United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T KIBLING (OF COUNSEL) MESSRS KINGSFORD STACEY BLACKWELL SOLICITORS 14 OLD SQUARE LINCOLN'S INN LONDON WC2A 3UB


 


JUDGE CLARK:

1. This is an appeal by the Applicant before the London South Employment Tribunal, sitting over 6 days, against that Tribunal's majority decision (the Chairman: Mr J Warren dissenting) promulgated with extended reasons running to 24 typed pages on 8^th July 1999, dismissing her complaint of unlawful sex discrimination. Her complaint of unfair dismissal was unanimously upheld.
2. The Applicant appeared in person below. Today, at this preliminary hearing, she is represented by Mr Thomas Kibling of Counsel.
3. The thrust of the appeal is directed to the majority conclusions expressed in paragraph 16 of the reasons. The majority appear to have accepted that the Applicant was less favourably treated than her male comparators, but was not prepared to infer that such treatment was on the grounds of her sex. The principal point taken by Mr Kibling is that the majority's reasoning leading to that conclusion depended on their own purported findings of fact which were themselves inconsistent with the unanimous findings of fact made by the Employment Tribunal in the lengthy paragraph 8 of their reasons. We refer to Mr Kibling's analysis of those findings in his helpful skeleton argument, a copy of which, with one amendment he undertakes to provide to the Respondent within 7 days of today.
4. It is well established that before drawing an inference of unlawful discrimination, and we think arguably it must follow before declining to draw such an inference, the Employment Tribunal must make all necessary findings of primary fact see Chapman v Simon (1994) IRLR 124. The Employment Tribunal will have failed to discharge its fact finding role if it has produced internally inconsistent findings of fact. Such a state of affairs would, we think, arguably amount to perversity in the sense identified by Sir John Donaldson Mr in Piggott Bros v Pickett Bros & Jackson (1992) ICR 85.
5. On this ground, the appeal will proceed to a full hearing. We shall also allow the Appellant to pursue her further ground based on the alleged failure by the majority to provide adequate reasons for their decision. (See rule 10 of the Employment Tribunal Rules of Procedure).
6. Finally, Mr Kibling with typical candour describes his last ground of appeal, the freestanding perversity ground, as something of a belt and braces approach. We think that he will have to go into the full appeal hearing either without his belt or his braces, but in any event, without the freestanding perversity argument which we dismiss at this stage.
7. For the purpose of the full appeal hearing, we direct that the appeal be listed for one day: category B. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. It is common ground between the parties, and we agree, that the Chairman's notes of evidence are neither necessary nor desirable for the purpose of determining this appeal.