United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A BURNS (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE WILCOX: The Appellant is an Inspector in the MOD Police Force. He appeals from a decision of the Employment Tribunal held at Southampton on 11 and 12 January 1999.

1. The grounds of his appeal relate to his applications. Firstly, in relation to Sex Discrimination. Secondly, he made an application under Section 44 (e) of the principal Act and thirdly, arising from the appeal there is a procedural point taken insofar as the Tribunal hearing his complaints took the course of finding that there was no case to answer, in relation to his complaints as to Sex Discrimination and as to the Health and Safety complaint under Section 44 (e).
2. We will deal with the complaints first of all as they are set out in the Notice of Appeal. Firstly, we find that with regard to (the adjudication) of the Tribunal in relation to the sex discrimination complaint there was an abundance of evidence before them that would warrant them coming to the conclusion, that there was no discrimination this being founded upon his evidence in choosing a woman Police Sergeant who was a single woman with small children as the comparator. His own evidence confirmed and was sufficient for them to come to the conclusion that she was not a proper comparator and there was no substance in that particular complaint.
3. So far as the Health and Safety complaint was concerned, we have considered the submissions with very great care. It strikes us that there is nothing arguable in terms of a complaint of perversity or an arguable point of law. We come to the conclusion that the Tribunal were justified on the facts before them, at looking at the position of this Appellant as a member of a service, perhaps analogous to an emergency service albeit without the obligations and stress that a member of an emergency service, such as the Fire Brigade or the regular Police have. In other words, they are entitled to take the view that it was a proper analogy, in so doing they were being generous and kind to him. They were entitled, as an experienced Tribunal with persons in the regulation of employment and working hours, to conclude as they did that there was no evidence that would warrant his complaint.
4. We do however, have reservations about the procedure in this case. The reservations amount to this. Here was a man who was not represented. The course taken was a proper course, namely to entertain a submission of no case to answer, but we do feel that it is arguable in the circumstances of this case that a Tribunal Chairman might well have spelt out with greater clarity than appears from the original reasons and extended reasons given, to the consequences of not formally challenging the evidence, that is, challenging the evidence by way of cross examination or by calling contradictory evidence.
5. We therefore give leave for this matter to go to a full hearing, limited to that question, namely was he deprived of the opportunity to effectively challenge the evidence in the documentation adduced before him. It is limited to that issue.
6. As we indicated in the course of argument we were sympathetic in relation to the question as to costs because it is clear that the Tribunal Chairman upon his own initiative took the view that this was not a strike out case before hearing the evidence. It was proper therefore that the evidence should have been heard and it seems to us arguably wrong to penalise the Appellant for pursuing the matter, having been given specific leave by the Tribunal Chairman. We think therefore that this second limited matter can also go to a full hearing.
7. The Category of hearing will be C with a time of half a day. The normal direction is to be given as to skeleton arguments and the preparation of a sensible chronology in this case. This is something that always does assist a Tribunal. To that extent therefore, this application succeeds.