United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1255_95_0603

Appeal No. EAT/1255/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6 March 1996

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR K M HACK JP

MRS P TURNER OBE

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MRS J P GREENWOOD          APPELLANT

(1) MR SOHEIL GEULAMMENDI HAJI

(2) MR ROY MICHAEL BROOKS

(3) CANADA LIFE ASSURANCE COMPANY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): This the preliminary hearing of an appeal by Mrs Sonja Greenwood. Her appeal is against the decision of the Industrial Tribunal held at Ashford on 6, 7 and 8 September 1995.

The Tribunal unanimously decided that her complaint of sex discrimination failed and it was dismissed. The complaint was made against three Respondents, Mr Haji, Mr Brooks and Canada Life Assurance Company. The Tribunal explained in the extended reasons, was notified to the parties on 11 October 1995, why they rejected the complaint.

Mrs Greenwood appealed. She served a Notice of Appeal on 23 November. The case was listed as a preliminary hearing to decide whether the appeal raises a question of law that is reasonably arguable. The jurisdiction of this Tribunal is limited to appeals from Industrial Tribunals, whose decisions and proceedings raise questions of law. This Tribunal has no jurisdiction to hear appeals from decisions of fact.

In her Notice of Appeal, Mrs Greenwood, who conducted her own case at the three-day hearing before the Tribunal, listed three complaints against the decision of the Industrial Tribunal. She has amplified those complaints in a further document headed "Particulars" with some exhibits attached. She argues that the Tribunal came to a perverse decision.

We have read the decision. We are unable to find in it any misdirection on or misapplication of the law relating to sex discrimination. The only ground on which Mrs Greenwood could argue the case is that advanced to her in the Notice of Appeal, that this is a decision which no reasonable Tribunal could have reached.

The first two grounds relate to the complaint concerning the allocation of what are described as "orphan clients". The background to that complaint is that Mrs Greenwood was employed by Canada Life Assurance Company, as one of its financial advisers at their Canterbury branch. She made a number of allegations of sex discrimination against the respondent Company and the two individuals, Mr Haji and Mr Brooks, in the application presented to the Industrial Tribunal on 7 December 1994. The complaints listed in that application (IT1) do not include a complaint about the allocation of "orphan clients". Mrs Greenwood explained this point during the hearing at the Tribunal.

The Tribunal's treatment of this particular complaint is dealt with in paragraphs 10 and 11 of their decision and in paragraph 15(c). In paragraph 10 the Tribunal referred to a letter written by Mrs Greenwood to Mr Haji on 5 July 1994 in which she complained of various matters, such as Mr Haji's failure to continue to fund her and Mr Brooks's lack of support for her. She also complained of the failure to allocate to her a weekly five "orphans"; "orphans" in the Assurance business are clients who have no financial adviser looking after them.

After that letter, Mr Haji gave Mrs Greenwood an activity plan and undertook supervision and training of her himself. In paragraph 11 of the decision the Tribunal referred to a meeting that Mrs Greenwood had with Mr Haji on 18 July, when he went through her letter of complaint. The Tribunal found this:

"11 ... There is no doubt from perusal of his minute of that meeting, that he took a great deal of care to discuss the Applicant's complaints and to deal with her allegations of lack of support. He concluded the discussions by expressing to the Applicant the fact that her entire letter had been expressing her opinions and that none of it could be substantiated because it was not true. He told her that she had received hours of time and support, and she did not deny that. He expressed to her that she needed to start accepting the fact that she was responsible and accountable for her activity and for achieving the minimum standards of performance as laid down in her contract of employment. ..."

The next part of the decision, which deals with the complaints, follows the paragraph in which the Tribunal deal with the suspension of Mrs Greenwood from duty and her dismissal from her position on 8 September.

In dealing with the position of the allocation of "orphans" the Tribunal said this, in paragraph 15(c):

"15(c) She did not receive [this is a complaint by Mrs Greenwood] as large an allocation of `orphans' (i.e. clients left without a company representative looking after them) as did male financial advisers. The Applicant failed to establish that `orphans' were not distributed by the Third Respondent's management on a fair and equitable basis. We are satisfied that the manner in which `orphans' were allocated to representatives was not discriminatory on the ground of sex."

That is all that is said about that particular complaint. We have to ask, is there an error of law in the way the Tribunal had dealt with the complaint about the allocations of "orphans"? Mrs Greenwood says that there is. Her complaint, in her grounds of appeal is this, that:

"1 The tribunal failed to give proper consideration to the conflict of evidence in relation to the allocation of clients with no financial adviser looking after them (known as "orphan clients") in that in Mr Haji's evidence he claimed to have given the appellant "orphan clients" but when asked to provide evidence to support his claim was unable to do so. The appellant on the other hand gave evidence that she had not received any orphan clients."

