United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S FRENCH (of Counsel) Instructed by: Messrs Newtons Solicitors 22 Fitzjohn's Avenue London NW3 5NB


 


MR JUSTICE MAURICE KAY: This appeal is listed before us today for a preliminary hearing. The appellant is an Afro-Caribbean woman who worked as a residential careworker for the respondents. It is not necessary for us to go into detail about the circumstances relating to the history of her employment. The findings of the Employment Tribunal, following a four-day hearing, are carefully set out in its decision.

1. The respondents ultimately dismissed the appellant and she made an application to the Employment Tribunal alleging that her treatment at the hands of the respondents, culminating in her dismissal, amounted to unlawful sex and race discrimination.
2. The appellant had a lot of experience as a careworker but had only worked for the respondents for a few months. She started on 27th April 1998.
3. The matters giving rise to the appellant's dispute with the respondents arose from an incident in which it was alleged that she had manhandled a person who was a resident in the home where she worked. There were factual disputes about what happened, as far as the appellant is concerned, and also in relation to other people who were involved or may have been involved or may have witnessed that incident.
4. In due course, there were disciplinary proceedings against this appellant, although not against another person, Mr Cooper, whom she thought or said was also involved. The upshot of all that is that in the end the appellant was dismissed.
5. There was much about the appellant's dismissal that was unsatisfactory so far as the law of unfair dismissal is concerned. The Employment Tribunal made that very clear. Indeed, they added this:

"40 … we have no doubt that had the Applicant enough service to claim unfair dismissal she would have won her case resoundingly. …"

We agree with that assessment. The fact is, however, that she did not have the necessary period of qualification to bring a complaint of unfair dismissal.

6. The appellant was therefore seeking to establish that the way in which she had been treated was such that she had been treated less favourably than others on the grounds of her sex or race.
7. The Employment Tribunal came to the clear conclusion that that was not so; that although there was much to criticise in the way in which she had been dismissed, the tribunal accepted the explanations of the respondents as to why she was dismissed and were satisfied that it was not a matter of sex or race discrimination.
8. The appellant had represented herself in those proceedings before the Employment Tribunal. When she appealed to the EAT she did so pursuant to grounds of appeal prepared by an employment consultant. They fell into two categories. The first was a procedural complaint, to which we shall return. The second was a complaint that the findings were perverse.
9. Before us today Mr French of Counsel has represented the appellant, and wisely he has not pursued this second ground of appeal. The question therefore arises as to whether there is anything in what we shall call 'the procedural complaint'.
10. Mr French, very helpfully, condenses the complaint into two headings. The first has to do with the failure of the respondents to comply with orders that had been made by the tribunal about the disclosure of documents and witness statements.
11. This was a case that was set down for a five day hearing, although apparently upon information from the respondents acting through its lawyers, the tribunal eventually reduced the estimate to one of either three or four days.
12. The appellant either complied in detail with all the procedural orders that had preceded the hearing or if she did not do so any non-compliance was marginal and insignificant. The respondents, on the other hand, did not timeously comply with the orders, indeed, as at the first day of the hearing on 18th August 1999, the respondents had failed to comply in quite significant respects.
13. The complaint made by the appellant is that when she came as a litigant in person to the Employment Tribunal to conduct her case, she was provided for the first time with a bundle of documents on that day and that some of the matters to which she was entitled, for example, witness statements of the respondents' witnesses, were not supplied until the second day, of what, in the end, was a four day hearing.
14. The failure to comply on the part of the respondents ought not to be condoned and is a matter of justifiable criticism. The question is how the Employment Tribunal should have dealt with it when it arose.
15. The appellant's complaints about that are contained in an affidavit and we also have the benefit of the comments of the Chairman and also one of the members of the tribunal. The comments of the Chairman are in the form of extended reasons for a refusal to review the initial decision dismissing the appellant's complaints.
16. It is apparent to us that when the appellant legitimately complained about the respondents' defaults, the Employment Tribunal took her complaints with appropriate seriousness. The tribunal gave her time to read the papers and she availed herself of that opportunity. The tribunal also offered her an adjournment. However, she preferred to proceed.
17. As matters developed, it seems that on the second day, when the witness statements were belatedly forthcoming, the tribunal again offered an adjournment, which the appellant declined. We infer that from the letter of the tribunal member, at page 44 of our bundle.
18. The way in which the hearing progressed was that the first three days were on successive days, 18th, 19th and 20th August, and then there was an adjournment until 7th September. On 20th August the tribunal invited the appellant to read the papers again and when the tribunal reassembled on 7th September the tribunal offered her the opportunity to re-open her case in the light of anything which she had read in the documents or in the light of any evidence she had obtained since the case had started. Once again, she declined that offer. All this is dealt with in the extended reasons for the refusal to review the original decision.
19. It was entirely appropriate, indeed, necessary for the Employment Tribunal to offer adjournments in the way in which they did. However, upon the appellant declining and repeatedly declining the offers of adjournments, in our judgment, it cannot be said that the Employment Tribunal committed any error of law in allowing the matter to proceed. We do not underestimate the difficulties which the appellant no doubt faced, particularly on the first and to some extent the second day of the hearing; however, she was offered all the facilities which justice required she be offered. In our judgment, it was not incumbent upon the Employment Tribunal to go behind her refusal of the offered adjournments. Both parties were indicating a willingness to proceed and in those circumstances, it was not in any way an arguable error of law to allow the matter to proceed. Moreover, the Employment Tribunal acted with conspicuous fairness at the end of the third day when they created the situation which would have permitted the appellant to re-open various matters at the resumed hearing, if she had wished to do so, but she declined that offer.
20. We can see no arguable point of law arising from the way in which the Employment Tribunal approached the late disclosure of material. We are satisfied that no injustice has arisen from it and we are also entirely satisfied that the Employment Tribunal conducted itself properly, within the law and within the ambit of its discretion when considering that matter.
21. We then turn to the second matter about which complaint of a procedural kind is made. The appellant had with her at the hearing tape recordings of the disciplinary hearing, which had preceded her eventual dismissal. She complains that the Employment Tribunal did not listen to the tapes, which she had in her possession. The particular point which she seeks to make about that is that, according to her, there is something on the tapes relating to the witness, Mr Nolan and what he said in the course of the disciplinary proceedings, which might have cast doubt on his credibility and therefore might have enabled the appellant to obtain more favourable findings of fact.
22. We say at once that upon a perusal of the papers in this case, the appellant has at all times rather over-emphasised the importance of Mr Nolan in what took place, but that is not wholly germane to what we now have to decide.
23. The appellant's complaint is that the tribunal would not permit the playing of the tapes. In her affidavit she states:

