United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	AMANDA GALASHAW (Representative)


 


JUDGE PETER CLARK: This case, following a three day hearing before the London (South) Industrial Tribunal on 15th-17th April 1996, essentially came down to a conflict on the facts.

The applicant, Ms Stevenson, alleged that she had been unlawfully discriminated against on the grounds of her sex by her former employers, Burrows Communications Ltd and Mr Paul Dipre, a director of that company.

Her complaint was that during the course of 7th February 1995 Mr Dipre had, in the words of the Industrial Tribunal:

"made verbal approaches to her of a sexual nature which were unwanted, unreasonable and offensive and had the effect of creating a hostile, intimidating and humiliating working environment for her."

The tribunal go on:

"Had we accepted Miss Stevenson's evidence about what was said on the evening of 7th February we would have had no hesitation in finding her complaint to be well founded. Miss Stevenson made a note of the contents of the conversation between her and Mr Dipre. We do not accept that this accurately represents what was said. We find that on the balance of probabilities Mr Dipre's evidence of what was said in the true version of events. We find therefore, that Mr Dipre shouted at Ms Stevenson and used bad language to her in connection with some errors which had been made by her in the proof reading of a book the Schools Book which had been sent to the Printers, but that nothing which he said was of a sexual nature. We have assessed the evidence in this case, including the way in which such evidence has been given and we looked carefully at the matters raised by both parties."

The tribunal then go on to consider the various accounts given to them in evidence which led them to reach that conclusion on the credibility of the two main protagonists.

Having found that facts against the appellant, they dismissed her complaint.

Now there is an appeal against the tribunal's decision, accompanied by an application for Chairman's Notes of Evidence. Below the appellant was represented by a solicitor, Mr Doyle. Now, she is represented by Miss Galashaw of Employ Ease, Employment Consultants.

This is a preliminary hearing held to determine whether or not the appeal raises an arguable point of law which ought to go to a full hearing before the appeal tribunal. It also allows us an opportunity to give any necessary consequential directions, including the ordering of Chairman's Notes of Evidence.

We say straightaway that this appeal does not disclose any arguable point of law. It is advanced under that much overused umbrella of "perversity". What we are in effect being asked to do is retry the factual dispute, with the aid of the Chairman's Notes of Evidence, with a view to remitting the case to a second Industrial Tribunal so that the appellant may have a second bite of the cherry. That we will not do. This is not, in our judgment, a case like East Berkshire Health Authority v Matadeen [1992] ICR 723 which is relied on in Miss Galashaw's skeleton argument. There, Sir John Wood said this at page 737:

"... the appeal tribunal can only interfere with a decision of the "industrial jury" i.e., the industrial tribunal, if ... there is a material finding of fact relied upon by the industrial tribunal in the decision, which was unsupported by any evidence or contrary to the evidence before them."

We understand Sir John Wood there to be saying, "if there is no evidential basis for a finding of fact, or if the finding is wholly contrary to all the evidence which the tribunal received, then an appeal may succeed on the basis of perversity."

Here, is it quite clear that there was ample evidence before the Industrial Tribunal to reach the conclusion of fact which it did.

We have considered the detailed skeleton argument presented by Miss Galashaw in advance of the hearing, as well as her oral submissions made before us, Having considered them, we are quite unmoved.

One sentence from the conclusions summarised in paragraph 5 of the skeleton argument illustrates, in our view, how misconceived is this appeal. It is said:

"The Appellant further requests that this new Tribunal [that is after the appeal is allowed and the matter remitted to a fresh tribunal for a rehearing] is directed to decide which of the evidence given by Ms McAuliffe, Ms Knowler and Ms Brooks should be accepted."

It is not our function to tell Industrial Tribunals how to decide questions of fact. That sort of submission emphasises, in our judgment, how far removed this appeal is from our jurisdiction limited to correcting errors of law. Questions of fact are for the Industrial Tribunal. In our judgment this tribunal carried out its fact finding role unimpeachably at law; the appeal is dismissed.