United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1133_95_2907

Appeal No. EAT/1133/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29th July 1996

HIS HONOUR JUDGE PETER CLARK

LORD GLADWIN OF CLEE CBE JP

MR K M HACK JP

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TONY COOPER LTD          APPELLANTS

MRS J R LANGLEY          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised


 


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APPEARANCES

For the Appellant JONATHAN SWIFT

(of Counsel) appearing under the Employment Law Appeal Advice Scheme


 


JUDGE PETER CLARK: This is an appeal by the employer, Tony Cooper Ltd, against the decision of the London (North) Industrial Tribunal sitting on 9th May 1995 that the appellant had unfairly dismissed the respondent, Mrs Langley, and victimised her on grounds of her sex contrary to Section 4 of the Sex Discrimination Act 1975. Extended reasons for that decision are dated 18th September 1995.

The question of remedies was adjourned and is due to be heard by the same Industrial Tribunal on 3rd September 1996.

The appellant company produces clothing manufactured by sub-contracted factories. Mrs Langley commenced employment as the company's sole quality controller in November 1990.

In February 1994 Mrs Langley asked for a pay rise. She compared herself to a male employee, Mr Buchanan, the designer, and suggested to Mr Cooper that she was paid less than Mr Buchanan because she was a woman. She sought equal pay with him.

From that day on, the Industrial Tribunal found, she was treated appallingly by the company. They found that the reason for such behaviour was her intention to make an Equal Pay Act application. The detail of the events leading up to her dismissal on 17th March 1994 are set out in the extended reasons.

As to the unfair dismissal complaint, the tribunal found that she was dismissed for notifying a major customer, C & A, that goods supplied to it by the appellant were defective.

She told Mr Jarvis, of the company, what she had done in a telephone call on 17th March. That is recorded at paragraph 14 of the reasons. A little later someone from C & A telephoned Mr Cooper to tell him of the respondent's comments. As a result, the tribunal found, Mr Cooper decided that she must be dismissed. Accordingly Mr Jarvis wrote to her on 17th March in these terms:

"You telephoned me at 4.00pm today, and made a series of extraordinary threats which we were prepared to ignore.

However one of the threats which you made was that you had advised one of our biggest customers C & A that we were supplying them with faulty goods. Mr John Ryan from C & A has telephoned us to report that you have in fact done so.

We have to advise you that your conduct has left us with no alternative other than to dismiss you with immediate effect.

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Mr Cooper has asked me to advise you that he is so shocked by your behaviour that he would prefer not to speak to you personally. He has authorised me to deal with all matters relating to the termination of your employment and is countersigning this letter to make this clear to you."

On those findings the tribunal held that the reason for dismissal related to the respondent's conduct, but that it was unfair in that she was given no opportunity to explain her actions in contacting C & A, and that there was no proper investigation of the circumstances surrounding the incident. They went on to find that had a proper procedure been carried out there was a 50% chance she would have retained her employment. We understand that the respondent has appealed that finding, but that appeal is not before us, having been stayed pending the remedies hearing due to take place on 3rd September 1996.

The short point taken in this appeal by the employer, advanced by Mr Swift of Counsel who appears for the appellant under ELAAS scheme, is this:

In paragraph 14 of the reasons, the tribunal failed to record a second telephone conversation between Mr Jarvis and the respondent on 17th March. Mr Swift advances this factual submission on behalf of the employer on instructions from Mr Cooper, who did not attend the Industrial Tribunal hearing.

However, even if it is correct that

(a) such a conversation took place, and

(b) evidence of such a conversation was given to the Industrial Tribunal,

we cannot see that a failure to record it undermines the tribunal's finding. The relevant finding is that Mr Cooper decided to dismiss the respondent after receiving the call from C & A. He did not want to speak to the respondent again (see the dismissal letter). He is the principal of the appellant company. Any conversations subsequent to his decision to dismiss which took place between Mr Jarvis and the respondent is, the Industrial Tribunal were entitled to conclude, immaterial. The die had been cast. Mr Cooper did not want to speak to her or hear her explanation. The Industrial Tribunal's finding as to lack of opportunity for a hearing is, in our judgment, unassailable.

That disposes of this appeal. There is no arguable point of law. We shall dismiss it.

Mr Swift suggests that the employer can raise the same point by way of cross-appeal in answer to the respondent's existing appeal. That will be a matter for the division of the Employment Appeal Tribunal hearing her appeal. For ourselves, we have heard and determined the employers appeal. Any attempt to further argue the same point may raise questions of issue estoppel for the next appeal tribunal.