"13 … At that point in the evidence of Mr Nolan where I wished to challenge what he said by reference to the tapes I asked the Chairman if they could be played and he would not allow it. He said that a decision would be made later whether they were necessary but in fact that never happened. …"

24. The Chairman in the extended reasons upon the refusal to review deals with the tapes rather differently. He states:

"4 … Ms Rae asks us to listen to tapes for the disciplinary hearing, but concedes that she had them at the time of the hearing. She is wrong if she claims that the Tribunal refused to hear them. She said she had them with her, but did not ask to play them. …"

Again, the member of the tribunal who has written a letter setting out her recollections confirms that account.

25. In the event, the Chairman did listen to the tapes and read a transcript that had been produced when considering whether to review the decision in the light of fresh evidence. He declined a review on that ground and declined quite properly. In the course of doing so, he said this:

"4 … I have now had an opportunity to listen to them and to read the transcript now produced. Whilst, of course, it is more detailed that the evidence we heard, it does not add anything to the substance of these proceedings and certainly does not display evidence from which a Tribunal could infer that Ms Rae's race or gender was a factor in Mr Nolan's decision to issue a warning, or more seriously, Mr Jones' decision to dismiss."

26. It is clear from what we have just said that both the tapes and a transcript of them are in existence. We have asked Mr French what it is on the tapes that may have had importance in the case. In that, he is unable to assist. The case, as advanced, is that they disclose some inconsistency on the part of Mr Nolan, which, if exposed, would undermine his credibility, and, in the circumstances, that would assist the appellant's case.
27. In our judgment, the Chairman acted entirely lawfully and correctly in refusing to review the decision in the light of the tapes and the transcript that were supplied to him. Moreover, we do not think that it can be arguable that any procedural unfairness arose at the original hearing in relation to the tapes, which were in the possession of the appellant. We are unable to find that the Employment Tribunal refused to listen to them. It seems that in the event they were never asked to listen to them. Moreover, there were occasions and most particularly the occasion on the final day of the hearing, when the appellant was asked if she wished to re-open any matter and, as we have already indicated, she said that she had no such wish.
28. We do not consider that there is any arguable point of law, which could sustain an appeal by reference to the tapes, or the transcript of them. It follows from what we have said that we do not find any arguable ground of appeal in this case and we shall therefore dismiss it as this stage.