United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS S WEISS (in person) & MR D RALLING (friend)


 


JUDGE J HULL QC: This is an appeal to us by Miss Sonya Isabelle Weiss, a lady who was employed by the London Borough of Hillingdon as, to use her own words: "a peripatetic support worker for challenging behaviour services". That meant that she was a social worker and she was employed, apparently, on a probationary or provisional basis at first whilst she was trained.

Her employment began in 1990 and eventually came to an end on 12 August 1996 when she was dismissed. She issued two Applications against her employers which are described by the Industrial Tribunal in their decision. In one she complained of sex discrimination and victimisation. In the other she complained of unfair dismissal and wrongful dismissal: breach of contract.

The Industrial Tribunal sat under the Chairmanship of Mr Menon with two Industrial Members at London North on 30 June and continued on 1,2 and 3 July. They eventually gave their decision and there is an appeal to us from their decision. There was also an Application for Review, at page 82 of our papers, and that was refused by the Industrial Tribunal and complaint is also made of that.

The case is in our list today under our practice direction and as I have explained to Miss Weiss and Mr Ralling who appears today with her, to assist her: we are concerned to find whether there is any fairly arguable point of law. Parliament has said that we have no right to consider an appeal except on a point of law. We are not entitled to review the evidence, call for fresh evidence, conduct any trial of our own, we are only concerned to see whether there is a fairly arguable point of law.

I will refer briefly to the Tribunal's decision. It goes on for no less than 29 pages and it is, it seems to us, an exceptionally thorough inquiry into the facts and exceptionally clear in what it says. It starts at page 36 of our bundle. The Tribunal record that Miss Weiss withdrew her claim in respect of equal pay and they dismissed that claim. Then they found that her other claims all failed. With regard to sex discrimination they say:

17 (6) Having given careful consideration, it is the Tribunal's unanimous decision that the Respondent did not discriminate against the Applicant on the grounds of her sex nor did they victimise her under the 1975 Act. On the evidence before the line managers, they were entitled to, and they acted reasonably, in deciding that disciplinary action against Messrs Elder and Phillips-Roy was inappropriate and that the inappropriate practice of locking up the service users could be handled more appropriately by training, counselling, better monitoring and by giving the service users access to independent advocates..." and they say "Initially the Applicant moved from the Acol Crescent unit of her own free will." That was where she was employed.

Then the employers decided that it would not be appropriate for her to move back. They say:

"The Applicant was not punished for reporting the inappropriate practices which had occurred... nor for alleging sex discrimination."

It is not enough to support a charge of sex discrimination for a man or a woman to show that they had been treated in a way that seems wrong to them by their employers. It must be shown that the employers either treated them less well because they were a man or a woman or that they made some requirement that had that effect. I am paraphrasing very loosely what is said in the Act. Mr Ralling referred us to section 14 and said, "Look, there is nothing about sex there." But the fact is that that entirely overlooks that section 14 of the Sex Discrimination Act 1975 refers to 'discrimination' which is simply shorthand for 'sex discrimination'. We think that the Tribunal were in every way entitled - we say this having read their very long decision and all the criticisms which are made of it - entirely entitled to reach the conclusion as one of fact that there was here no sex discrimination and a fortiori no sex victimisation in any shape or form.

In connection with that Miss Weiss says and indeed has sworn an affidavit suggesting that this Tribunal was biased and complaining of the behaviour in particular of the Chairman. The Chairman has answered that in a circumstantial way. It seems inconceivable to us that if, as is suggested, the Chairman roundly declared that he already knew the answer to the case and would not allow Miss Weiss to develop her case properly by cross-examination, evidence and so forth that this Tribunal could have taken four days over the matter.

The fact is, which we certainly do accept, that at times the way in which Miss Weiss wished to conduct her case may have involved what, perfectly plainly to the Tribunal, was irrelevance or even prejudicial matter and therefore the Tribunal may - and this would be a source of regret - but may have been sharp or peremptory in dealing with the way in which Miss Weiss was conducting her case. If that is so that is a source of regret. It is a hundred miles away from bias or anything of that sort. The Tribunal's duty, as I have pointed out in the course of argument, is to conduct the case and the inquiry in the way which they think right, in accordance with the rules, to arrive at the truth and they are not to be criticised as a matter of law if they do that in a way which causes some upset to the persons who appear in front of them. Naturally we always hope that we are ourselves and any Industrial Tribunal will observe the rules of courtesy and that they will explain themselves as well as they can; but their primary duty is the one laid on them by Parliament, to inquire into the matter, and we do not think that anything that is said here satisfies us that there is a remotely arguable point of law to the effect that the Tribunal were unfair or that they were biased, or that the Chairman was unfair or biased.

