United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S BLOCH (OF COUNSEL) INSRUCTED BY: SHORT RICHARD & FORTH 4 MOSLEY STREET NEWCASTLE UPON TYNE NE1 1SR
For the Respondent	MR TESS GILL (OF COUNSEL) INSTRUCTED BY MORTONS 17 FAWCETT STREET SUNDERLAND TYNE & WEAR SR1 1RC


 


MR JUSTICE LINDSAY (PRESIDENT):

1. In point of time the first decision that was made by the Employment Tribunal was a decision that was sent to the parties on 13^th November 1996, after a hearing of some 5 days plus 1 day for deliberations.
2. The Chairman on that occasion, the decision having been the decision of the Industrial Tribunal at Middlesborough, was Mr J C Sutcliffe. The decision that was arrived at was unanimous and was that the Applicant, Ms O'Donoghue, had been discriminated against on the grounds of her sex, contrary to section 6, subsection 1 of the Act. The hearing was adjourned to hear submissions on remedies. Amongst the number of appeals before us is an appeal on the emergent remedies decisions.
3. We are at the moment dealing with the first appeal listed before us. It is obviously logically also the first one proper to be dealt with and at the core of that first appeal, there is a paragraph 18 of the Tribunal's decision that runs as follows:-

"Nevertheless having heard all the evidence and considered the exhibits the Tribunal agreed that the actions of both the applicants seniors in her department and of the councillors on the interviewing panel were affected, not only by Mr Franklin's advice that the Applicant was not an easy person to work with or good with staff but also the Applicant's strong feminist views which she had freely expressed over a period of years. It can truly be said that the Applicant would "not have been treated in the way in which she was put for her sex. We find that she was discriminated against on the grounds of her sex.

4. It is not necessary at this stage to explore the arguments for and against the way in which they dealt with the matter in that paragraph but it is quite plain that in the skeleton argument which Mr Bloch raises on behalf of Redcar and Cleveland Council that there are a number of allegations, that there was no evidence of this and no evidence of that. These are not marginal allegations but central ones. For example, in paragraph 26 he says:-

"There was no evidence that the councillors were influenced by views expressed over a number of years and more pertinently there was no evidence of discriminatory attitude manifesting itself at or around the time of interview."

And a little later in paragraph 29:-

"(b) There was no evidence that any of the councillors were affected in their decision by Ms O'Donoghue's views

(c) See there was no evidence and no finding against any of the other five councillors

(d) there was no evidence against any of the applicant seniors and as to what the evidence had been

(e) the evidence of each of the five interviewing councillors called by Ms O'Donoghue and the counsel was that gender had played no role in their decision."

That, as it seems to us, is by no means the only attack that Mr Bloch makes on the decision and in particular upon its paragraphs 16–18, but it is plainly a material part and it is not a part which he wishes to abandon.

5. We have heard argument that indicates that the case for the Appellant can be put in other ways but, for all that, that aspect of the case is not abandoned. Well, in the ordinary way, how would that sort of argument be dealt with? The answer to that is that when there is a material assertion that there was no evidence of this or no evidence of that one has to ask for the Chairman's notes. The difficulty about that is that when this appeal first came before the EAT, which was as long ago as the 16^th July 1998, it was then thought that that day's hearing would be the first or the only day of a substantive hearing. It was adjourned because of the later decisions and later appeals. But there was a ruling as follows:-

"And upon the Application of the Appellants, [that is to say Redcar] for Chairman's notes of evidence, the Tribunal orders that the aforesaid Application be refused."

6. As we have understood the reasoning of that day, it was not that they were refused as irrelevant or unnecessary but that already the time was such that they should have been asked for long before that. That seems to have been the chief factor in them not being ordered. The matter has substantially changed since the 16^th July 1998 in the sense that we now have a case which in any event has been delayed very substantially beyond the 16^th July 1998 without the parties themselves being to blame because the arguments that need to put on various appeals have grown as time has passed and as further decisions have been made.
7. The matter came before Mr Justice Morison as president in chambers on 20^th April 1999 when, according to the form of order:-

"No order is made in relation to the meeting for directions in accordance with the judgment of the Employment Appeal Tribunal. It is directed that the Appeal be listed for four days before the President."

The parties seem to differ as to what was said and done on that occasion. Redcar, through Mr Bloch, indicates that there was discussion on the subject of Chairman's notes. It was noted that they had already been refused but that at least a hope, possibly even more than that, was expressed on behalf of the President that the parties would supplement the absence of Chairman's notes by themselves composing notes of evidence which could be agreed. One might have expected that Redcar, in whose particular interest it was to obtain either Chairman's notes or an agreed note should have set quickly about getting such a subject discussed and agreed, but the timetable is such that only in this year, January 2000, does attention seem to have been paid to getting agreed material to replace the Chairman's notes which had long ago been declined. The proper course would have been promptly to pursue the subject of whether the evidence could be agreed on an agreed note and, failing agreement, to have sought directions on the subject so that the EAT could have ruled long before now as to whether Chairman's notes should be asked for. But nothing was done, as it seems to us, until January 2000.

8. The notes Redcar did prepare are manifestly (we have not seen them, but Ms Gill has waved them in our direction), not verbation batten notes and do not purport to be. For example, we are told that a number of councillors were cross-examined half a day each and yet the whole of the evidence has been condensed into a couple of A4 sheets. That might be a note of everything of substance that was said but it is plainly not anything like a full note. At all events, such notes as have been supplied by the Redcar Council to Ms O'Donoghue's advisers have not been agreed.
9. We take the view that without Chairman's notes or agreed notes there cannot be a truly fair hearing of this first appeal in which, as we have indicated, a good deal turns upon whether there was evidence on this or that subject or not. It might have been possible in a more perfect world to either have emerged with a note agreed between the parties or even a note of precisely what the IT1 case had been, what the evidence in chief (that was in writing) had been and that nothing had further been added by way of oral evidence from anyone - something along those lines - but nothing useful or sufficiently material has emerged. We take the view that we cannot have a fair hearing of this first appeal without Chairman's notes or, at any rate unless something further comes to pass in terms of agreement between the parties.
10. How then do we respond to that situation? We should say that we do see it as right that each appeal or, at any rate, this first appeal should, so to speak, be in a watertight compartment. There is an argument on behalf of the Redcar Council that we should consider later decisions even when considering whether there is an error of law in this first decision. That we do not see to be right and Ms Gill resisted, and we say resisted rightly, not treating this first appeal as a watertight compartment so to speak. We take the view that we cannot deal with it fairly without some better approach either agreed by the parties or supplied by way of Chairman's notes.
11. Rather than sending the matter off to be adjourned generally, even at this stage, what we propose to do is to adjourn it to come on after the other appeals that are before us. It is conceivable that by then either the parties will have come to some better arrangement as to what they can agree about the evidence or Mr Sutcliffe's notes as Chairman might have become available. We will do our best to indicate to the Tribunal in Middlesborough the urgency of the matter and it could be - we do not hold out any great hope but it could be - that with Chairman behind it, the request for a Chairman's notes could be acted upon in order to give us the notes by the fourth day, let's say, of this hearing. We adjourn the first appeal to come on in that way. We do not need to deal with any costs thrown away by the adjournment yet. That might well be material later if it does transpire that we have not been able to get the Chairman's notes in time and that the parties are still at logger heads on what was said and done but we will have leave that to the future.
12. For the moment we simply adjourn this first watertight appeal to come on later.