United Kingdom Employment Appeal Tribunal

APPEARANCE

 

For the Appellant	MR J CAVANAGH (of Counsel) Nabarro Nathanson 1 South Quay Victoria Quays Sheffield S2 5SY


 
JUDGE ALTMAN
1. This is an appeal from the decision of the Employment Tribunal after a hearing at London (South) over three days in May 1999 and February 2000. The Employment Tribunal made a finding of both sexual discrimination and victimisation against the Appellants and the matter comes before us today by way of preliminary hearing to determine if there are arguable points of law raised on the appeal so as to permit this matter to go forward to full hearing before the Employment Appeal Tribunal. It may be helpful to identify the essential issues as they now stand.
2. The Respondent who is an employee of the Appellants, complained that she was sexually harassed by a client of the Appellants and that the Appellants failed to give her support in that and, indeed, shrugged off her complaint as a result of which, the Respondent maintained, she resigned.
3. During the period of her notice she was summarily dismissed ostensibly for making damaging remarks about the Appellants to their client. There were issues of fact before the Employment Tribunal; first as to whether or not the Appellants had given support in the face of harassment; secondly as to whether or not the Respondent had resigned because of this or for other reasons; thirdly, whether Mr Bradley who summarily dismissed the Respondent did so genuinely believing and reasonably believing in the damaging remarks or because he was victimising the Respondent over earlier matters.
4. The issue of credibility on the sex discrimination matter which related to the allegation of lack of support of the Respondent leading to her resignation was affected by the issue as to the way in which Mr Bradley conducted the summary dismissal and the way in which his evidence came out that he had allegedly a genuine belief in the truthfulness of the complaint about what the Respondent was supposed to have said to the client. It is clear that that was a central issue of credibility in the case.
5. It arose because Mr Bradley said he had received such a complaint and orally explained what had happened to the person preparing the documents for the Tribunal, on behalf of the Appellants particularly the Further and Better Particulars. Towards the end of the Appellants' case before the Tribunal the Respondent produced a memorandum purporting to have been written by Mr Bradley to the person compiling the Further and Better Particulars setting out in writing the information to be included. That document purported to state that the information that Mr Bradley received as to what had been going on was from a Mr Steve Pascoe, the Site Supervisor of the client. It was common ground that Mr Bradley must have known that Steven Pascoe was in fact an employee of the Appellants. Two things flow from that, so far as credibility and indeed so far as the overall decision are concerned. First, the fact that the Respondent made some comments about the company of the Appellants to an employee of the Appellants alone, so that it was an internal matter, could hardly have justified summary dismissal on the grounds of passing complaints to a client and secondly, the document, if it is true must have been a deliberate fabrication by Mr Bradley as to the assertion that Mr Pascoe was an employee of the client so that information passed to him went to the client rather than the Appellants.
6. The inference from that document it appears, if true, would be that Mr Bradley had manufactured a complaint in order to justify summary dismissal and that he later deliberately passed incorrect information to the person compiling the documents for the Tribunal. Accordingly the response of the Appellants when confronted by that document before the Tribunal, so we are told, was that the document was a forgery. We are told that the Appellants sought to rebut the Respondent's evidence that she received that document from Mr Hanley by calling Mr Hanley to give evidence to the contrary.
7. It is the Appellants' case that that issue of the reliability of that document in relation to the issue of credibility was canvassed before the Tribunal. We have been referred to paragraph 9 of the decision of the Employment Tribunal in which the Tribunal identified the conflict over what they described as this "internal document," namely the document providing the Further and Better Particulars which asserted that Mr Pascoe was an employee of the client rather than of the Appellants. They commence the paragraph by saying

"Attempts have obviously been made by one side or the other, possibly both, to deceive us."

They conclude the paragraph by saying: -

"We could only conclude that the case was being presented to us in a partial light."

They then wind up their analysis with the words

"We say no more".