We now come to the point that does appear to us to be a fairly arguable point of law. What happened in the case was that eventually Miss Weiss was dismissed and the Tribunal went into that at very great length. They concluded that the employers were right when they said that she was dismissed because there had been a breakdown in the relationship of trust and confidence which showed that, in those circumstances, it was necessary to dismiss her and, again, that in those circumstances there was no need for any of the steps which would be taken on a disciplinary proceeding. It was enough to say that the trust and confidence relationship had completely broken down. They no longer could have that confidence in Miss Weiss that they would wish to have.

That, as a matter of law, is clearly an admissible position. But there is the overriding provision that the employer must act reasonably. It was the duty of the Industrial Tribunal to enquire and see whether the employer had acted reasonably. When they set out the Reasons, as they do, very thoroughly, the Industrial Tribunal mention a large number of matters which do appear to us to relate to conduct. I am going to quote from a few of them (page 62):

"18 (4)...it is crystal clear that the reason for the dismissal was the breakdown in the relationship of mutual trust and confidence between the Applicant and all her line managers including and up to the Social Services Director. The Tribunal has examined the history and the correspondence between the parties at some length."

Then they go on after dealing with certain events:

"(6) Instead of putting the events of 16 and 21 November 1995 behind her, the Applicant saw herself as the champion of the rights of the service users - that was not her role, as was repeatedly pointed out to her by her managers. She was told that she had no locus in that matter and that it was not appropriate to confuse legitimate concerns regarding service users with her personal grievance.

(7) Despite being told how she could raise a grievance, the Applicant never raised a grievance...

(8) The Applicant refused to attend the meeting with Ms Warwick, one of her line managers, because she took it on herself to decide that Ms Warwick was not an appropriate person to look into her grievance...

(9) The Applicant took her complaint outside her department, outside the line management structure, contrary to repeated advice and instructions from Mrs Ross...

(10) The Applicant, despite being told of the steps taken by the Department, took it on herself to decide that the Department had not taken appropriate steps in relation to the concerns she had raised regarding the events of 16 and 21 November..."

It goes on, on the next page, with other particulars. I will not go on reading but it is clear that a number of these matters could justly be characterised as matters of conduct and behaviour by the employee. In those circumstances it seems to us that there is at any rate arguably, and this is all we have to say, justice in what Miss Weiss herself says, that the Tribunal were contenting themselves with looking at, so to speak, the symptom without looking at the causes of the symptom in sufficient detail. That is to say, the Tribunal were saying "there was this breakdown of trust and confidence, there is material which shows that and that is enough".

It appears to us at any rate arguable that the Tribunal should first of all have looked to see whether there were other steps which the employers could or might have taken and whether indeed they should have taken them to give clear warning to Miss Weiss that if these matters continued she would not remain in their employment, she would be dismissed, to see whether by counselling, advice and warning Miss Weiss could be brought to see that this was not a way in which she could behave and to behave in a different way in future. It may be that those matters would not have succeeded but those are matters which we think might well have been considered and, in particular, whether in respect of these matters, which do amount to conduct on her part, the employers should at any rate have behaved by analogy with the way in which they would have behaved if it had been a case of dismissal or proposed dismissal for conduct, holding proper hearings and so on. As it was they did not. They treated it rather as if it was an illness into which they had adequately inquired, there was no call for any of the steps in the disciplinary code.

We think that that is a fairly arguable point and the only fairly arguable point that we can find. It relates to the unfair dismissal and since it is suggested to us that wrongful dismissal turns on much the same considerations we are prepared to give leave to proceed on wrongful dismissal too. But it is confined to that point. The Tribunal which hears this appeal will not hear any arguments relating to sex discrimination or victimisation, still less of course to equal pay. It will not hear any other arguments in relation to unfair dismissal or wrongful dismissal. We are only satisfied that this point is fairly arguable. No others appear to us to be arguable as points of law and in those circumstances no other points can lawfully and properly be entertained by our Tribunal as grounds for an appeal.

So as to those matters relating to alleged bias and sex discrimination: the appeal is dismissed. The appeal may continue solely on the ground which I have endeavoured to indicate on behalf of all of us, on which we all consider that there is a fairly arguable point and to that extent the appeal may continue.

This is a narrow ground though in our view an important one. It is not one which is easy to argue and we would like to urge on Miss Weiss and Mr Ralling that since legal aid is available in this Tribunal, in certain circumstances, they should endeavour to obtain legal assistance with regard to the appeal; both for the assistance of our Tribunal and for their own assistance. It will make it very much easier for us to reach a just conclusion on the matter in which we have given leave to appeal. However that may be we are giving leave to the very limited extent which I have indicated. It is the judgement of us all and it amounts therefore to a dismissal of part of the appeal and leave to proceed on another part.