United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 802_94_0504

Appeal No. EAT/802/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5th April 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MS S R CORBY

MR K M YOUNG CBE

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MR S A DAVIES          APPELLANT

SECRETARY OF STATE FOR SOCIAL SECURITY          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR P HENRICK

(Lay Representative)


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an Appeal against the Decision of the Industrial Tribunal held at Birmingham over a period of nine days in May 1994.

The Tribunal heard an application by Mr Davies against the Secretary of State for Social Security. His complaint was of unlawful sex discrimination. He made the complaint in originating application presented on 28th July 1993. That application is seventy-six pages long and refers in detail to alleged acts of sex discrimination down to his suspension from duty on full pay on 21st June 1993.

The case was contested by the Secretary of State in the Notice of Appearance dated 7th September 1993. The Tribunal spent nine days hearing the complaints. They came to the unaminous decision that there had been no unlawful discrimination by the Secretary of State against Mr Davies. The claim was dismissed.

The Full Reasons for the Decision were notified to the parties on 11th July. They can be truly called Full Reasons. They run to thirty-four pages and ninety-eight paragraphs, reviewing in more detail that is customary the evidence given by the witnesses on each side, analyzing that evidence in considerable detail, stating findings of fact and applying the relevant legal provisions to them.

Before we turn to the Grounds of Appeal, we should make a general observation about the duties of a Tribunal in giving reasons for their decisions. As observed by Lord Justice Bingham Meek - v - City of Birmingham District Council [1987] IRLR 250 at page 251:

"... an Industrial Tribunal decision is not required to be an elaborate formalistic product of refined legal draughtsmanship, [They are not even obliged to set out their reasons in a form which resembles a judgment in a court of law. What is required is this] ... an outline of the story which has given rise to the complaint and a summery 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 a sufficient account of the facts and of the reasoning to enable the EAT or, a further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance to employers and trade unions as to practices which should or should not be adopted."

There have been other decisions to a similar effect, I need only refer to one of them, Martin - v - Glynwed Distribution Ltd [1983] ICR 511 where Sir John Donaldson said this:

"Finally, it was submitted that the Industrial Tribunal was under a duty to state the law, its primary findings of facts, its secondary findings of fact, and its conclusions. This is wholly misconceived. The duty of an industrial tribunal is to give reasons for its decision. This involves making findings of fact and answering a question or questions of law. So far as the findings of fact are concerned, it is helpful to the parties to give some explanation for them, but it is not obligatory. So far as questions of law are concerned, the reasons should show expressly or by implication what were the questions to which the industrial tribunal addressed its mind and why it reached the conclusions which it did, but the way in which it does so is entirely a matter for the industrial tribunal."

I read that out at length, because, in our view, there has been some misunderstanding in the presentation of this Appeal, as to the legal obligations of a Tribunal has in dealing with the evidence and its findings of fact.

Mr Davies was naturally upset by the decision, which rejected his claims. He appealed by a Notice of Appeal served on 11th August 1994. The Notice of Appeal is not lacking in detail. It is fifty-four pages long. It took the form of lengthy document settled by Mr Henrick, who has been representing Mr Davies both in the Industrial Tribunal and on this Appeal. Mr Henrick has also taken the unprecedented step of swearing a affidavit stating on oath that the fifty-four pages of the Notice of Appeal are a true and honest statement of what took place in the Industrial Tribunal.

The affidavit and the Notice of Appeal, which Mr Henrick swears is true, have been submitted to the Chairman of the Industrial Tribunal who has made comments on it. Before we go to those details, we go straight to the heart of the appeal. Mr Henrick submitted to us, that the main point of his appeal is in the section on page 42 of his Notice of Appeal where he makes this complaint about the Tribunal's decision:

"The failure on the part of the Tribunal to include many of the salient points raised on behalf of the applicant in the notes of evidence is a breach of natural justice. I accept that there is no duty to make a verbatim record of all that transpired. That, however, is a long way from supporting the proposition that a failure on the part of a Tribunal Chairman to provide a note of the evidence can never amount to an error of law. It may be that there are cases where the need for a note is less crucial, eg where there is a single point of law which disposes of the case and in respect for which no evidence could make any difference. But in the instant case where the findings of fact are crucial, it seems to me to be fundamental that the parties must be able to see from the decision from what evidence the findings of fact were derived. I have listed innumerable instances where the tribunal have omitted evidence supportive of the applicant. It has long been held that where the findings show that certain evidence has been rejected, the tribunal must explain why. The Tribunal have not included substantial parts of the evidence supportive of the applicant.

