United Kingdom Employment Appeal Tribunal

APPEARANCES

EAT/1173/98

 

For the Appellants	MS W HALL (Solicitor) Messrs Trumps Solicitors PO Box 8000 One Redcliffe Street Bristol BS99 2SD
EAT/1216/98 For the Appellant	THE APPELLANT IN PERSON


 


JUDGE PETER CLARK: We have before us appeals by both the Applicant, Mr Payling, and the Respondents, Ms Judge and the Gloucester Law Centre against this decision of the Bristol Employment Tribunal sitting over 7 days, promulgated with Extended Reasons on 11 August 1998. Although both parties have been present throughout this hearing we have treated each appeal as an ex-parte preliminary hearing in accordance with the listing of these cases.

The Applicant was employed by the Respondent as an employment advice worker. By his amended Originating Application he raised seven separate claims of victimisation under the Race Relations Act 1976, alternatively the Sex Discrimination Act 1975 and a complaint that he suffered a detriment contrary to s.44 of Employment Rights Act 1996. In addition to Ms Judge and the Law Centre he named a Mr Booth, also employed by the Law Centre, as a Respondent.

The seven allegations of victimisation are conveniently set out by the Tribunal in paragraph 3 of their Extended Reasons and the complaint under s.44 of the Employment Rights Act is set out at paragraph 4. We need not repeat those complaints in this judgment.

The Tribunal's findings of fact reveal a falling out between the Applicant and Mr Booth. However, the complaints against Mr Booth were dismissed and there is no appeal by Mr Payling against those parts of the decision.

We shall deal first with the facts relating to the Respondent's appeal (EAT/1173/98).

On 10 July 1997 the Applicant became angry and swore at Ms Judge, an employee of the Law Centre because she had left a message for him at the local Citizens Advice Bureau office which he had visited that morning, reminding him that he was expected back at the Law Centre at 1 o'clock. His evidence was that he said, "What the bloody hell do you think you're playing at; calling me at the CAB like that?". The Tribunal found that the Applicant's behaviour and demeanour cause Ms Judge to feel shaken and frightened and she suffered heart palpitations, to which she was predisposed, during the course of a staff meeting which followed, although this was not, the Tribunal found, a serious attack. The Applicant said that he would institute grievance proceedings against her.

At a staff meeting held on 16 July Ms Judge submitted a memorandum apologising to the Applicant. He replied by a memorandum accepting her apology and stating that he would not take out a grievance against her.

At the same meeting there was a discussion about a memorandum produced by the Applicant about the use of the Law Centre's building. He was the appointed staff representative on the Health & Safety sub-committee. He was concerned about the stresses of the job arising from crowded working conditions. He was also concerned about his own health, suffering as he did from a coronary problem which he had been advised was stress-related. His proposals were not well received and he produced a revised plan which was discussed at a meeting held on 29 July. At that same meeting the incident involving the Applicant and Ms Judge which took place on 10 July was also discussed and it was felt that that matter was at an end.

Shortly thereafter the Law Centre received a postcard from an employee Mrs Rukhsana Malek who was in the United States of America. She said that her uncle had died and she asked for a week's compassionate leave from 18 August in order to support her mother. A staff meeting held on 13 August reached no conclusion on that request and it went to the management committee. That committee decided that Mrs Malek should be offered 1 days leave and a letter to that effect was written on 14 August.

On 20 August the Applicant wrote to Mr Ellaway, the Chair of the Law Centre, complaining that the last staff meeting had not dealt with Health & Safety issues which he had raised. Mr Ellaway responded by accepting the Applicant's revised plan, and wrote to the Applicant and all staff accordingly.

The staff were unhappy with this decision and on 21 August Ms Judge telephone Mr Ellaway asking for a meeting to discuss Health & Safety matters. She went on to say in that conversation that she felt insecure and nervous in the Applicant's presence.

On 27 August a staff meeting took place in the absence of Ms Judge at which the Applicant, having learned of the Law Centre letter to Mrs Malek, told those present that in his view the way in which Mrs Malek's request for compassionate leave had been dealt with was possibly in breach of the Race Relations Act. The Tribunal found that it was unnecessary to decide whether a breach of the Act had occurred, it was enough that the Applicant alleged that it had. We pause to add that it is implicit that the Tribunal found that that allegation was made by the Applicant in good faith. It was a protected act within s.2 of the Race Relations Act.

On 28 August Ms Judge again discussed the Health & Safety question with Mr Ellaway, and it was agreed that she would raise the issue at the next staff meeting to be held on 3 September.

At that meeting, at which the Applicant was not present, during a discussion over Health & Safety matters Ms Judge raised the incident of 10 July. She said she felt uncomfortable working with the Applicant, although the Tribunal found that she did not use the expression 'bullying' in this connection.

On the following day Mr Ellaway, who had been present at a staff meeting on the previous day, wrote to the Applicant saying that the status quo regarding the use of the building would be maintained and a further Health & Safety meeting would be held at which all staff would be present.

