United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR RICHARD HARRISION (of Counsel) Bar Pro Bono Unit
For the Respondents	MR JONATHAN MOFFETT (of Counsel) Legal Department PO Box 240 Westminster City Council Westminster City Hall 64 Victoria Street London SW1E 6QP


 


JUDGE WILSON: This is has been the hearing of the full argument in the appeal by the original applicant against the unanimous decision of what I will call "the Rabin tribunal", that the applicant was not unfairly constructively dismissed; that the respondents were not in breach of her contract and that she was not discriminated against by way of victimisation pursuant to section 2(1)(a) of the Race Relations Act 1976.

1. The matter had come before a different division of this tribunal on 10th March 2000 as a preliminary issue and that tribunal decided that there was one matter which required further consideration at a full appeal hearing. That is a point raised at paragraph 1.2 of the original grounds of appeal and reads as follows:

" 'The only matters which will be considered in support of Ms Chamber's claims will be those which were not dealt with by the Prevezer Tribunal and which occurred on or after 24 March 1997' "

That was a preliminary ruling made by the Rabin tribunal and accepted at the commencement of its proceedings.

2. The ground of appeal is that the Rabin tribunal did not follows its own ruling. It allowed supervision in via the back door. This complaint had been dealt with by the Prevezer tribunal and dated back to January 1997. However the issue of the clamping of the car and the disciplinary proceedings were not allowed to be introduced, even though they had never been dealt with by the Prevezer tribunal and the disciplinary event did not occur before the cut off date of 24th March 1997.
3. On that narrow point alone, the hearing of full argument has proceeded and we have been assisted by skeleton arguments on each side. The appellant has been represented today by Mr Harrison and the respondent by Mr Moffett who has appeared for the respondent hitherto as well. Each side has submitted lengthy submissions in their skeleton arguments and have amplified those arguments orally.
4. We have had regard to the contents of the appellant's application and we note that the first ground of complaint was that on the 26th March 1997 she had been disciplined for telling two senior staff members not to report to management that she had fallen asleep on duty. Written evidence was produced by the respondent from two witnesses. Neither statement supported or substantiated the allegation. One of the witnesses attended the disciplinary hearing and failed to give evidence on that issue. Despite the appellant's strongly denying this allegation at the disciplinary hearing and the respondent's failing to produce any evidence on it, the appellant was found guilty of something for which there was no evidence. Similarly, we note that her second ground of complaint is that she was accused of driving the unit car when it was clamped in December 1996. The log book for the home where the appellant worked confirmed her version of events surrounding the clamping of the vehicle and it was clear that somebody else had been driving the car because that person had left a full account in the log book. The appellant was unable to clear her name because of the unwillingness by the respondent to produce the log book, although she had recently made contact with the actual driver and had a sworn affidavit from that person to substantiate that she had been wrongly accused in that allegation. Those were two out of the three grounds of complaint which were before the Rabin tribunal and which were excluded from consideration in their totality by the preliminary ruling that matters before 24th March 1997 should not be considered.
5. It is common ground that findings of fact by the Prevezer tribunal were binding on the appellant but we note that the Rabin tribunal commenced conclusions at page 15 of their decision (page 22 of our bundle) by saying that they agreed with Counsel that this case really turns on the question of credibility.
6. The issue of credibility should be decided on all the evidence and not part of it, because if anything is excluded, it may exclude that which would be of tilting value in a conclusion about the matter of credibility.
7. Accordingly, we consider that the appeal as put forward by Mr Harrison should prevail today. We find that the Rabin tribunal erred because it precluded consideration of some of the evidence upon which its decision as to credibility should have been reached. It therefore debarred itself from a fair trial of the matters before it.
8. The matter should be remitted to an Employment Tribunal totally differently constituted from either of the previous two tribunals for a full consideration of the grounds of the appellant's complaints which she submitted in her application form dated 30th June 1998. We have deliberately not gone into the facts because of course those are the matters upon which the credibility issue will be decided. We therefore think best not say anything more about the facts. We direct that the papers in both the other cases should be available to the newly constituted Employment Tribunal, but there should be no access to them unless the need arises.