United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MS NICOLA BRAGANZA (of Counsel)


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us by way of a preliminary hearing the appeal of Film House Reprographic Co Ltd, which was Third Respondent below, Richard Gambling, First Respondent below, and Paul Samuel, who was Second Respondent below, in the matter Ms N Walkington v Gambling, Samuels and Filmhouse Reprographic Ltd. The Respondents appear today by Ms Braganza, who did not appear below.

1. The decision followed a hearing on 9 April 1999 at London North. The Employment Tribunal was under the Chairmanship of Mr G Flint. The decision of the Tribunal was sent to the parties on 30 April this year and it was this:

"The unanimous decision of he Tribunal is that the reason for the Applicant's dismissal was because she was pregnant and that consequently her dismissal was unfair and further that the Applicant has suffered sex discrimination by reason of her dismissal on the grounds of pregnancy. The parties agreed compensation between themselves after the hearing."

2. There is a document which purports to be a Notice of Appeal that was plainly not prepared by Ms Braganza. It is not satisfactory in the sense that it is couched more as a letter of dissatisfaction and query to the Employment Tribunal itself, rather than as a Notice of Appeal. In several respects it points to one document or another which it asserts leads to the conclusion that the Employment Tribunal was in error. It is not at all clear from the letter whether some of the documents asserted as to be relied on were or were not in front of the Employment Tribunal, but, even if they were, none seems to point clearly to any error on the Tribunal's part which was an error of law. For example, the Employment Tribunal's reasoning would be unaffected were it to transpire that Ms Walkington was already pregnant when she was offered the job by the Third Respondent.
3. The central finding of the Tribunal was this:

"We draw the inference therefore from the unsatisfactory nature of the Respondents' evidence that the principal reason and in fact the only reason for the Applicant's dismissal was because she was pregnant and that the Respondents had decided to terminate her employment rather than face the difficulties associated with the pregnancy and the payment of maternity pay. Consequently we find that the Applicant establishes that she was unfairly dismissed because the principal reason for the dismissal was because she was pregnant and she also establishes that she was discriminated against on the grounds of her sex."

That was the chief finding. Another finding, on our page 15 paragraph 5, was this:

"We found the evidence given on behalf of the Respondents by Ms Gower the Admin Secretary and by the Second Respondent to be extremely vague and unsatisfactory. It was also in part contradictory…"

and then the nature of the contradiction is explained, and the Tribunal said:

"We have no hesitation in rejecting the Respondent's evidence."

4. In order that an Appellant should succeed on an appeal it is, of course, of no avail for the Appellant to say that there was some evidence contrary to the Tribunal's conclusion. In order to demonstrate an error of law upon a complaint of any such kind the Appellant has to show that there was no evidence that supported or could support the conclusion to which the Tribunal came.
5. We have now, very late, received a Skeleton Argument from Ms Braganza which, needless to say, makes a far better fist of seeking to identify points of law than had done the letter to which I earlier referred. There are a number of grounds which Ms Braganza has developed before us and which we need to respond to.
6. She first develops an argument that springs out of the conclusion of the Tribunal that the Applicant was supposed to commence employment with the Third Respondents on Monday 5 October 1998. She was ill on that date and did not commence work until 12 October 1998. There is a reference in the Skeleton Argument to what the Witness Statements say on the point, but, first of all, Ms Braganza's own Skeleton Argument accepts that the point is of relatively little significance. It does not necessarily touch upon the conclusion that the principle reason for the dismissal was pregnancy. Secondly, analyse as one might the Witness Statements, what needs to be examined is a view of the evidence as a whole, which, of course, included oral evidence. So one cannot jump from the fact that the Witness Statements seem inadequate on the point to a conclusion that the evidence as a whole was inadequate on the point. Finally, on this limited point, Ms Braganza says:

"Though of relatively little significance, this error casts doubt on the reliability of the ET's overall assessment of the evidence."

One cannot jump from a conclusion that because, in an insignificant area, there was an error (even if there was an error) to a conclusion that the overall assessment was flawed. We do not see anything in that point.

