United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IS NEITHER PRESENT NOR REPRESENTED


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us by way of a preliminary hearing the appeal of Mrs Katherine M Scaife in the matter Scaife v Richard J Knaggs & Co, a firm of Solicitors. Mrs Scaife had been expected to attend in person today in the sense that she had, at an earlier hearing on 20 March, indicated that she had intended to appear in person but at a late stage in March she had put in a request for an adjournment on grounds which seemed to justify an adjournment and the matter, when it came on, was merely adjourned on that day. There was no indication that she was going to appear at the restored hearing other than in person. As we speak it is now 3.15pm and nothing has been heard from Mrs Scaife in relation to today's hearing. The office has telephoned her this morning but all that they got was a machine and no means of communicating with Mrs Scaife was available to the office and nothing has been heard from her and accordingly, we shall deal with the case on the merits in her absence.
2. Mrs Scaife herself is a Solicitor and she worked for the firm of solicitors, Richard J Knaggs from August 1996 to November 1996. There was a hearing at the Industrial Tribunal spread over some 6 days between 13 August and 17 December 1998, plus a further day on which the Tribunal deliberated privately on 7 January 1999. A decision of some 28 pages of typed script was sent to the parties on 11 February 1999 and it read as follows:

"The unanimous decision of the Tribunal was:

1) The applicant was not unfairly dismissed.

2) The respondent did not unlawfully discriminate against the Applicant on the ground of her sex.

3) The claim for recovery of damages for breach of contract is not well founded and is dismissed.

4) The compliant of wrongful deduction from wages is not well founded and is dismissed."

That was the decision of the Tribunal at Newcastle upon Tyne under the Chairmanship of Mr P. G. Rennie.

3. On 22 March 1999, Mrs Scaife lodged a Notice of Appeal and at that stage it specified 3 grounds:

That the decision was perverse

That the Tribunal misdirected itself as to the law

That the Tribunal erred in law, particularly in distinguishing the case from that of O' Neill v Governors of St Thomas Moore RCVA Upper School and Bedfordshire County Council [1996] IRLR 372 but Mrs Scaife did ask that she might later add to that simple list.

4. On 28 March 1999 she added 10½ pages of close typing and on 21 May she added an affidavit. We also now have a skeleton argument of 14 June. To deal with the affidavit first, it is unspecific, it is argumentative, and it fails to recognise that the Employment Appeal Tribunal can deal only with errors of law. It complains that the Tribunal did not conduct themselves fairly or reasonably, that they were biased in favour of protecting the Respondent firm and that they were unhelpful. But nothing specifically is alleged by way of words said or acts done or as to the manner of the hearing or any other detail of the kind that truly is necessary if a case of bias or prejudice is sought to be taken further forward. The Chairman Mr P.G. Rennie, as is usual in this type of case, was asked to comment and he said this:

"I note that in her affidavit Mrs Scaife contends that the Tribunal did not conduct itself fairly and reasonably, was unhelpful and was biased towards the respondent. However, she does not provide any details of these allegations. In those circumstances, I do not think it appropriate to make any comment other than that I refute the contentions and believe the Tribunal at all times acted with care and fairness."

5. We accept that refutation. The decision has every appearance of being a long, careful and fair-minded resolution of the problems that lay before the Tribunal which manifestly had some sympathy for and understanding of Mrs Scaife's particular position. At an early stage in the decision they say:

"She graduated with a second class honours degree; for the applicant to have worked full time and studied at night and then undergone full time education, all whilst bringing up two young children must have required considerable endeavour and we had a great deal of admiration for her."

The Tribunal by no means accepted Mr Knaggs or evidence on the Respondent's side without first submitting it to careful analysis. As the Employment Appeals Tribunal's Practice Direction requires, if a complaint of bias or misconduct is to be made, an affidavit has to be sworn to. Mrs Scaife has been given that opportunity and yet she has failed in her task with the chapter and verse that one needs if this kind of complaint is to be taken further forward. We do not find bias or misconduct in the Tribunal; there is no material for any such finding.

6. Now turning more generally to the case, there is a series of important facts which are found by the Tribunal:

First of all, Mrs Scaife had lied on her application form when she applied for a job with the Respondent firm. She was held to have had a sexual affair with a married male client of the firm yet she was also held, nonetheless, during the course of that affair with him, to have acted for him in his matrimonial dispute with his wife. She had deliberately failed to record the time spent acting on his behalf, contrary to the Respondent firm's ordinary accounting and costs practice. She failed also to open a file on the subject, as to which her explanation when called for, was unconvincing.

