United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR HUGHES (Representative) MD Personnel Services PO Box 99 Northampton NN3 8UL


 


JUDGE PETER CLARK: The Bedford Employment Tribunal heard the Appellant's complaints of unfair dismissal and unlawful sex discrimination over ten days. By a reserved decision with extended reasons dated 1 July 1998 both complaints were dismissed. Against that decision she now appeals.

Our task at this ex parte preliminary hearing is to determine whether the Notice of Appeal raises any arguable point of points of law to go forward to a full appeal hearing. We say at once that the Notice, as drafted, is prolix, raises issues of fact that are inappropriate at this Appeal Tribunal and fails properly to focus on the questions of law that may properly be raised on appeal.

In summary, the Appellant was appointed by the Respondent Council as head of their proposed new secure unit at the St John's Centre, Tiffield, on 19 September 1994. She was dismissed on 5 November 1996 following a disciplinary hearing held on 31 October and the 1 and 4 November 1996. She promptly appealed internally against that decision by letter dated 14 November. On 28 January 1997 she presented her Originating Application to the Employment Tribunal.

Her appeal was finally heard by a panel of three Councillors under the Chairmanship of Councillor Duxbury over three days, on 17 to 19 March 1997. Witnesses were heard on both sides during that hearing. The appeal was dismissed.

From the Notice of Appeal and the submissions made on behalf of the Appellant today by Mr Hughes we have identified three broad grounds of attack. First: the conduct of the Employment Tribunal proceedings. Based on the matters raised in the Notice of Appeal and an affidavit sworn by Mrs Duffay, who appeared on behalf of the Appellant below, to which the Chairman, with the assistance of his lay members, has responded by letter of 14 October 1998, it is said that the Tribunal did not allow her to develop her case in cross examination. Further, Mr Hughes submits that the Tribunal Chairman instructed, advised or directed Mrs Duffay as to the necessary issues that ought to be addressed during the course of the hearing and, in particular, that she should deal with the question of the Appellant's capability in connection with the unfair dismissal complaint.

We have considered those matters and the Tribunal's response and we have concluded there is nothing of substance in this part of the appeal. Employment Tribunals have a wide discretion in the conduct of their proceedings, in particular, it is open to a Chairman, having control of those proceedings, to prevent repetitive cross examination. That is what we are satisfied happened in this case. Similarly it is not uncommon for the Chairman, in an effort to assist a party's representative who is inexperienced - as Mrs Duffay plainly was in a case of this complexity - as to the sort of matters which ought to be dealt with. That, it seems to us, in this case was done with a view to assisting her and not to unduly restricting her conduct of the case.

The second matter is unfair dismissal. The Respondent put forward conduct or, alternatively, some other substantial reason as to the reason for dismissal in this case and contended that it was fair. The Tribunal, in the course of their reasons, was critical of the Respondent procedurally but concluded that there were managerial shortcomings in the Appellant's performance that rendered the decision to dismiss reasonable. The procedural defects they found were cured by the appeal process, which amounted to a full re-hearing. In these circumstances, having looked at the detailed reasons given by the Tribunal for their conclusion and the attack made on it by the Appellant in her Notice of Appeal and Mr Hughes in oral submissions, we have reached the conclusion that, again, there is no arguable point of law in relation to the finding of unfair dismissal.

Finally, as to sex discrimination, the Tribunal found at paragraph 12 of their reasons, several specified examples of discriminatory treatment. However, they later went on to find that none of the matters there complained of took place within three months prior to the presentation of the Originating Application on 28 January 1997.

It is here that we think an arguable point of law arises. The Appellant complained of acts of sex discrimination at her disciplinary hearing and, indeed, at the subsequent internal appeal which itself post-dated the Originating Application. The effect of Coote v Granada Hospitality [1998] IRLR 656 arguably extends time until the determination of the appeal process, compare Adakeye v Post Office (No. 2) 1997 IRLR 105.

In these circumstances we think that the appeal should be allowed to proceed solely on the issue of limitation under the Sex Discrimination Act. That point is touched on in the Notice of Appeal but we think that the grounds of appeal in the Notice should be disregarded for the purpose of the full appeal hearing and the case will proceed solely on the issue which we have identified. For that purpose we shall list the hearing for half a day, category B. We shall make no direction for Chairman's notes of evidence but make these two directions, first; that the Chairman be asked to re-read the Tribunal's reasons. It seems to us that on a number of pages the last line is simply missing. Since the decision itself is not paginated we can only refer to our own EAT pagination, those pages appear to be 27, 30, 33, 36 and 38. We shall be grateful if the Chairman would consider whether a Certificate of Correction is necessary to complete those pages.

Secondly, we are told by Mr Hughes today that the matter specifically referred to in paragraph 12(a) of the reasons first came to the attention of the Appellant during the course of the Tribunal proceedings. We should appreciate the Chairman's comment on that suggestion.

Finally, we understand that there was a substantial body of documentation before the Tribunal in this case. We invite the parties to agree a short bundle of documents which are relevant to the issue we have identified in this Appeal. We think, although we do not limit it in this way, that the notes of the disciplinary hearing and the appeal hearing and any correspondence leading up to those hearings may provide insight into the way in which the Appellant put her case on sex discrimination at those two hearings.