7. Next, Ms Braganza's Skeleton says that:

"The ET fails in its decision to address at all [the Appellant's] complaints about [Ms Walkington's] work: [namely] her "general unhelpful approach … lack of attention, taking extended lunch breaks and spending frequent time away from the reception area leaving the telephone unattended"."

The Employment Tribunal was very conscious that what it had to decide was not whether pregnancy was the only reason for dismissal (because it several times mentions that it had to look to see whether it was at least the principle reason for dismissal). The existence of possible secondary reasons for the dismissal does not indicate that the Tribunal's conclusion as to what was the principle reason was in any way in error.

8. The Tribunal was thoroughly conscious of what the Respondents' defence was on the point; in their paragraph 4 they begin:

"The Respondents' defence to the claim is that the reason for the Applicant's dismissal was her capability."

so it cannot be said that they did not have the point in mind. They heard evidence on it and, as we have already cited, they said:

"We have no hesitation in rejecting the Respondent's evidence."

It is the function of the Tribunal to listen to the evidence, to observe inter alia the demeanour of the witnesses and to come to a conclusion and we see no error of law in this area.

9. Then Ms Braganza's useful Skeleton says that, in effect, the comment by the Tribunal that the evidence of Ms Gower and the Second Respondent as "vague and unsatisfactory" is insufficient. We do not accept that. There are many authorities that point to the extent to which detail can be expected of an Employment Tribunal. One hears time after time that their decisions are not intended to be gone through with a fine tooth comb and one remembers also the approach of the Court of Appeal as exemplified in The City of Birmingham v Meek, that the parties are entitled to know why they won, and why they lost. But that does not mean to say that each conclusion has to be spun out and explained in detail. It obviously is desirable if the Tribunal is able, and has time, to amplify remarks such as "extremely vague and unsatisfactory", but we cannot describe it as an error of law that no more full description was given than that of the unsatisfactory nature, as it seemed to the Tribunal, of the Respondents' evidence.
10. Next there is a complaint that there is no other reference to the evidence which Ms Walkington gave, be it to her Witness Statement or her oral evidence, and there is no assessment of Ms Walkington as a witness. There is no assessment as to her credibility; whilst it must be implicit that her evidence was referred to that of others, there is no explanation at all, it is said, as to why that was so. But one has to remember what the task was before this Tribunal. It was to find out what was the sole or principle reason for the dismissal. Was it pregnancy? In the nature of things, the person dismissed is not perhaps going to know very much about what was in the mind, or what was the intention, of the dismissing employer. The Tribunal thus principally had to examine, therefore, the evidence given on the Respondents' side. We would see this to be a case where detailed assessment of Ms Walkington's credibility was not needed.
11. Then Ms Braganza mentions the case of Tchoula v Netto Foodstores Ltd unreported, but which is EAT/1378/96. What the learned President was there addressing was the kind of remark that one does sometimes see that simply says that wherever there is a conflict between the evidence of A and the evidence of B, the Tribunal prefers the evidence of A. That is a remark which can fairly be described, as it was in that case, as a 'bald statement' and one can see that attack is possible on conclusions of quite such baldness. But here we do not feel able to say that there is anything akin to that remark. There is no statement that wherever there is conflict between A and B, A is to be preferred. There is, in paragraph 5, a description of the evidence of one side as being vague and unsatisfactory and also as internally contradictory. It might have desirable that the Tribunal should have spelled that out more fully but shortcomings of that nature can hardly amount to an error of law, at all events where the reason why the employer lost is plain. Here it is quite plain why the employer lost. The reason is that the Tribunal found that the sole or principle reason for Ms Walkington's dismissal was her pregnancy.
12. The Tribunal heard and saw Ms Walkington, they heard and saw the evidence on the Company's part. It is their province to decide which evidence to prefer. The City of Birmingham test was manifestly made good in this case and we are quite unable to find any error of law, and one emphasises of law, in their conclusion. Accordingly, even at this preliminary stage, we must dismiss the appeal.