United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR DON HUGHES (Representative)


 


LORD JOHNSTON: This is a preliminary hearing at the instance of the appellant employer in respect of his appeal against a finding of the Employment Tribunal that a former employee of his, the respondent, had been unfairly dismissed from her employment with his company, although compensation was denied on the basis of 100% contribution and also that she had been discriminated against in terms of the Sex Discrimination Act 1975 by reason of the way that it was maintained she was treated by the employer in the course of her employment or the latter stages of it.

1. Mr Hughes, who is a director of the appellants, appeared to represent the company, and launched a strong argument that the findings of the tribunal in respect of unfair dismissal, which are in paragraphs 4 and 5 of the decision, and the findings in relation to sex discrimination, in terms of paragraphs 11 and 12 of the decision, were unfounded in fact essentially, in a sense that they were contrary to the evidence that should have been accepted by the tribunal, both in respect of the nature of unfairness and in respect of sex discrimination.
2. It is important to understand the background of the matter which was to the effect that on the day of the hearing, for reasons which we completely accept, the appellants were not in a position to lead any oral evidence from the witnesses who might otherwise have had important evidence to give in relation to this matter, because they were either ill, on holiday or required for the servicing or running of the nursing home, which was the enterprise that the appellants ran. The position therefore was that on the morning Mr Hughes, again representing the company, was only able to tender to the tribunal written documents of evidence which are before us, starting at page 13 of the bundle. He maintained before us that within a very short time, "three minutes" was the phrase used, of the start of the hearing he felt "he was bound to lose" by reason of the attitude of the Chairman, not least to the fact she expressed some irritation that there were no witnesses available in support the company's position. We shall return to that point.
3. It is also important however to bear in mind that in accordance with the history of the case given to us by the appellants, there was a hearing listed before the tribunal initially on 18th October 1999, which was apparently rescheduled for 10th December 1999 and again rescheduled for 21st January 2000, at which it is said that the company had witnesses available to attend and give evidence and indeed Mr Hughes himself had made considerable efforts to be present at the hearing in question, but it was postponed at the very last minute by a telephone calls from the tribunal staff indicating that the Chairman had suffered a bereavement and that the hearing was cancelled. We regard it as highly significant that at that hearing witnesses were available and could have given oral evidence if it had been allowed to proceed and the reason it did not proceed was for no fault of the appellants.
4. We have to say that looking at the substance of the arguments presented to us both in relation to unfair dismissal and sex discrimination, being entirely based upon evidential assertions effectively that the tribunal got it wrong, are not matters that we can take into account at this stage of the process. The tribunal have determined in the paragraphs we have mentioned, that the dismissal for conduct reasons, which is an acceptable reason, but they have also determined it was procedurally handled unfairly which was a position which the tribunal were entitled to reach upon the evidence, albeit contrary to the position taken up the company. On the other hand, no award of compensation was made because it was held that in the equities of the position by reason of the impertinent conduct of the respondent, that justified making no award at all on grounds of 100% contribution by conduct.
5. With regard to the position in relation to sex discrimination, again the tribunal have made findings which were to the effect that the respondent was being treated unfairly or unfavourably to her detriment by reason at least prima facie of the fact that she was pregnant. She also apparently had not received or failed to receive a pay rise, albeit that all other employees got one. Again, Mr Hughes argued before us that these decisions or views were contrary to the evidence that he had presented to the tribunal and particularly he complained that it appeared the tribunal had ignored the evidence that he had tendered in the written statements. It is perfectly apparent to us, not least from the affidavit lodged by the Chairman, that the evidence in question was not ignored but rather rejected by reason of the fact that they did not consider it should find favour with them as opposed to the evidence of the respondent.
6. In these circumstances, we do not consider that there is any case to argue at a full hearing in relation to the substance of the position with regard to unfair dismissal and sex discrimination.
7. On the other hand we are seriously concerned that the appellants felt disadvantaged by the fact that having been in a position at the earlier hearing to proceed with witnesses, which might well have made a difference to the outcome of the case, as opposed to by merely submitting written statements, at the hearing in question no such witnesses were available. We would not for a moment suggest that there is any duty in general terms on the part of a Chairman of an Employment Tribunal to advise a party as to his or her rights or duties or indeed what he or she should do in a particular situation such as may develop. But the important fact to bear in mind in this case is that the appellants had been previously in a position to proceed with full evidence and had been denied that opportunity. Mr Hughes maintained to us that he did not know that he could apply for a postponement on the morning of the hearing in question with which we are concerned, and it is singularly unfortunate that he did not seek legal advice beforehand to ascertain what he could or should do when he realised he could not present his verbal evidence. In the particular and unusual position in this case, we consider it is at least arguable that the Chairman at the outset, when appraised of the fact that the witnesses were not available, and in the knowledge of the circumstances surrounding the cancellation of the previous hearing should have expressly asked Mr Hughes whether he wanted a postponement and by failing to do prejudiced his right to a fair hearing.
8. Having said that however, this being a preliminary hearing, we consider that there is a case to try, we put it no higher than that, as to whether by being disadvantaged as he was, Mr Hughes is entitled to successfully argue that the hearing of the tribunal disadvantaged him to the point of unfairness when it came to doing justice between the parties. In these circumstances, we are prepared to move this case on to a full hearing but only on that very narrow point. If it is established to the satisfaction of a full hearing that the company was disadvantaged by having to proceed without the oral testimony of its witnesses, and that it would have made a material difference, there may be a question as to whether the whole matter should be tried again before a new Employment Tribunal. On that very narrow basis and purely upon that basis, we emphasise that this is merely a preliminary view based on whether or not there is a stateable case. We offer no view as to what the ultimate outcome should be. We will move this case on to a full hearing on that basis and limited to those points.