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 AN EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge Peter Clark)

		Royal Courts of Justice Strand London WC2 Monday, 1st July 2002

Monday, 1st July 2002

1. LORD JUSTICE CHADWICK: This an application for permission to appeal from a decision of the Employment Appeal Tribunal (Chairman, His Honour Judge Peter Clarke) promulgated on 7th or 8th March 2002 when dismissing an interlocutory appeal pursuant to Rule 21 of the Employment Appeal Tribunal Rules 1993 from the decision of the Registrar, in a letter dated 19th December 2001, in proceedings brought by Mrs Joanne Asselman (formerly Miss Joanne Coxon) against her former employers, Rank Xerox UK Ltd.
2. The proceedings were commenced by originating application as long ago as December 1997. The principal complaints were unfair dismissal, sex discrimination and victimisation; and there was a claim for equal pay. The complaints were dismissed by the London (North) Employment Tribunal on 20th July 1999 - following a hearing extending over several days. The applicant appealed to the Employment Appeal Tribunal against the decision of the Employment Tribunal. That appeal came before the Appeal Tribunal (Chairman, Miss Recorder Elizabeth Slade QC) on 9th March 2001 for a preliminary hearing. The purpose of that hearing, under the relevant listing directions, was to determine whether the grounds in the notice of appeal raised a reasonably arguable point of law so as to give the Appeal Tribunal jurisdiction to entertain and determine the appeal at a full hearing. The Appeal Tribunal determined that the appeal should be allowed to proceed to a full hearing in accordance with the judgment of the Recorder which was handed down on that day. The effect of the judgment was that the appeal could proceed on the complaints of dismissal and victimisation and in respect of the equal pay claim. But complaints of sex discrimination were not to proceed on the basis that they raised no arguable point of law. The applicant sought permission to appeal to this court against that decision insofar as it dismissed the complaint of sex discrimination; but that application was refused by Keene LJ (sitting as a single Lord Justice) at an oral hearing on 11th October 2001.
3. The applicant's appeal to the Appeal Tribunal in respect of the complaint of unfair dismissal was based on the ground (amongst other grounds) that the decision of the Employment Tribunal had been perverse. In relation to that ground the Appeal Tribunal said this - at paragraph 11 of the transcript of the judgment delivered on 9th March 2001:

"Third, so far as the allegation that the finding that the dismissal was fair, was perverse is concerned, in our view there is some force in the contention that the absence of prior notification of the precise charges to be considered at the disciplinary hearing, in the absence of any sufficient evidence from the respondents as to what they found to have constituted gross misconduct, and also the admitted procedural error and the fact that the handbook which was before the Tribunal made it clear that the appeal was not intended under the procedure to be by way of a re-hearing are all matters which can properly be relied upon by the Appellant to attack the conclusion of the Employment Tribunal that the dismissal was a fair dismissal as perverse."

4. In that context the Appeal Tribunal directed, at paragraph 16 of the same judgment, that:

"Chairman's notes of evidence relating to the ground of appeal that the finding that the dismissal was fair was perverse to be produced."

5. The applicant has drawn attention to a manuscript note made by a friend assisting her at that hearing, which records that what was said was:

"Chairman's notes of evidence relating to the perversity grounds of appeal - you are sent them."

6. When the order came to be drawn up and entered on 16th March 2001 in the Registry of the Appeal Tribunal, it recorded that:

"THE TRIBUNAL DIRECTS that the learned Chairman do be asked to provide his Notes of Evidence on the perversity point."

7. Insofar as there is any difference between the manuscript note and the transcript of the judgment, it is plain enough from the transcript that what the learned Recorder intended was that the notes of evidence to be produced should relate to the ground of appeal that the dismissal was fair and not to any other ground; in particular, not to the ground that the conclusion on the complaint of victimisation was perverse.
8. The direction as recorded in the order drawn up on 16th March 2001 gave rise to difficulties in practice - in that the Chairman of the Employment Tribunal (Mrs J R Hill) and the regional Chairman (Mrs T J Mason) expressed uncertainty as to what it was in relation to the Chairman's notes, that the Appeal Tribunal wanted produced. That question was referred back to the Recorder for her guidance. In a letter of 19th July 2001 she wrote this:

"The basis upon which the Employment Appeal Tribunal considered it arguable that the allegation that the finding of dismissal was fair, was perverse is set out in paragraph 11 of the judgment. The notes of evidence relating to prior notification of the precise charges to be considered at the disciplinary hearing and of the evidence given as to what the Respondents found to have constituted gross misconduct are required. All 72 pages of notes are not needed."

9. That response from the Recorder led the Registrar of the Appeal Tribunal to amend the order which had been drawn up on 16th March 2001. The relevant paragraph in the amended order is this:

"THE TRIBUNAL DIRECTS that the learned Chairman do be asked to provide [her] Notes of Evidence [relating to prior notification of the precise charges to be considered at the disciplinary hearing and of the evidence given as to what the Respondents found to have constituted misconduct]."