She had persuaded - this is another finding, all these are findings of the Tribunal - a fellow colleague in the office to put a misleading reference on papers, referring to the married male client. She had done all this, held the Tribunal, in order to hide the matter.

Then, when the married man's wife complained to Mr Knagg of the Respondent firm, that Mrs Scaife was acting in a manner in respect of which she was in a position of intense personal conflict, Mrs Scaife denied to Mr Knaggs that she was having an affair and asserted that the relationship with the man was merely the ordinary relationship between solicitor and client and she managed to persuade Mr Knaggs that that was so.

She again later, and convincingly at the time, had denied the sexual relationship with the male client. When she found herself pregnant by the married man she did not inform Mr Knaggs and she was then involved in a fracas with the married man's wife at the married man's home with the result that the police visited the Respondent firm's offices, greatly to the principal's extreme embarrassment. She then failed to attend to work and when asked why she had visited the married man's home she said that she had every right to speak to the father of her child, thus indicating that she had, despite repeated denials, had a sexual relationship with the client for whom she was acting in his matrimonial affairs and also that she had previously lied on the point. At that point she was summarily dismissed. As to that the Tribunal said:

11. "With some hesitation, we came to the conclusion that so far as Mr Knaggs was concerned the only relevance of the applicant's pregnancy was the fact that it confirmed both the sexual relationship (and potential professional misconduct) and falsity of the earlier denials.

A little later they say:

"In this case, the action taken against the applicant was by reason of her relationship with the client, her false denials and the effect of all that on the reputation of the respondent: the pregnancy merely established the position.

Continuing a little later they say:

"Thus, we accepted that the applicant would still have been dismissed if on 5 November 1996 - not being, or Mr Knaggs not knowing that she was pregnant - the applicant had referred to seeing not the father of her child, but her former lover. Indeed, we felt bound to accept that the outcome would have been the same - that is, the applicant would have been dismissed – if the facts had been exactly as they were save that the applicant had referred to a former lover and had been a male solicitor in the employ of the respondent. In other words, if a male solicitor had had a sexual relationship with a female matrimonial client whilst acting for that client, and particularly if he had denied the matter to Mr Knaggs, he would still have been dismissed by Mr Knaggs if and when clear evidence of that relationship became available. We rejected the applicant's contention that Mr Knaggs had been seeking to impose upon her an obligation that she disclose personal matters which had nothing to do with him and that he would not have behaved in that way had she been a man. In fact, the relationship had a great deal to do with the respondent and he would have behaved in the same way irrespective of gender."

7. It is worth mentioning that at several points in the narrative the applicant's evidence was disbelieved after being carefully weighed as to its likelihood; it was either disbelieved or the evidence of the other side was preferred.
8. So far as concerns the expanded Notice of Appeal, it is said that the Employment Tribunal misdirected itself on the law. As to that it says this:

"In this respect, the Tribunal who have listened to and directed themselves as to the law Further by ignoring crucial aspects of the evidence and failing to form an overall picture by looking at the evidence as one coherent whole, but rather looking at it in a bit by bit fashion, they have failed to appreciate the significance of the evidence put together as a self supporting whole. By conducting themselves in this matter they have reached a decision which is perverse."

9. We are bound to say we see no hint of that in the extended reasons. The evaluation of evidence is, of course, the special province of the Employment Tribunal. It is little help to an appellant in general terms to assert, as Mrs Scaife does, "perversity", unless she is able to point to examples so as to show that no reasonable Tribunal properly instructing itself on the evidence which it heard, could have conducted itself or concluded as this one did. But that, in our view she never manages to do. There is, though, one specific complaint which should be dealt with because Mrs Scaife does complain that the Tribunal was wrong to distinguish O' Neill v Governors of St Thomas Moore RCVA Upper School and Bedfordshire County Council [1996] IRLR 372. The Tribunal expressly referred to it and what they say on it is this:

"Entirely properly, the applicant drew our attention to the case of O' Neill which we considered with care….. In our judgment this case was different from that of Mrs O' Neill, in which the Tribunal had erred by attempting to create a distinction between pregnancy per se, and pregnancy in the circumstances in the case. As we understood it, the fact was that Mrs O'Neill resigned because of action taken against her by reason of the fact that she was pregnant. In this case, that action taken against the applicant was by reason of her relationship with a client, false denials and the effect of all that on the reputation of the respondent, the pregnancy merely established the position."

