United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANTS


 


MR JUSTICE LINDSAY (PRESIDENT):

1. This is a hearing, by way of a preliminary hearing, of the appeal of the Aaroncare Partnership in the matter Aaroncare against Mrs T Davies. The decision of the Tribunal at Liverpool under the Chairmanship of Mr E T Connolly was as follows:-

"The unanimous decision of the Tribunal is:-

(i) The applicant's complaint that the respondents had unlawfully discriminated against her by victimising her contrary to the provisions of the Sex Discrimination Act 1975, as amended, is well-founded;

(ii) The respondents are ordered to pay the application the sum of £1,500.00 as compensation".

2. It is important to note here that the IT1 thus ruled upon was dated the 28^th January 1998. There had been an earlier IT1 in respect of which there had been a compromise. In its Notice of Appeal Aaroncare persists in barking up the wrong tree. It is quite plain that a case can be made for victimisation after dismissal of earlier proceedings but on account of the earlier proceedings having been brought, notwithstanding that the earlier proceedings were settled.
3. Fresh victimisation is here complained of by a fresh IT1 and Aaroncare's repeated cry that it settled the earlier proceedings does not assist it at all. However, from our study of the papers, a number of points do appear to be arguable. The first is this; the form of victimisation complained of in the new IT1 was that, in a manner not usually done, Aaroncare wrote to nursing homes in the area to advise them why it was that Mrs Davies had been dismissed. There was no reference in the IT1 to the giving of a bad reference or any reference by Aaroncare for Mrs Davies or as to the withholding by Aaroncare of a reference from Mrs Davies. Where, as here, a party does not appear and is not represented at the Tribunal below, it is especially important for that Tribunal to stay within the strict parameters of the IT1 complaint. However, the Tribunal below inferred that a reference (and, presumably, it is also to be inferred, an unfair or unjust reference) had been given by Aaroncare and they inferred that firstly, despite no proof that Aaroncare had given any reference, secondly, apparently, (so far as we can tell) no proof that Mrs Davies had identified Aaroncare as an employer from whom a reference could sought or, thirdly, that the new prospective employer had approached Aaroncare. That was inferred despite Aaroncare's statement that they had given no reference and, as stated, despite there being no allegation in the IT1 as to references.
4. Although in its paragraph 19 the Tribunal does not say that anything to do with the reference or its absence was victimisation, it is at least arguable that the Tribunal erred in law in considering the subject of reference, because, at lowest, their holding that Aaroncare had been untruthful as to the reference and their holding that either Aaroncare had withheld a reference or had given an unfairly bad one may have coloured their views on the only pleaded form of victimisation and may have also affected quantification of damages - see in particular the mention of the reference at the end of the Tribunal's paragraph 20. So there is a first arguable point.
5. A second point is this. The only "pleaded" form of victimisation, was circularisation by Aaroncare in writing to local residential and nursing homes of the alleged reasons for Mrs Davies' dismissal. It is arguable that the onus of proof rightly held to lie on Mrs Davies - see paragraph 16 of the decision - was not discharged. Not a single letter was shown to have been written by Aaroncare on the point. Aaroncare in terms denied writing any such letters. There is no evidence apparent to us from the Tribunal's decision that even enquiry was made of the local homes to find out if any such letters had been received by them, nor even to find out if oral and adverse observations had been made by Aaroncare to the management of local homes. It can hardly been inferred simply from the fact that on one occasion Mrs Davies failed to get a job which she thought she was going to get that Aaroncare must have in some way vilified her. Of course, Tribunal's are given a wide ability to draw inferences but it is at least arguable that here the raw materials for inference were not present and that to draw the inference that the pleaded complaint was made good was thus an error of law. That is a second arguable point.
6. A third is this. It is not clear whether the Tribunal does in fact draw that inference because paragraph 19 seems to regard the threat to write local nursing homes to have been the discriminatory event. Paragraph 19 refers to Aaroncare stating that they were going to inform others and that the discrimination was held by the Tribunal to have occurred when Aaroncare said, in their letter, that they would write to local nursing homes. We do not say that a threat of less favourable treatment cannot itself be less favourable treatment but the difficulty here is that the event in fact complained of in the IT1 appears not to have been the mere threat, but the actual writing of the offensive letters. What the IT1 said is:-

"It is submitted that the respondent's do not write to all nursing homes in the area to advise of an ex-employee's reasons for dismissal unless they have been involved in malpractice or abuse of any kind".

7. It may also be arguable that a mere threat not carried out in relation to a former employee would not satisfy the Coote v Granada test. It is arguable that, if the Tribunal truly held no more than that had here been a threat that Aaroncare would write to others, then that was not the case which the IT1 required Aaroncare to meet and that to hold that to have been the relevant discriminatory event would thus be improper, given, especially, that Aaroncare did not attend was represented at the hearing. So that is a fourth point.
8. It is difficult to feel any sympathy for Aaroncare which either was or threatened to be vindictive and which had not taken the trouble to appear at the Employment Tribunal or indeed to appear before us today. But, if, within 21 days after the its being sent a copy of the transcript of this judgment Aaroncare amends the Notice of Appeal to take all or any of the four points we have just described we shall permit those added points only to go to a full hearing. We do not permit the grounds stated in paragraph 6 of the current Notice of Appeal to go to a full hearing.
9. So far as concerns Chairman's notes of evidence, we do see that those will be desirable, indeed necessary, if the Notice of Appeal is amended in the way that we have mentioned. So if there is an amendment within the 21 day period that we have just prescribed then Chairman's notes should be requested. The notes should cover all evidence, if any, of the circularisation or not by Aaroncare of local nursing homes in any way relating to Mrs Davies and of the giving or withholding of any reference as to Mrs Davies by Aaroncare or evidence from which it could be inferred that Aaroncare had either given or withheld a reference, in particular any evidence showing that Knowsley Care Society, the prospective new employer of Mrs Davies, knew that Aaroncare had employed Mrs Davies and had approached Aaroncare for a reference. Evidence on those subjects should be requested to be included in the request for Chairman's notes of evidence. When the matter comes back, we estimate it will take half a day