United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DAVID DEVERE (Representative) and THE APPELLANT IN PERSON


 


MRS JUSTICE SMITH: This is the preliminary hearing of an appeal from the decision of an Industrial Tribunal sitting at Reading on 18 March 1998. The decision with extended reasons was sent to the parties on 27 March 1998. The Tribunal dismissed the Appellant's claims that the First Respondent had unfairly dismissed her and that the First and Second Respondents had discriminated against her on the ground of her sex.

The Appellant was employed as a bilingual telephone interviewer by Romtec Plc, whose Research Department carried out market research. The head of that department was the First Respondent, Mr John Morgan.

The Appellant's employment began in October 1995 and ended in July 1997. The Tribunal dismissed the Appellant's claim that she had been unfairly dismissed, as she had not completed the necessary two-year qualifying period, which would have entitled her to bring such a complaint. Her complaint of sex discrimination proceeded. Her complaints were first that Mr Morgan had brought about her dismissal and in so doing had discriminated against her on the grounds of sex. Second, she complained that he had appointed male team leaders in a predominantly female office. Third, she alleged that the Second Respondent, Frank Jennings, a team leader, had harassed her, but she withdrew her complaint against him during the hearing.

Dealing first with the complaints in respect of the appointment of team leaders, the Tribunal accepted Mr Morgan's evidence that the male team leaders had been appointed by his female predecessor. In any event, as the Appellant had not been an applicant for a team leader's position, this complaint insofar as it was a complaint of sex discrimination against her, was misconceived.

Turning next to her main complaint that Mr Morgan had engineered or ordered the Appellant's dismissal, the Tribunal found that in July 1997 the employers were concerned that the Appellant's level of output on the Healthwatch project upon which she was engaged was unsatisfactory. At that time the Healthwatch project had been in existence for only about four weeks. The employers noted that her rate of work (called a hit-rate) was less than one successful interview in three hours, whereas they considered that she ought to achieve a working rate of about twice that. The Appellant has told us this morning that she was not aware of any working rate requirement.

On 7 July 1997 the Appellant was off sick, but in the course of a telephone conversation with Mrs Channell, her immediate manager, Mrs Channell told her that she was to be taken off the Healthwatch project. She was also told that there was no other work for her to do at that time. A meeting was held on 10 July, as the result of which the Appellant considered that she had been dismissed, and she told the Industrial Tribunal that she believed Mr Morgan had decided that he wanted to get rid of her. Both Mrs Channell and Mr Morgan denied to the Tribunal that that had been so. They said that the Appellant had not been dismissed at all, only taken off the Healthwatch project because of her poor performance. It would have been open to her, they said, to remain on the Company's books and to work when a suitable project became available. They said that a male employee had also been taken off the Healthwatch project at about the same time for the same reason, poor productivity.

The Industrial Tribunal accepted Mr Morgan's evidence and found that the Appellant had not been dismissed. The Tribunal did not expressly consider whether her removal from the project was a detriment, but in our view it clearly was. However, the Tribunal went on to say that the decision to take her off the project had not been made because she was a woman, only because of her poor performance rate. They found that the male colleague, Mr Venturi, was also taken off the project for the same reason. They dismissed her claim for sex discrimination.

On 9 April 1998 the Appellant sought a review of the Tribunal's decision on the basis that this was necessary in the interests of justice. She claimed that the many assertions made by Mr Morgan had been untrue. The Chairman refused to grant a review on the ground that it had no reasonable prospect of success.

In this appeal the Appellant complains first that the Chairman wrongly refused her application for discovery of documents, which she says were necessary for the fair disposal of the case. She has told us that she made a request in writing to the Respondent's Solicitors in the very early stages, but received only one document, which she said was inadequate for her purposes. She then wrote to the Secretary of the Tribunals on 24 February 1998 in the following terms:

"Dear Sir or Madam

I am writing to make an urgent request for an ORDER for a DISCOVERY OF DOCUMENTS.

These documents are absolutely vital to my case and I have been requesting them myself and via the intermediary of a Solicitor since July 10th 1997.

The information showing the hour by hour hit rates of everyone working on the Healthwatch project was briefly flashed before my eyes at a meeting I had with Lesley Channell on 10th July. I am particularly interested to see the results of Richard Venturi, Claire Atkinson, myself and Sally Dewhurst in the weeks preceding and following my dismissal.

The small slip of paper that I was sent instead had not come off the computer and had nothing which formally linked it to the project. In addition Richard Venturi's Results were missing."

This application was apparently refused by the Chairman, although the Appellant has not shown us either an order made by the Chairman or the letter which she received from the Secretary of the Tribunals which, in our experience, would normally explain the reasons for the refusal of such an order.

On 11 March 1998 the Appellant wrote to the Industrial Tribunal office again. The purpose of the letter was to seek a postponement of the hearing due on 18 March and she set forth a number of reasons for her request. However, in the course of the letter she refers to her past request for an order for discovery of documents and she reiterated her claim that she had been requesting these documents since July 1997. She says this:

"My request was thrown out [that is her request to the Tribunal] on the grounds that it was considered too speculative by nature."

That is the only explanation which we have for the refusal about which she now complains. At the commencement of the hearing she did not renew her request for discovery.

Today we have sought to understand how this discovery could have helped her case. She has told us that only four employees were working on the Healthwatch project in French. Other interviewers were conducting interviews in English but their productivity would not be, and could not properly be, compared with those who were working in a foreign language. Those working in a foreign language had to translate their interviews into English. Of the four working in a foreign language, three were women. The other was the man, Mr Venturi.

The Tribunal below were told that Mr Venturi had been taken off the project for the same reason as the Appellant. However, the Appellant has this morning told us that he left the project of his own accord and went to Spain. She believes that his productivity was very poor as he was finding the work difficult.

In our view the Appellant's complaint of the Chairman's refusal to order discovery, cannot be raised before this Employment Appeal Tribunal. The Appellant did not seek to appeal the Chairman's refusal at the time it was made, nor did she raise the matter again at the hearing. We have not seen the Chairman's reasons for refusal and, of course, the point was not covered in the Tribunal's decision, as it was not raised at the hearing. In any event, we cannot see how the material requested could have helped the Appellant to prove sex discrimination in respect of the Healthwatch project, as the only comparators who were treated more favourably than she was, were women. Today she has said that she also wanted this disclosure to assist in her wider complaint of harassment. However, we do not see how the figures for the Healthwatch project could have assisted her in this regard, despite the fact that we have listened carefully, both to her explanations and, insofar as he has contributed, to those of her representative, Mr Devere.

The other grounds which are sought to be advanced in this appeal, including a ground raised for the first time this morning, all seek to attack the Tribunal's findings of fact. In particular, the Appellant has asserted again, as she did on her application for a review, that Mr Morgan lied to the Tribunal.

It is established by statute that this Tribunal has jurisdiction only to correct errors of law of the Industrial Tribunal below. It has no jurisdiction to re-examine findings of fact based upon the credibility of witnesses heard by the Tribunal. In those circumstances, these additional grounds are without merit and for those reasons this appeal must be dismissed at this preliminary stage.