Looking at O'Neill [1996] IRLR 372, the headnote says:

"The critical question is whether, on an objective consideration of all the surrounding circumstances, the dismissal or other treatment complained of is on the ground of pregnancy, or some other ground. This must be determined by an objective test of causal connection. The event or factor alleged to be causative of the matter complained of need not be the only, or even the main cause of the result complained of. It is enough if it is an effective cause."

At paragraph 40 of O'Neill the decision says:

40 (ii). "The question of causation has to be answered in the context of a decision to attribute liability for the acts complained of. It is not simply a matter of factual, scientific or historical explanation of a sequence of events, let alone a matter for philosophical speculation. The basic question is: what, out of the whole complex of facts before the tribunal, is the 'effective and predominant cause' or the 'real and efficient cause of the act complained of? As a matter of common sense not all the factors present in a situation are equally to be treated as a cause of the crucial event for the purpose of attributing legal liability for consequences."

In paragraph 55 the decision says:

55. "It is not possible, in our view, to say, on the facts found by the industrial tribunal, that the ground for the applicant's dismissal was anything other than her pregnancy."

And in paragraph 56:

56. "Our conclusions do not mean that every woman who is pregnant and who is dismissed or who suffers some other detriment has a valid claim against her employer for sex discrimination. If, on the evidence, the industrial tribunal conclude on the correct application of the law that the pregnancy of the woman is not a ground for the dismissal or other detriment, the treatment complained of will not be grounds of sex contrary to the 1975 Act. It would be on some other ground."

10. That is precisely the position which the Tribunal found in this case. Here the Tribunal held that save as evidence of her potentially unprofessional conduct and of her repeated lies the pregnancy was irrelevant. In paragraph 12 they say:

12. "It followed from this that the applicant had not been dismissed by reason of the fact that she was pregnant or for a reason connected with her pregnancy. This was a question of causation and that casual link was absent."

We recollect the examples that the Tribunal gave itself as to what the position would have been if Mrs Scaife had not been pregnant but instead had announced that she wished to go to the home of her lover, and what the position would have been had she been a man in a corresponding situation. We are able to detect no error of law in the Tribunal's approach to the case of O' Neill.

11. In a paper, which is dated 14 June - a skeleton argument - Mrs Scaife raises a further number of points: She asserts, for example, that she has an absolute human right to form a relationship with whomever she chooses. That no doubt is correct but in the context of her being a solicitor employed by a firm of solicitors she can expect to be criticised and to have her employment jeopardised if she embarks upon a relationship with a married man when that married man is her client, as a client of the firm as to his matrimonial position. In such circumstances if she is employed as a solicitor, she can expect, as a man would be in a corresponding position, to be at risk of being dismissed fairly. She asserts, rightly, that there are a number of authorities that insist that in sex discrimination cases a proper approach is not to look at each item, item by item, but instead to look at the question of sex discrimination in the whole of the surrounding circumstances and as one continuous whole. But that is not a point that assists her because here no incident of sex discrimination was found; it is not a case where the Tribunal limited itself to an incident-by-incident approach, rather than looking at the whole matter but that it was able to find no discrimination at all. In that skeleton of 14 June she says that the Tribunal should not have allowed the hearing to deteriorate into an examination of a whole series of documents, rather than its concentrating on the main issues of the case. The Tribunal heard oral evidence of some length, as we have mentioned, on a number of points her evidence was either disbelieved or not preferred. There is no hint of the Tribunal concentrating on documents and indeed, on a number of the major findings, documents would have had no input at all.
12. Mrs Scaife complains also that the Tribunal seriously misinterpreted the Solicitors Rules of Professional Misconduct; they seem to believed, she says, that it is a matter of serious professional misconduct for a female solicitor to fall in love with a client, for whom she is acting and to take it that that ultimately meant she is acting in conflict of interest. That is neither what the Tribunal held nor a fair extension of what they held. The Tribunal in effect held that where a solicitor in a firm of solicitors is having an affair with a married client and at the same time, is acting as a solicitor under the aegis of that firm for that married client against the spouse of that married client and where, moreover, the solicitor has lied in denying that was the case and has also taken steps to conceal it and to depart from ordinary office practice in relation to it, then that solicitor runs a grave risk that he or she will be dismissed without the dismissal being unfair. We cannot say that that displays an error of law. We do not need to go into further details into some of the matters sought to be raised in the further document of 14 June; suffice it to say that we have now dealt with all the issues raised in the Notice of Appeal and in the other papers which attempt to raise questions of law, and we must emphasis that it is only questions of law with which we can deal. We are limiting ourselves to the question of whether we have been able to discern any error of law; we say that we have found none and accordingly we must dismiss the appeal, even at this preliminary stage.