United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S BARBER (Representative) Regional Officer Greater London UNISON 1st Floor Congress House Great Russell Street London WC1B 3LS


 


JUDGE PETER CLARK: This appeal first came on for preliminary hearing before a division of the Employment Appeal Tribunal on which I sat on 17 February 1999. I refer to the judgment which I gave on that occasion for the background.

Two issues were then identified in respect of which the Chairman's Notes and comments were required. The Chairman, Mrs Don, responded by providing her complete notes of evidence but no further comment. I then directed that the preliminary hearing be restored. This is the restored hearing before a differently constituted division. Having considered the further skeleton arguments submitted by Mr Barber and his oral submissions to us today, we have reached the following conclusions:

(1) So far as the complaint that the Tribunal made a finding unsupported by or contrary to the evidence in paragraph 22 of their Reasons, that contention is rejected. It is correct to say, as Mr Barber submits, that the Respondent had no written policy providing that the operation of the disciplinary procedure took precedence over processing a timeous grievance under the grievance procedure. However, it is clear to us that there was evidence before the Employment Tribunal from Mr Terry Gardner, a personnel officer employed by the Respondent, that it was the practice of the Respondent to suspend the operation of the grievance procedure pending the outcome of disciplinary proceedings to which the grievance related. That evidence is to be found specifically in paragraph 4 of his witness statement which forms his evidence in chief before the Tribunal, and in his oral evidence (Chairman's Notes page 28).

Mr Barber has taken us to passages in the evidence of Mr Smithson, another personnel officer with the Respondent, but for ourselves we cannot see that that evidence is inconsistent with Mr Gardner's. Even were it to be so it would be a matter for the Tribunal as to which evidence it preferred.

In these circumstances we have concluded that the Tribunal's finding under challenge at paragraph 22 of the Reasons was supported by evidence and accordingly, this ground of appeal is dismissed.

(2) The complaint that the Tribunal failed to make necessary findings of fact raises different considerations. In the Appellant's first Originating Application presented on 2 October 1997 alleging direct race and sex discrimination it was alleged that whereas the Appellant was suspended for nine months on charges of gross misconduct, she believed that others facing similar complaints were not suspended. One of those was said to be a white male and Mr Barber tells us that although the name was not given, that was a reference to a Mr Terry White. Accordingly, it was alleged that the Appellant was less favourably treated on grounds of her race and/or sex than was that comparator.

Before the Employment Tribunal, we see from the Chairman's Notes, there was evidence given particularly by Mr Scott that Mr Terry White was accused of theft of Council funds, but no disciplinary action was taken against him.

On the face of their reasons the Tribunal do not appear to have dealt with the alleged comparison between the Appellant and Mr White and further, with a Mr Platt at any stage.

At this ex-parte hearing we think that there is here a point to be argued at a full appeal hearing. Accordingly we shall direct that the appeal proceed, limited to this single issue, more particularly identified at paragraphs (i) – (iii) of the Notice of Appeal under the heading "Submission".

For the purpose of the full hearing we shall list the case for two hours, Category C. There will be exchange of skeleton arguments between the parties, not less than 14 days before the date fixed for the final hearing. There are no further directions.