United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE APPELLANT


 


MR JUSTICE LINDSAY: This is an appeal by Miss Tracey Shortland in the matter of Shortland against Carlson Wagonlit Travel. It is a preliminary hearing.

I am looking at the decision of the Industrial Tribunal held at Ashford, Kent on 19 June under the chairmanship of Mr G.W. Davis. The unanimous decision was this:

"(1) The Applicant's claims for holiday pay and for failure to provide written reasons are dismissed on withdrawal by the Applicant."

So that was a dead letter. It continued:

"(2) The Applicant's claims for unfair dismissal for a reason connected with pregnancy and for sex discrimination are dismissed."

Unfair dismissal was Miss Shortland's major claim, with sex discrimination added. The case turned largely on the events of 29 January 1998. The Industrial Tribunal held this:

"The issue in this case centres primarily on certain conversations which occurred on 29 January 1998 when the Applicant visited the Respondent's office in Sidcup. The Applicant says that she was told that her part-time job had been made full time, and as she did not wish to work full time, she was unable to resume her employment. The Respondent denies that the job had been made full time, and they say that the Applicant was at liberty to resume her former part-time job, but did not wish to do so."

They continued:

"There has been a substantial conflict of evidence as to the events of 29 January 1998. Having seen the various witnesses give their evidence, and having considered the written statements produced by the Respondent, we have preferred the evidence of the Respondents."

So that was a general introduction on the subject of evidence and they then turned to specific findings and they made a number of specific findings, including these: firstly, that Miss Shortland had said that if she had a baby daughter (and she was pregnant at the time) she would not return to work. Secondly, that she did, indeed, have a baby daughter, on 15 December 1997. She had had maternity leave but to cover for her absence on maternity leave the employer had taken on someone on a temporary basis. The Tribunal held that she visited the office with her new daughter on 29 January 1998 and had told several people that she was not interested in coming back to work. In particular, she told Alexandra Watt and Helen Godfrey that message and the Tribunal held that no one insisted that she should return full-time. The Industrial Tribunal explained what her claims were. In paragraphs 6 and 7 they said this:

"6 The Applicant's main claim is brought under section 99(1) of the Employment Rights Act 1996. She claims that she was dismissed and that the reason was one connected with her pregnancy.

7 The Applicant also brings a claim under the Sex Discrimination Act 1975. Her claim is based on the same facts and is essentially that she has suffered direct discrimination under section 1(1)(a) or she has suffered indirect discrimination under section 1(1)(b) in that the Respondent applied to her a requirement to work full time, which was a condition that as a lady with a newly-born baby, she could not comply with."

Miss Shortland's pleasingly terse Notice of Appeal says this:

"The grounds upon which this appeal are brought are that:

(i) The tribunal stated at paragraph 4 that with regard to conflicts of evidence, they preferred the evidence of the Respondents' witnesses but have given no details or grounds upon which to base this statement.

This conflicts with the EAT authority Tchoula v Netto Foodstores Ltd EAT 1378/96 (16.3.98) which states that such a bald reason is 'both implausible and unreasoned and therefore unacceptable'.

(ii) Additionally at paragraph 10 with regard to the conversations of 29.1.98 they also state that 'we prefer the evidence given by the Respondents witnesses' but do not give any findings why this is so."

We have had a letter from Miss Shortland saying that she would be unable to attend the appeal today as her father is very ill in hospital, and she also makes the point that she would like to add to her appeal the fact that, at the Tribunal, when the Chairman, Mr Davis, gave its decision, he said that the decision had gone 2 to 1 against Miss Shortland, yet on the printed copy received (as we recited a moment ago) it was a unanimous decision and she would like to know whether it was a unanimous decision or a 2 to 1 decision and the only way to do that was to get notes from the Tribunal. We wondered whether that is a point of sufficient importance to explore further. It is not uncommon - even assuming that she is right in saying that Mr Davis indicated it was a majority decision - that as members discuss the case between themselves one or other changes his mind and we see no significance in the change, if change it was. The result, in point of law, would have been the same, whether the decision had been 2 to 1 or unanimous and we do not think it is worth putting the Chairman to the trouble and Miss Shortland to the possibility of further expense by looking into that further.

So far as concerns her not attending today, we have had from the duty Solicitor a skeleton argument that fleshes out the points in her Notice of Appeal. We have not had an application that the matter be adjourned by reason of her inability to attend and in that circumstance we think it right to go forward with the case, without adjourning it for her to attend.

Dealing then with the two points in the Notice of Appeal, there is no invariable rule that it is unsatisfactory to the degree of representing an error of law for the Industrial Tribunal merely to say that it prefers some evidence to other evidence. Whether that amounts to an error of law depends on a fair regard being given to the decision as a whole and, in particular, whether, despite such a paucity of explanation, one side can work out why it won and the other can work out why it lost. In other words, it depends on the well known City of Birmingham v Meek test. In relatively simple cases it will quite frequently suffice for an Industrial Tribunal simply to say that the evidence of 'x' was preferred to the evidence of 'y' or, indeed, the evidence of the Respondent's side was preferred to that of the Applicant's side, or whatever it might be. We would certainly deplore any rigid rule that suggested otherwise.

Secondly, here, on the particular facts of this case, the general remarks of which Miss Shortland complains, namely that "we have preferred the evidence of the Respondents" is, in effect, merely a summary of the outcome of a whole series of specific findings and we have already detailed those specific findings. It has to be remembered that the ability of the EAT to intervene is limited to intervention on points of law. It is especially the province of the Industrial Tribunal to decide which evidence to accept from which witnesses and which to reject.

We find no error of law of the kind described by Miss Shortland in her Notice of Appeal and, even more broadly, looking at the Decision of the Industrial Tribunal here, we cannot say that it is a decision which no Industrial Tribunal, properly instructing itself, could have arrived at. We detect no error of law and accordingly (still in the absence of Miss Shortland) we dismiss the appeal.