United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR HODKINSON (OF COUNSEL) APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME (ELAAS)


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this Hearing is to determine whether there is an arguable point of law in an Appeal which Dr Leavers wishes to make against the unanimous decision of an Employment Tribunal held at Manchester which rejected her complaint of unlawful discrimination on grounds of her sex. That decision in Extended Reason form was sent to the parties on 17^th December 1998. The decision followed a Hearing which spanned 11 days and involved the calling of 18 witnesses who gave live evidence together with 14 written statements from witness who did not give evidence.

1. The essential nature of her complaint emerges clearly, as it seems to us, from the terms of the written decision of the Employment Tribunal and do not need to be set out in this short Judgment. We have come to the conclusion that there are points which are reasonably arguable and fit for hearing before the Employment Appeal Tribunal on an inter-partes occasion. The complaints can be put in this way and we would like to say that we have been greatly assisted by Mr Hodkinson from the ELAAS scheme in formulating these points, namely, firstly, that the Employment Tribunal may have erred in law in their approach to the question of inferring unlawful discrimination.
2. It is submitted to us that effectively, they appear to be seeking more direct evidence of sex discrimination than is likely to be available in any particular case and, in any event, there is some doubt as to the way they dealt with Dr Carol Goble's evidence, she having given evidence in support of the Applicant's case that a particular professor who was concerned in these matters, had been motivated against her on the grounds of her gender, the Tribunal appear to dismiss the relevance of her evidence by describing it as being based on one matter which occurred some years ago and that she had no direct evidence or experience of interchanges between the Applicant and the professor concerned. It is submitted to us that that is not a proper way to deal with evidence of that kind which may well have illuminated the Tribunal's thinking by demonstrating, so it is argued, a propensity on the part of this professor to discriminate against women.
3. It also seems to us to be arguable that the Tribunal have over-concentrated on the question as to whether the Applicant had made a timeous complaint of discrimination on grounds of gender. She says that she mentioned the question of gender bias when she had an interview with Mr Grant, who was the Equal Opportunities Officer with the University at the time, in I think 1995. He denied that but it seems to us that the Tribunal might well have wished to ask themselves the question whether it much mattered in the circumstances, whether gender had been specifically mentioned or not, as being the reason for the alleged mistreatment. Having regard to the fact that it may be that gender only becomes in the mind of the Applicant as a result of other and later incidents which occur which then makes "the penny drop". It also seems to us that they may have possibly over-emphasised the distinction between a formal complaint on the one hand and an informal complaint on the other. What mattered, says the argument, is what the University should have understood the complainant was complaining about, even if there word gender or sex had not been specifically mentioned in 1995.
4. It seems to us also to be arguable on what we have been told and I emphasise those words, that the Tribunal erred in their approach to the treatment of Dr Barber's evidence. I say, on what we have been told, because this is an allegation which I think, as Mr Hodkinson accepts, is a criticism of the Employment Tribunal which the Tribunal Chairman should have an opportunity of dealing with. What is said to us today, is that at some stage during the proceedings an indication was given to the Applicant that she could get a further statement from Dr Barber in the light of the way the case she had been cross-examined and the issues were emerging, but that when she came to present to the Employment Tribunal that short, written extra statement from Dr Barber, she was told that it was too late to introduce that evidence because she had "closed her case".
5. If those were the facts, it seems to us that it is arguable that the Employment Tribunal have taken an over-formalistic approach to receiving evidential material in the course of a heavily-contested 11 day hearing, where Dr Leavers was unrepresented and the Respondents were represented by Counsel. Further, it seems to us to be arguable, although notes of evidence will be required to deal with this, that the Tribunal may have misunderstood the evidence of Professor Clegg. This is referred to in para 17 of the Employment Tribunal's decision where they say this:

"The Tribunal was impressed by Professor Clegg's account that he had had several complaints from subordinates about (the Professor's) behaviour but that he did not believe that it was gender motivated".

6. The Appellant says in para 5.2 of her Grounds for Appeal, that Professor Clegg when cross-examined did not say that he did not believe it was gender related. What he did say is that "It appears that a number of people were treated badly and Violet was the extreme end of the spectrum. I would tend to be more open to an influence of gender bias" and "I tend to think that there was shading, the problems in this case were exacerbated by gender". The Tribunal's conclusion at para 17 cannot reasonably follow from these remarks. Notes of Evidence will be required in relation to Professor Clegg but if what is said in the Grounds of Appeal is correct, then it seems to us arguable that the Applicant/Appellant has some grounds in law for complaining about the way this evidence was dealt with in para 17 of the decision.
7. Those are the matters which we consider to be arguable points of law for the purposes of a further Hearing before the Employment Appeal Tribunal where the Employers will be given an opportunity of making their own representations. Because this is ex-parte, that is without the Respondents being present, it follows that nothing that we have said in this Judgment should in any way be taken to imply that the Employment Appeal Tribunal believes that the Appeal will or will not succeed. That is an issue which has to be determined at a Full Hearing. All we can say is that for the reasons we have tried to give those points are arguable and should be debated before a Court on a later occasion.
8. As to any of the other grounds, it seems to us that we have dealt with the essence of the Appeal and that it would be fair and proper that the Appeal should be confined to dealing with the points which have been identified in this Judgment, which we were assisted with by Mr Hodkinson, as I have indicated. Those will be the only points that will be considered. I shall require the Appellant to make and file an Affidavit within a period of time which I will discuss in a moment to say precisely what happened at the Employment Tribunal in relation to Dr Barbers's evidence, and its non-admission into evidence. When that Affidavit has been prepared it will be sent to the Tribunal for the Chairman's comments so that he can deal with the contention that he has made and will be sent to the Respondents for their comments.
9. As at present advised, it seems to us that the only Notes of Evidence that are required are the Notes of Evidence of Professor Clegg and we would include within that order therefore that we are making an Order that the Tribunal Chairman be invited to prepare his Notes of Evidence and send a copy of his Notes of Evidence with Professor Clegg's evidence.
10. The Respondents have kindly filled in a PHD form. They are not asking for Notes of Evidence and they indicate that they would consider that the Appeal could be disposed of within ½ day. We are of the view that having heard Mr Hodkinson now, it would be sensible to allow a full day for the Hearing of this Appeal so that these matters can be properly dealt with. If there is any need for a Directions Hearing before the Appeal comes on then an application can be made to the Court for a Directions Hearing, but I would have thought that none would be required in this case. It seems to me that this is a Category B case, all discrimination cases are important and I have no further directions to make at this time.