We return now to the Applicant's first complaint of victimisation, namely that at the staff meeting held on 3 September Ms Judge accused him of bullying both herself and Mr Booth and the related allegation under s.44 of the Employment Rights Act. It was the Applicant's case that Ms Judge was motivated to raise the question of his behaviour on 10 July (a) because he had done the protected act in relation to Mrs Malek and (b) she caused him to suffer a detriment because he had raised the Health & Safety issue in his capacity as Health & Safety representative.

The Tribunal deal with those two complaints respectively at paragraphs 9 and 17 of their reasons, again we need not set out what is there written in this judgment.

Finally we should add that the Tribunal found the seventh complaint of victimisation proven against the Law Centre. There is no appeal against that finding.

The Appeal

Ms Hale submits that there was no evidential basis for the Tribunal drawing the inference that at the meeting of 3 September Ms Judge's remarks about the Applicant were consciously motivated by and caused by his having done the protected act under the Race Relations Act. See Nagarajan v Agnew [1998] IRLR 73.

The context in which Ms Judge raised her feelings of discomfort working with the Applicant, both on the telephone to Mr Ellaway on 21 and 28 August and at the meeting held on 3 September was solely related to the Health & Safety issue raised by the Applicant. Although Ms Hale accepts that Ms Judge was aware of the Applicant's comments about the case of Mrs Malek by 3 September, there was no evidence or any findings of fact by the Tribunal from which it could properly be inferred that that matter influenced her remarks on that day.

We are satisfied that this point is arguable and we shall allow the appeal against the finding that the first allegation of victimisation is made out against both Ms Judge and the Law Centre to proceed to a full appeal hearing.

However, we are not so satisfied in relation to the s.44 complaint. It seems to us that it was open to the Tribunal to make the findings set out at paragraph 17 of their reasons, and we dismiss that part of the appeal.

Turning now to the Applicants appeal (EAT/1216/98). This relates to the sixth complaint of victimisation only. The matter is dealt with at paragraph 14 of the Tribunal's reasons.

Mr Payling submits that the Tribunal ought to have received into evidence two documents which we have seen de bene esse. The first is a copy of a note of a meeting held on 10 December 1997 between Mr Ellaway and the Law Centre's solicitor at the solicitors office. Ms Judge was also present. The note was compiled by Mr Ellaway. It deals with legal advice received from the solicitor in connection with the applicant's continued employment by the Law Centre. The second document is a letter of resignation by Mr Ellaway as Chair of the Law Centre dated 15 December 1997.

It has emerged during the hearing before us that there is an error in the Applicant's Originating Application letter, which is perpetuated at paragraph 3(6) and again at paragraph 14 of the Tribunal's reasons. In that letter dated 9 January 1998, there is reference to a management committee meeting held on 10 December 1997. Mr Payling tells us today that the reference should be to the management committee meeting held on 15 December 1997.

Mr Payling's first complaint is that the Tribunal ought to have looked at the documents before ruling on their admissibility. We shall assume that that is correct. We have looked at the documents.

Dealing with the note of 10 December 1997 we have no doubt that the original of that note is protected by legal professional privilege and would not be discoverable in these proceedings. However, relying on the principle in Calcraft v Guest [1898] 1QB 759, Mr Payling submits that having the opportunity to take or get a copy of that document he was entitled to use it as secondary evidence in the proceedings before the Tribunal.

However, the principle in Calcraft v Guest is subject to the qualification that a party will not be allowed to use a document obtained by stealth or a trick. See ITC Film Distributors v Video Exchange Ltd [1982] 2AER 241.

We enquired how the Applicant had obtained the copy document. He tells us that it was his evidence before the Employment Tribunal that he found a copy of the 10 December Note on a table in the Law Centre library. He asked a management committee member, Mr Smith, who was present at the time whether he could take a copy. Mr Smith turned a blind eye. That version of events was apparently denied by Mr Smith before the Tribunal. There is no finding of fact as to that conflict. However, it seems to us that if the Applicant's version is correct, it is arguable that the copy document was admissible under the Calcraft v Guest principle.

As to the second document, Mr Ellaway's letter of resignation, it seems to us arguable that no question of legal professional privilege arises in relation to that document; that it was discoverable in the proceedings, and that the Tribunal ought not to have ruled it inadmissible.

The question then arises as to whether admitting either or both of those documents in evidence would or might have had any significant influence on the Tribunal's factual finding in relation to the sixth complaint of victimisation set out in paragraph 14 of their reasons.

The Tribunal there found that there was no evidence to support the contention that a proposal was made to dismiss the Applicant at the relevant management committee meeting now said to be the one held on 15 December.

Plainly from Mr Ellaway's letter of resignation, no decision was made to dismiss the Applicant on 15 December. That appears to be why he resigned. However, it would be open to an Employment Tribunal to find that such a proposal had been made and not endorsed at the meeting. That was the factual basis for the Applicant's sixth allegation of victimisation.

In these circumstances we shall allow the Applicant's appeal to proceed to a full appeal hearing as presently constituted.

Finally, we shall direct that both appeals be heard together, they will be listed for one full day, category C. Skeleton argument are to be exchanged between the parties in relation to both appeals and copies lodged with this Tribunal not less than 14 days before the date fixed for the full appeal hearing. We make no further directions and in particular there is no requirement for Chairman's Notes of Evidence, none being sought by either party.