Equally, where there is conflicting evidence, the tribunal must explain why they preferred the evidence they did. A tribunal's failure to provide such an explanation is an error of law. That being so, it seems to me equally an error of law to leave the parties in the dark as to how the findings came to be made. I have listed many example of omission and a conflict of evidence where the Tribunal have failed to adhere to the principles of natural justice outlined above."

That is the basis of this Appeal. In our view, it does not raise any arguable question of law. This Appeal should not be allowed to proceed any further.

In the course of his submissions, Mr Henrick made a number of serious criticisms of the Decision, elaborating on the general criticism quoted. He said it was a "biassed" document. He said it was a "travesty". It was "disgraceful". When we pressed him for details it came to this, that a number of witnesses called to give evidence by Mr Davies had their evidence summarised in the Decision. The Tribunal summaries, for example, include evidence given by Mr Pearce, the assistant manager at the Sandwell's Benefits Agency in which Mr Davies worked as an executive officer from 1984 to 1986; evidence give by Mr Blackwell, the centre manager at Child Support Agency at Dudley; evidence given by Lynette Law who had known Mrs Badger, the person named as discriminating against Mr Davies. She had known Mrs Badger since 1970. Mr Henrick took those three witnesses as instances of the kind of criticisms which he made of this decision. He said that the Tribunal Chairman, in writing up this decision, had omitted from the summaries of their evidence, evidence they had given supportive of Mr Davies's complaints.

He made a criticism of the way that the Tribunal had treated the evidence of Mrs Badger. On this he made a general point on page 9 of his Notice of Appeal, about a comment made by Counsel for the Secretary of State concerning Mrs Badger's evidence. He said this:

"I also asked the Tribunal to have due cognizance to what I consider to be an astonishing statement by the CSA's Counsel. He said he was not asking the Tribunal to believe everything that Mrs Badger had said. If this statement was made in a criminal court of law, I opine that the judge would throw the case out because a conviction would be unsafe. Counsel did not say what part of Mrs Badger's evidence was the truth, and which parts amounted to mendacity."

He goes on to give an example of what he describes as "blatant mendacity" on the part of Mrs Badger.

What do these points add up to? They do not add up to a point of law. The position in this case is as follows. Mr Davies made complaints of sex discrimination. The named individual was Mrs Badger. The Secretary of State was the only respondent. It was alleged that the Secretary of State was vicariously liable for the acts of sex discrimination by Mrs Badger against Mr Davies. The Tribunal considered each incident, including an incident that Mr Henrick said which they did not consider, the latest in June 1993. They considered the evidence given on each side in relation to those instances. At the point where they came to their conclusions of fact, they found that the evidence given by Mr Davies and his witnesses failed to satisfy the Tribunal, on the balance of probabilities, that he had been discriminated against contrary to the Sex Discrimination Act. They said in paragraph 98:

"We conclude the applicant has failed to satisfy us on the balance of probabilities that the respondent discriminated against him contrary to the Act. We find his case to be extremely weak. We are unable to find the applicant was subjected to unfavourable treatment on the grounds of his sex. Therefore on that ground alone his claim must be dismissed.

They found against Mr Davies on a factual ground. He was not able to prove by his own evidence, and that of the witnesses he brought to the Tribunal, the facts alleged. As he failed to prove the facts alleged, there could be no question of any vicarious liability on the part of the Secretary of State. If there had been no discrimination committed by an employee of the Secretary of State in the course of employment, there could be no vicarious liability. There was no mis-direction of law by the Tribunal. The Tribunal directed themselves correctly on the question of the burden of proof, on the statutory provisions in the Sex Discrimination Act and on the principles applying to the vicarious liability of an employer.

In those circumstances, our view is that this is an attempt to appeal against a question of fact. That is impossible in this Tribunal. It has no jurisdiction to hear appeals on points of fact. It does not hear witnesses. It does not decide questions of fact. It is not an Industrial Tribunal conducting a re-hearing. Mr Henrick has been unable to point to a single question of law which is arguable upon this appeal. In those circumstances the Appeal is dismissed.