United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J BOWERS (of Counsel) appearing under the Employment Law Appeal Advice Scheme


 


JUDGE JOHN BYRT QC: This is a preliminary hearing in an appeal from a decision of the Industrial Tribunal sitting in Southampton. Their decision was promulgated on 24 April 1997 and by that decision they dismissed the claim that the Applicant had been unfairly dismissed; they dismissed a claim that she had been dismissed by reason of her pregnancy; they dismissed a claim that she had been subjected to indirect sexual discrimination and by a majority held that she had not been sexually harassed.

Very shortly, the facts are that the Appellant, Mrs Weeks, had been employed by the Respondents since April 1991. In February 1992 she had had time off to have a baby and no employment problems arose out of that. In August 1995 financial difficulties hit the company and as a result an outside consultant had advised that there should be stricter control of the financial arrangements inside the company. In consequence, Mrs Weeks, whose position had been that of financial manager, was elevated to that of financial controller and given a new contract of employment by her employers.

Thereafter a number of difficulties arose, largely because she was unable at all times to work the hours required by her employers, taking into account the fact that she was also a mother and had home responsibilities. It so happens that in the April of 1996 she took off time to have a further child and cover was provided in the form of a Mrs Gibbens who had been previously employed by the Respondents. In the May information was given to the directors by Mrs Gibbens to the effect that the Appellant had been involved in the opening of correspondence directed to one of the directors notwithstanding the fact that it had been marked private and confidential. That matter was the subject of investigation in July and the outcome was that the Appellant was dismissed by the Respondents, ostensibly, at least, and as the Tribunal found, because they had the belief that the Appellant had been directly involved or had condoned the opening of that letter. In consequence the Tribunal found that she had not been dismissed by reason of her pregnancy.

They dismissed the allegations of sexual discrimination for a variety of reasons, which because of the finding of this particular preliminary hearing, it is unnecessary for me to go into in detail. Mr. Bowers, who has advanced the Appellant's appeal today, picked out four instances of procedural irregularity which prevented the Appellant feeling that she had had a fair and just hearing.

The separate instances in respect of which he makes complaint are that, contrary to the usual procedures, the Appellant (then the Applicant) was required to put her case to the Tribunal before that of the Respondent. This, by implication, may have caused embarrassment so far as the calling of her witnesses is concerned. It also had the disadvantage that when the case had to be adjourned for a number of weeks there was a danger the Tribunal may have forgotten her evidence and placed undue emphasis on the evidence they had but recently heard of the Respondents.

A further complaint is made that the Chairman forbad Mrs Weeks during an adjournment of her evidence to talk to her legal advisers or, indeed, her husband about her evidence and yet, at some stage, it is alleged gave leave for the Respondents' witnesses to discuss - indeed to dine with - their legal advisers. In this way, he seemed to treat them and their witnesses more favourably than the Applicant. Furthermore, it is alleged that Mrs Weeks' advocate was prevented from cross-examining a director of the Respondent company, a Mr Thomas, about paragraph 1 of the IT3 in which it was recorded that Mrs Weeks had been responsible for numerous serious acts of misconduct. Taken in themselves individually they would be insufficient to say that there had not been a fair hearing in this case. Mr Bowers submits that taking them all together there is a congerie of irregularities which would have given the Appellant, Mrs Weeks, a strong feeling that she had not had a fair crack of the whip, that she had not had a fair hearing at the hands of the Tribunal.

We expressly no make comment about the merits of Mrs Weeks' grounds of appeal in relation to the substantive findings made by the Tribunal but we are concerned about the collection of allegations made about irregularities. This Tribunal has frequently stressed the importance of the participants at a hearing before an industrial tribunal feeling that they have received due justice at its hands. Not only must justice be done but it must be seen to be done and, as a result of that, we feel that there is something here to be further investigated.

At this stage we only have an affidavit provided by Mrs Weeks herself as to the allegations she makes against the Chairman. We have his replies in which he deals with the matter. It can largely be said that he joins issue with what Mrs Weeks says. We think it is important that before this case can go further forward there should be some evidence adduced from Mrs Weeks' own advocate who had appeared before the Industrial Tribunal. We need not specify whether it be an affidavit or a letter from the solicitor concerned. We are told that she was a solicitor of some considerable experience in employment law and what she has to say might well carry considerable weight with this Tribunal.

We have five specific questions we would like to be addressed to Mrs Weeks' advocate. If, on the first four the advocate is able to support Mrs Weeks, then the matter can go forward to a full hearing without there being any need for a further preliminary hearing. If there is any doubt about the matter, however, then the matter is to come back before this Tribunal for a further preliminary hearing. In view of the fact that it will not be possible for the same tribunal to be got together again owing to the return of this Chairman to other duties, it would be a direction that the matter would come back before another Employment Appeal Tribunal as a preliminary hearing.

The questions we have in mind which should be answered, if possible, are as follows:

1. Whether Mrs. Weeks' advocate at the hearing accepted or, alternatively, in any way protested at the Chairman's ruling that the Applicant's case be presented first;
2. As to whether this ruling caused any embarrassment with regard to the calling of witnesses in support of the Appellant's case;
3. Whether the Chairman, at any stage of the hearing, said anything which might be interpreted as excepting the Respondent's witnesses from his earlier ruling that the Applicant was not to talk to her advisers or witnesses in the course of her evidence;
4. Was the Appellant's advocate prevented or discouraged from cross-examining a Mr Thomas on the terms of paragraph 1 of the IT3;
5. Last, whether there is anything else in the nature of a procedural irregularity in the hearing to which the advocate wishes to draw our attention.