10. That follows closely the text in the letter of 19th July 2001 to which I have referred.
11. The applicant is dissatisfied with the Registrar's amendment. She raised her concerns before him; and his response is contained in the letter of 19th December 2001 to which I have referred. In his response the Registrar explains that the order drafted by the associate in court was unclear as to the extent of the disclosure; therefore, the judge had specified the relevant section of the notes to be disclosed in accordance with her written judgment. He referred to rule 33(3) of the Employment Appeal Tribunal Rules 1993, which provides for the correction of clerical mistakes on the authority of the judge.
12. The applicant appealed from the Registrar's decision, as she was entitled to do under rule 21 of the 1993 Rules. That appeal was heard by the Appeal Tribunal, under the Chairmanship of His Honour Judge Clark, in March of this year. He dealt with the point at paragraph 15 of the judgment given on that day:

"I do not propose to alter the decision taken at the preliminary hearing held last year, that is to say I am not prepared in this appeal to extend the scope of Chairman's Notes beyond those ordered by Miss Recorder Slade. The difficulty that arises is that neither the judgment nor the original order nor the amended order made consequent upon the Recorder's judgment identifies precisely which witnesses evidence is to be produced by way of Chairman's Notes. I understand the difficulty which faced Mrs Hill in the first instance. However, the Chairman has produced the witness statements and her notes of evidence of the three Respondents' witnesses' whom I have mentioned. Are any further witnesses' evidence needed in order to comply with the direction given by Miss Recorder Slade? Mrs Asselman submits that she also requires notes of the evidence given by Tom Madison, a Human Resources Manager, whom she tells me and I accept gave evidence below, but who is omitted from the list of witnesses in paragraph 20 of Mrs Hill's reasons."

13. The three witnesses of which notes of evidence were produced were Tracey Mudge, Frank Mooney and Richard Sullivan, as the judge had made clear at paragraph 11 of the judgment of 7th March 2002.
14. The judge went on at paragraph 16 to say this in relation to Mr Madison's evidence.

"I have been shown his witness statement prepared for the purpose of the Tribunal proceedings. It seems to me on the submissions made by Mrs Asselman that his evidence does not bear on the precise issues in relation to which Chairman's notes were ordered. That is to say the prior notification of the disciplinary charges considered at the disciplinary hearing held by Ms Mudge in October 1997 nor as to the Respondent's findings as to what constituted gross misconduct justifying the dismissal of the Appellant."

15. An appeal to this court lies only on a point of law: see section 37 of the Employment Tribunals Act 1996. The question, therefore, which I need to address in deciding whether to give permission to appeal on this application is whether any point of law can be identified.
16. Mrs Asselman, who has appeared in person and has put her submissions clearly and courteously, has really taken three points. First, she has asserted that the limitation - which appears in paragraph 16 of the judgment of Miss Recorder Slade on 9th March 2001 - to notes relating to the ground of appeal that the finding that the dismissal was fair did not reflect what the Recorder either said or intended on 9th March. Relying on the manuscript note to which I have referred, she submitted that what the Recorder had really intended was that notes of any evidence relating to perversity, either in respect of the finding that the dismissal was fair or the finding in relation to victimisation, ought to be produced. Her difficulty on that point is, first, that the transcript is clear; and that it is not open to this court - without an application to the Appeal Tribunal for access to, and an examination of, the tape-recording - to go behind the trasncript and rely on a manuscript note. Even if the tape-recording were to show that the manuscript note was the more accurate record of what was actually said, nevertheless, the approved transcript must be taken to reflect what the judge intended. The second difficulty, of course, is that the specific point was referred back to the Recorder on 19th July 2001; and her letter of that date makes it plain that the Tribunal's direction was limited to the allegation of perversity in relation to the finding that the dismissal was fair. Indeed, the only evidence that the Appeal Tribunal thought was needed was evidence relating to prior notification of the precise charges to be considered at the disciplinary hearing.
17. The second point that the applicant takes is that the notes of evidence that have actually been produced - and to which Judge Clark refers - are not themselves complete. As to that, the Employment Tribunal plainly took the view that those were the three witnesses who had given evidence about that point and that the other witness, Mr Madison, whose evidence the applicant wished to put before the Appeal Tribunal, had not given such evidence. The Appeal Tribunal reached the same conclusion; not, I think, by looking at the notes of evidence of Mr Madison themselves, but by looking at the witness statement which he had made in advance of the hearing in order to inform themselves as to the scope of the evidence that he was proposing to give. The question whether the Appeal Tribunal informed itself correctly is not a question of law for this court; and the applicant's submission really has to be that the Chairman of the Employment Tribunal failed to comply with the clear terms of the amended order. She has to assert that Mr Madison did give evidence in relation to the prior notification of the precise charges and that the Chairman has deliberately chosen not to disclose that evidence. That is an allegation which cannot be entertained in the absence of some cogent evidence to support it.
18. Her third point is that the original order made in March 2001, if - limited in the way that I have described - was itself too narrow; that is to say that what is really needed in this case is not just the notes of the evidence, limited to the particular question which the Recorder identified, but a more extensive disclosure of the Chairman's notes. Again, that cannot be described as a question of law for this court. It is pre-eminently a question for the Employment Appeal Tribunal to decide what it thinks it needs to examine in order to conduct this appeal fairly.
19. I have no doubt that if, in the course of the appeal when it is heard, Mrs Asselman persuades the Appeal Tribunal that there are relevant matters which fall outside the notes disclosed, the Appeal Tribunal will have ample power to require further disclosure if it thinks that is necessary. But at this stage preliminary directions have been given for the hearing of the appeal, there is no error of law in the directions given and this court has no power to interfere - and, in my view, would not, even if it did have power, interfere - with those procedural decisions taken by the Appeal Tribunal.
20. For those reasons, this application for permission to appeal is must be refused.
Order: Application refused.