Her second ground of appeal is that:

"2 No evidence was available to the tribunal for them to conclude that the manner in which "orphans" were allocated to representatives was not discriminatory on the ground of sex."

In support of those grounds of appeal, Mrs Greenwood handed us the witness statement, signed by Mr Haji on 6 September 1995. Mr Haji gave oral evidence to the Tribunal, along with Mr Brooks and the Regional Sales Director, Mr Flint. The relevant part of his statement, paragraph 11, refers to Mrs Greenwood's expectations that she should receive five "orphans" a week. There is an explanation along the lines I have already mentioned of what is an "orphan client" in the eyes of an insurance company. In the witness statement, he says that, in departing from his normal practice, he did allocate "orphan clients" to new representatives, that is those with less than six months with the Assurance Company. The new representatives included two men, David English and Mike Eve, and Mrs Greenwood herself.

On this appeal Mrs Greenwood submitted, as she did to the Tribunal, that it was simply not true that he allocated "orphan clients" to her. He allocated "orphan clients" to the two men, but not to her at all. That was discrimination on the ground of sex. Mrs Greenwood explained that, at the hearing, Mr Haji did not produce any documentary evidence in order to support his witness statement that he had allocated "orphan clients" to her. She had denied, in her evidence to the Tribunal, that any "orphan clients" had been given to her.

So, she says, that it was perverse of the Industrial Tribunal to decide this point about the "orphan clients" against her, without requiring Mr Haji to support his oral evidence by documentary evidence. She says, in plain English, "Mr Haji is a liar". There was perversity on the part of the Tribunal in accepting his untruthful evidence without insisting on production of the documents to support it.

Mrs Greenwood accepted that she had not, at the Tribunal, asked for an adjournment so that the Tribunal could require the production of the documents. She says that she was unrepresented; she did not understand legal procedure, it was an error of law on the part of the Tribunal not to have insisted on the production of the documents and it ought, if necessary, to have adjourned the case for those documents to be produced.

That is the main point which Mrs Greenwood has made on this appeal. We all understand her sense of grievance about this. Everybody who loses their case in the Industrial Tribunal feels aggrieved, particularly if their evidence is not accepted and the evidence which they dispute is accepted. There is nothing, however, that we, within our jurisdiction, can do about this. It is for the Industrial Tribunal to hear the evidence and to decide, where the evidence is conflicting, what are the facts. There is no appeal against their finding of the facts.

It was not an error of law on the part of the Tribunal to believe Mr Haji, even without documentary evidence. Oral evidence is evidence. If it is supported by documents, then it increases its credibility, but a Tribunal is entitled to believe evidence which is given, even though there is no documentary evidence produced to support it.

Although it is the common experience of this Tribunal that Industrial Tribunals are helpful to unrepresented people, there is a limit to how much they can properly be expected to do. It was not for the Industrial Tribunal to conduct Mrs Greenwood's case for her. There was no error of law in the Tribunal not taking the initiative of insisting on the production of the documents and granting an adjournment, if that was what was required.

We are unable to find any arguable point of law in relation to that. What Mrs Greenwood is really complaining about is the way in which the Tribunal decided the facts. That is something we cannot decide on appeal.

The other matter in her Notice of Appeal is also, in our view, a point of fact on which we have no jurisdiction to interfere. She complains that the Tribunal reached the conclusion that she had only completed two pieces of business, but her evidence was that she had completed nine pieces of business, three of which were supported by oral evidence from Mrs Weston and written evidence from a Miss Clampin and a Mr Standing and a further three of which were supported by the evidence of the Respondents, who stated that business had been completed in respect of Mr Cooper, Mrs Taylor and Mr Beardmore.

There is no point of law on that ground of appeal. The Tribunal heard the evidence and it appears from their decision that they made findings of fact on the issue of the pieces of work done. Even if, in Mrs Greenwood's view, they have not made the correct findings of fact, that does not amount to a legal question which can be raised on this appeal.

In those circumstances, we are unable to find any arguable question of law for a decision by a full Tribunal. There is no point in allowing this case to go forward, when it really has no prospects of succeeding.

For the sake of completeness, I should mention that there are a number of other points in the particulars submitted by Mrs Greenwood on this appeal; one relating to medical evidence about a bite which she had suffered to her face. Her complaint was that she had been discriminated against in relation to her treatment in respect of her medical condition. Mr Eve, one of the male representatives, was differently treated in relation to a medical condition suffered by him. Again, there is no legal point in this complaint. It is a complaint about the findings of fact in the decision. We are not able to interfere with that.

The Tribunal took three days hearing a considerable number of witnesses and looking at 800 documents. Their findings of fact have to be accepted by us. They have to be

accepted by Mrs Greenwood. There is no appeal against those facts.

For those reasons, there is no point in this appeal continuing. We will dismiss it.