8. On behalf of the Appellants it is argued that the Employment Tribunal did not seek to make findings of fact as to where the truth lay or if they did, they did not disclose those findings to any reader of the decision. It also said that if they did reach such a conclusion they did not give any indication of the grounds upon which they reached that decision.
9. In the following paragraph the Employment Tribunal reject the evidence of Mr Bradley as "not standing up to cross examination" and it is pointed that no basis for that assertion is set out within the body of the decision itself and that in that context no doubt reference is made to the difficulties found by Employment Appeal Tribunals when seeking to analyse a decision of a Tribunal which says which evidence is preferred without any indications to why. But, it is also pointed out that in paragraph 23 when the Tribunal is making its findings of fact they say, as to the internal memorandum

"From an internal memorandum… which was a draft reply to a request … for… Particulars, … we have concluded that the person who passed the information was known to Centuryan to be Steve Pascoe."

10. The point is made that there is an implicit finding of acceptance of the authenticity of that memorandum in paragraph 23 and it is argued that that is inconsistent with what is said in paragraph 9. The issue of law seems to be, first, the way in which, in paragraphs 9 and 10, the Employment Tribunal approached this fundamental issue of fact and secondly, the way in which the two paragraphs 9 and 23 relate to each other in connection with the first of those issues. We are aware of a case which may assist the parties and the Employment Appeal Tribunal, that is Morris –v- London Iron & Steel Co. Ltd (1987) ICR 855, where at page 864(b) May LJ sets out some general principles for Judges and Tribunals when seeking to resolve conflicts on issues of fact.
11. There is another matter not yet raised on the appeal in relation to which Mr Cavanagh on behalf of the Appellants seeks leave to amend the Notice of Appeal and that relates to the finding of victimisation as set out in paragraphs 39 and 40. What he says is that whereas the Employment Tribunal make a finding of a causal link between harassment and summary dismissal they err in law in concluding that because there is a causal link, the reason for the summary dismissal was harassment. He says that the reason for the summary dismissal is not related on the finding of the Employment Tribunal to victimisation in the way required by the statute. He argues that there is a difference between dismissing someone because they resigned and dismissing someone because they have been harassed. He says that where the explanation for the resignation may be harassment, that does not make a very good reason for finding summary dismissal to be victimisation. That also seems to us to raise an arguable point of law. We have gone into the matter in some detail to identify the issues. We have spent longer than usual on this judgment so as to identify what seem to us to be the central issues for the appeal.
12. It is important that the Appellant establishes, if this appeal is to proceed that the authenticity of this document was canvassed in the way he alleges in evidence before the Employment Tribunal. It is not necessary for us to order Notes of Evidence at this stage because what was actually said is not, it seems to us, relevant to the arguments. However, whether it was canvassed is clearly relevant.
13. We invite the parties, who are both apparently represented, therefore to seek to agree an account of the way in which this matter was canvassed before the Employment Tribunal. If they are unable to reach such an agreement then it may be necessary to make an application for Notes of Evidence which would then be required. However, we earnestly hope that such a course can be avoided particularly when we can see no reason on the information we have as to why the Chairman should be put to the trouble as having to transcribe all his notes about that matter.
14. There is however, a final issue and that is that Mr Cavanagh is uncertain of the part played in the Tribunal hearings by the witness Miss Hughes and Ms N Contractor (sic; the Appellant are asked to notify the Employment Appeal Tribunal as to who this should refer to) and he does not wish to take any false points about her evidence. It is the Appellants recollection drawn from the bundle that was before the Tribunal that their written statements were before the Tribunal as part of the evidence but that they did not give oral evidence. That is again a matter to confirm with the Respondents and if there is an important disagreement to seek clarification from the Chairman if necessary as to the part played by those witnesses in the proceedings. In those circumstances, we would ask the Chairman to notify the Employment Appeal Tribunal as to whether or not Miss Hughes was a witness who gave oral evidence and secondly, whether she was a witness whose witness statement was provided to the Tribunal.
This matter will be listed for 1 day, category C.