Industrial Tribunals Northern Ireland Decisions

 


Baxter Mervyn v Montgomery (formerly t/a Conservatory Shop) (Application for Review) [2002] NIIT 1193_01 (23 May 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 1193/01

APPLICANT: Deirdre Elizabeth Baxter

RESPONDENT: Mervyn Montgomery

Formerly trading as The Conservatory Shop

DECISION ON APPLICATION FOR REVIEW

The unanimous decision of the tribunal is that the applicant's application for a review is refused.

Appearances:

The applicant was represented by Ms M Higgins, Barrister-at-Law, instructed by Basil Glass & Company, Solicitors.

The respondent was represented by Mr A Ferguson of Personnel and Training Services.

REASONS

1. By a decision recorded and issued to the parties on 25 February 2002 the tribunal unanimously:-

(i) dismissed the applicant's complaint of sex discrimination;

(ii) upheld the applicant's complaint of unfair dismissal; and

(iii) upheld the applicant's claim for damages for breach of contract.

2. By letter dated 8 March 2002, the applicant applied for a review of the tribunal's decision under Rule 11(1)(e) of the Industrial Tribunals Rules of Procedure 1996 on the ground that the interests of justice required such a review and that there may have been a procedural mishap. The application stated:

"The applicant considers that there are reasonable grounds for arguing that (a) the tribunals judgement does not address many of the relevant points which favour the applicant; (b) the tribunal may have misdirected itself in law in the course of reaching its decision; (c) the decision does not fairly reflect the evidence of the parties; (d) the tribunal's decision on sex discrimination depends at least in part on a point on which the applicant was not given an opportunity to comment; and (e) there are certain apparent contradictions which require clarification.

The reasons why the applicant contends this are as follows:

(a) the tribunal makes a finding at paragraph 4 that they were not entitled to, namely that it "is satisfied that the applicant wore eye make up and lipstick, not because of the requirement, but because like the sunbed, she felt that it enhanced her appearance". This was not put forward by the respondent and is a conclusion reached by the tribunal which the applicant was not offered an opportunity to comment;

(b) the tribunal have failed to find whether or not the applicant's failure to wear make up or sufficient make up were a contributory factor in her dismissal;

(c) the tribunal have failed to deal with the documentary evidence presented to the tribunal relevant by the respondent on the issue of the applicant's appearance or the conflicts between that evidence and the oral evidence of the respondent's witnesses;

(d) the tribunal finds that "Mr Craig's comments related to the applicant's failure to apply her make up until after her arrival at work". The decision fails to make it clear whether the applicant was ever criticised about her make up on any occasion apart from those in which it found she applied make up after her arrival at work (as alleged by the applicant and appears from the respondent's documentary evidence) and if so, in what circumstances;

(e) On the one hand, the tribunal finds that there was a requirement to wear make up. On the other, the tribunal is "not satisfied that Mr Craig required the applicant to wear a certain amount of make up or to appear glamorous. These two statements on their face contradict one another and require clarification."

3. A hearing for review took place on 23 May 2002. At that hearing Ms Higgins contended that a review was required in the interests of justice because the tribunal had made a procedural mishap in two respects. The first respect was that the reasons given by the tribunal in respect of the applicant's complaint of sex discrimination did not:

(i) reflect the course of the evidence;

(ii) identify and address conflicts of fact;

(iii) make the tribunal's position in relation to them clear; or

(iv) explain to the applicant why certain aspects of her evidence were either rejected or not given any weight.

The second respect was that the tribunal made a finding at paragraph 4 of its decision which was not part of the case being made by either the applicant or the respondent and without giving the applicant the opportunity to comment.

4. In support of her contentions, Ms Higgins referred the tribunal to Rule 10(3) of the Industrial Tribunals Rules of Procedure 1996 which provides:

"The tribunal shall give reasons for its decision in a document signed by the chairman".

5. Ms Higgins also referred the tribunal to Harvey on Industrial Relations and Employment Law, Volume 5 at paragraphs 972-976. At paragraph 972, it is stated that the requirement to give reasons 'is a mandatory requirement'. At paragraph 974 it is stated that, "When formulating their reasons, employment tribunals are not required to create 'an elaborate formalistic product of refined legal draftmanship' (Meek –v- City of Birmingham District Council [1987] IRLR 250 at 251 CA, per Bingham LJ). Nor are they obliged to set out their reasons in a form which 'resembles a judgment in a court of law' (Kearney –v- Trecker Marwin Ltd –v- Varndell [1983] IRLR 335 at 339, CA, per Eveleigh LJ). Instead, what is required, as Bingham LJ stated in Meek's case, is for the reasons:

'… to contain an outline of the story which has given rise to the complaint and a summary of the tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises:'

At paragraph 975 the statement of Sir John Donaldson in Alexander Machinery (Dudley) Ltd –v- Crabtree (1974) IRLR 56:

