which Miss Lamb was not given, and says that could not be a basis for finding sex discrimination.
18. Finally, in his conclusion, Mr Hughes says that he considered the decision of the Tribunal to be a travesty of justice. Miss Lamb was not dismissed unfairly. The dismissal he says was fair. He then refers in support of that to what was said by Lord Johnson in the Employment Appeal Tribunal at the preliminary hearing of the appeal of Camdon Group Ltd, which took place on 31st October 2000. The Employment Appeal Tribunal gave Camdon Group Ltd permission to proceed to a full hearing, but on a limited basis; the limited basis being whether Camdon Group Ltd had been disadvantaged by having to proceed at the hearing on 21st January 2000 without the presence of the two witnesses I have referred to, the nurse in charge and the care worker. Mr Hughes quotes passages from Lord Johnson's judgment in which he explained why, on that ground, he thought the matter should be allowed to proceed to a full hearing.
19. On that point Mr Hughes contrasted the conduct of the Employment Tribunal at Cardiff in moving hearings when it turned out to be necessary because of the personal circumstances of the Chairman, and not moving hearings when personal circumstances of the witnesses for Camdon Group Ltd meant that they were unavailable to give evidence. In summary, Mr Hughes said this:

"I repeat, Miss Lamb's dismissal was 100% her own fault, and strictly in accordance with current employment law.

In no way am I or the company guilty of Sex Discrimination for selecting one member of staff not to have a wage award. Discrimination based on selection, possibly - Sex Discrimination - certainly not."

20. He referred to criticisms which had been made in other cases of Employment Tribunals second-guessing employers on causes and reactions leading to dismissal, and repeating that, on the basis of the evidence which is in the papers, this court should reverse the decision of the Employment Tribunal in the interests of justice. He repeated that the dismissal was fair and there was no question of sex discrimination.
21. Those were the arguments which Mr Hughes advanced to me. Those are the arguments which he has advanced before the Employment Appeal Tribunal, but with only the limited success that he had before Lord Johnson in securing a full hearing on the question of whether there should be an adjournment of the hearing of 21st January to another date on which the two witnesses for Camdon Group Ltd would have been available to give evidence.
22. That particular point was dealt with at a full hearing in which judgment was given by Judge Wakefield on behalf of the Tribunal on 26th April 2001, holding that there had been no error of law on the part of the Tribunal in proceeding with the hearing on 21st January. The Tribunal said that, in paragraph 6, they were:

"... unable to accept that given the period of notice of the hearing it would not have been possible to make sufficient and certain arrangements in advance for the attendance at the Employment Tribunal of the two witnesses, if that is what Mr Hughes had in fact determined to do."

23. They also said:

"We are also unable to accept that Mr Hughes could not have appreciated that written statements would necessarily carry less weight than oral evidence by their makers, or that he failed to realise that it was open to him on the day of the hearing to apply for an adjournment if he had truly been faced with an unexpected and unplanned lacuna in his arrangements for the case."

24. It is against that decision that Mr Hughes wishes to have permission to appeal. What he wants to do in this court is to persuade the court at a full hearing, either to reverse the decision of the Employment Tribunal both as to unfair dismissal and sex discrimination, or if the court will not reverse it to remit the case to another Employment Tribunal for rehearing.
25. I have fully understood the points which Mr Hughes has made. I fully understand the force of his feelings about the proceedings before the Employment Tribunal and their outcome. I have explained to Mr Hughes, however, that there are legal constraints on the powers of this court to deal with complaints about the procedures in Employment Tribunals and about the outcome of cases there.
26. First, there is only an appeal from an Employment Tribunal on a question of law. That means that it must be shown that the Employment Tribunal has either misinterpreted the law which governs its procedures or has misinterpreted the law in the Employment Rights Act or in the discrimination legislation (in this case the Sex Discrimination Act) in applying those provisions to the facts of the case. The Employment Tribunal is, however, the exclusive fact-finding body. It is not open to the Appeal Tribunal or to the Court of Appeal to embark on finding facts or questioning the findings of fact made by the Employment Tribunal, unless it can be shown that findings have been made as result of misinterpreting the law governing the case. I also bear in mind that Camdon Group was only allowed to proceed to the full hearing in the Appeal Tribunal on a limited ground.
27. Second, as this is an application for permission to appeal, I have to be satisfied that this appeal has a real prospect of success on that limited point. It only has a real prospect of success if there is a point of law in the case. I am afraid that I remain unconvinced that there is a point of law in this case. There are certainly grounds for Mr Hughes and his company feeling aggrieved. That is true in many cases. I can understand the irritation felt by the uncertainties about the date for the hearing, moving that date from 18th October when it had been fixed to a date in December, of which apparently inadequate notice was given, to a date in January 2000, which unfortunately turned out to be inconvenient for the attendance of all the witnesses that Camdon Group Ltd wish to bring. I can also understand how an employer may feel aggrieved at an outcome of an Employment Tribunal which stigmatises the employer as having behaved unreasonably or having inflicted acts of discrimination on employees.
28. Mr Hughes does feel very strongly that the decision on both of these points is wrong. However, having read the reasons of the Tribunal and read carefully and listened to Mr Hughes read out to me his statement, I am unable to find among all the grievances he expresses there a point of law. A different Employment Tribunal might have reached a decision different from this one on the facts of the case. I am afraid that that is not a ground for interfering with this decision. This Tribunal might have reached a different decision on the facts if the two witnesses who Mr Hughes wished to bring had given evidence. But that is not an error of law. The Tribunal was entitled to proceed with the hearing on 21st January. It was entitled at that hearing, having heard the evidence of Mr Hughes and of Miss Lamb, to decide what the facts were. Having found what the facts were, it appears to me that they were entitled to apply the provisions of the Employment Rights Act and the Sex Discrimination Act to arrive at the result that they did.
29. I know that Mr Hughes will remain aggrieved about this. But I have to reassure him that there is nothing that this court is able to do, on the simple ground that there is no real prospect of successfully establishing on a full hearing of an appeal that there was any error of law by this Employment Tribunal.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)