"The overriding test must always be: is the tribunal providing both parties with the materials which will enable them to know that the tribunal has made no error of law in reaching its findings of fact?"

is referred to. The statement of Donaldson LJ, as he then was in Union of Construction, Allied Trades and Technicians –v- Brain [1981] IRLR 224:

"[Employment] tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case either in terms of fact or in law … their purpose remains what it has always been, which is to tell the parties in broad terms why they lost or, as the case may be, win,"

is also referred to at paragraph 975. At paragraph 976 the statement of Peter Gibson LJ in High Table Ltd –v- Horst [1997] IRLR 513 at 518 CA:

"Whilst [the tribunal] must consider all that is relevant it need only deal with the points which were seen to be in controversy relating to these issues, and then only with the principal important controversial points"

is referred to.

6. Ms Higgins contended that there were major evidential conflicts, both oral and documentary, in relation to the appearance issue, including whether the applicant was constantly poorly groomed, whether her grooming was 'OK' and whether she did her grooming at work, which the tribunal neither identified nor addressed. Nor did the tribunal's decision make clear its findings in relation to the applicant's allegations of constant complaining and regular criticism of her appearance. Nor did the tribunal indicate that it had or how it had addressed differences in the case made by the respondent on paper and at the hearing in relation to the applicant's appearance.
7. In relation to the second aspect of the procedural mishap, although Ms Higgins accepted that she was not contending that there was no evidence upon which the tribunal could have found that the applicant wore make up because she felt it enhanced her appearance, she contended that such a finding should not have been made without giving the applicant the opportunity to comment, as it was not part of the applicant's or the respondent's case. Ms Higgins further contended that the applicant should be given that opportunity at a further hearing.
8. In relation to the first aspect of the alleged procedural mishap the tribunal accepts that there were major conflicts of evidence in relation to the applicant's allegations of sex discrimination concerning her appearance and the duties she was required to do.

However in her closing submissions Ms Higgins indicated to the tribunal that the applicant's complaint of sex discrimination was restricted to:

(1) comments allegedly made to her by Mrs Craig, the general manager, about her personal appearance and her grooming and the standard of grooming required of her namely:

(a) the alleged requirement to wear make up;

(b) the alleged requirement to wear a sufficient amount of make up;

In relation to those two requirements Ms Higgins submitted that the applicant suffered a physical detriment in that she had to spend time putting make up on and that she suffered an economic detriment in so far as the requirement was part of the reason for her dismissal.

(c) the alleged requirement to have perfectly groomed hair; and

(d) the state of the applicant's clothes, and whether a higher standard of professional grooming and greater demands of time were asked of the applicant because of her sex;

(2) comments allegedly made to the applicant by Mrs Craig on 4 January 2001 that the applicant did not want to work but just wanted to get married and have babies.

The tribunal recorded those submissions at paragraphs 2 and 4 of its decision and restricted its findings of fact and conclusions accordingly. The tribunal does not accept that the interests of justice required it to nevertheless address issues which the tribunal did not consider relevant to the applicant's sex discrimination complaint as restricted.

9. The tribunal found, as set out at paragraph 5 of its decision, that Mrs Craig did make comments to the applicant about her make up but not as claimed by the applicant. The tribunal also found that Mrs Craig's comments related to the applicant's failure to apply her make-up until after her arrival at work. The tribunal accepts that it did not set out, at paragraphs 4 or 5 of its decision, whether the applicant's failure to apply her make-up until after her arrival at work was a contributory factor in her dismissal. However it is clear from paragraphs 10(8) and 11 of the decision that the tribunal found that it was not a contributory factor in the applicant's dismissal.
10. The tribunal does not accept that its finding at paragraph 4 of the decision that:

"The tribunal is satisfied that the applicant was required to wear eye make-up and lipstick as she had done at each of the three interviews to maintain the well-groomed appearance she had portrayed at interview,"

contradicted its finding at paragraph 5 that:

"the tribunal is not satisfied that Mrs Craig required the applicant to wear a certain amount of make-up or to appear glamorous."

That is because those two statements were intended to convey the tribunal's findings that the applicant was required to wear make up but was not told how much to wear.

11. In relation to the second aspect of the alleged procedural mishap the tribunal is satisfied, and Ms Higgins did not dispute, that there was evidence upon which the tribunal could find that the applicant wore make up because she felt it enhanced her appearance. The tribunal does not accept that it was restricted in its findings of fact to allegations made by the applicant or respondent provided that its findings were based on the evidence before it. Nor does the tribunal accept that it is required to reconvene hearings to enable parties to comment on such findings before it reaches a decision.
12. For the reasons set out above, the tribunal is not satisfied that there were procedural mishaps requiring a review in the interests of justice. The applicant's application for a review, is therefore refused.

Chairman:

Date and place of hearing: 23 May 2002, Belfast

Date decision recorded in register and issued to parties: