United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant
For the Respondent


 


MR JUSTICE LINDSAY (PRESIDENT):-

1. We have before us, and they are listed together for some 4 days, a number of appeals of which three might be broadly described as "liability" and the rest, to a greater or lesser extent, "remedy".
2. They are listed over 4 days and it is now 2 o'clock on the first day and we have not substantially got to grips with anything yet, for reasons I need not go into, and, accordingly, when Ms Gill on behalf Margaret O'Donoghue in the matter O'Donoghue v Redcar & Cleveland Borough Council indicated that there was a point as to issue estoppel that required to be dealt with, having seen that issue raised in her skeleton and having formed a preliminary view about it, I there and then indicated that I thought the point was as close to hopeless as a point can become. However, we indicated that we would hear argument on it and we did and we now attempt to give a reasoned judgement on the point.
3. The issue cannot be understood without a glimpse of the history of the matter. On the 2^nd-6^th September 1996 at Middlesborough under the Chairmanship of Mr J C Sutcliffe there was a hearing in the matter O'Donoghue v Redcar & Cleveland Council. The issue or subject matter was whether Ms O'Donoghue had been discriminated against on the grounds of her sex, contrary to section 6(1) of the Sex Discrimination Act.
4. The particular forms of discrimination which were then alleged, taking it very broadly, were two; one consisted of her not being shortlisted for a particular job and interviewed and the second was concerned with her failure to achieve a particular job, the job of senior solicitor. The first of the two complaints failed but in respect of the second there was success. That hearing dealt only with liability. In the course of the extended reasons there are a number of key paragraphs beginning at paragraph 16. It would, perhaps, for present purposes be necessary to read only one, namely paragraph 18. What was there said was this:-

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

5. That reference to the Applicant's seniors in her department would seem to refer, although it does not in terms name them, to a Mr Frankland and a Mr Hayes. Neither of them was a party to the case and only one of them, Mr Frankland, was involved in any way in the decision which led to the finding of discrimination. That was that decision. It was a decision on two IT1's, the first of which made no reference to the failure to achieve the post of senior solicitor at all. The second IT1 said this:-

"On the 20^th March 1996 following interviews held at the authorities offices for an appointment to the post of senior solicitor, the interview panel offered the said post to a male applicant who was less well qualified and had less experience relevant to the post in question then I.

The interview panel would not include Mr Frankland or Mr Hayes, although it transpires that Mr Frankland was invited to comment, and did comment, to the interview panel. At all events, on the face of things, there is no allegation against Mr Frankland or Mr Hayes directly and they were not parties and they would therefore not have had the ordinary ability that a person has but party to respond to a particular individual complaint that exists where a person has become a party.

6. There was an appeal lodged by the Council against that decision at an early date, certainly by the end of December 1996, and one of the grounds of the appeal was that the finding of the Tribunal that:-

"The actions of both Applicant's seniors in her department and of the councillors on the interviewing panel were affected…by the Applicant's strong feminist views which she had freely expressed over a period of years was perverse; no reasonable Tribunal reasonably directing itself could have come to that conclusion in that…."

and then there are a number of particulars given, including that there was no evidence that supported such a view given to the Tribunal.

7. Later, Ms O'Donoghue issued an IT1 claiming victimisation. That led to a truly immense hearing and a very considerable and long judgement or decision by the industrial Tribunal at Middlesborough but under a different constitution; this time it was under the Chairmanship of Mr P G Rennie with different members who had not sat on the earlier matter.
8. The unanimous decision of the 2^nd body, that began to hear the matter on the 30^th and 31^st October and whose decision and extended reasons were sent to the parties on 10^th July 1998, was that Ms O'Donoghue had been unlawfully discriminated against by way of victimisation, and that she was unfairly dismissed. In the course of that very long reserved decision there are a number of observations which Ms Gill, for Ms O'Donoghue, has drawn to our attention. Thus in paragraph (g)(g)(g), page 107, one finds:-

"As with Mr Frankland's championship of Mr Cookson – which the Applicant erroneously attributed to Mr Franklin's refusal to have or to at least discomfort of a female deputy, the reality was that Mr Franklin's antipathy towards her was based not on her gender, but her personality, as did others, a significant number of whom were female, he found it very difficult to work with the Applicant and regarded her as a division influence with an adverse effect upon working relationships upon inside and outside the authority."

And later one finds in paragraph 11 at page 132:-

"We did not accept the allegations as discriminatory behaviour made by the Applicant in relation to aspects of her treatment by senior officers within her department."

At paragraph 17 on page 138:-

"However, the Respondent's sought to contend in the event of such a finding that the Applicant could not rely upon it because under section 4(2) of the Act, the allegations were "false and not made in good faith."

The reference to, in the event of such a finding, is the finding of Victimisation.

Continuing the citiation:-

We rejected the Respondent's submission in this regard as the Applicant pointed out the words of the section are conjunctive. We fully appreciated that the previous Tribunal did not deal with the complaint of victimisation, however, it was directly concerned with the matters which the Respondent now argued before us a mounted flasity. It had concluded that the relevant allegation was not false at all since it found that the Respondent had indeed lawfully discriminated against the Applicant on the ground of her sex, in the way it rejected her candidacy after interview. That was not, as it were, obiter dicta, it went to the heart of the Tribunal's findings. In our judgment it was not open to us to look afresh at that matter. It was governed by issue estoppel. On that basis section 4(2) of the Act could not avail the Respondent.

So that second Tribunal, dealing with the victimisation claim and unfair dismissal also held that the Tribunal could not look to see whether Ms O'Donoghue had made her allegations in bad faith because that had been already, in effect, decided by the earlier decision. Of course, it does not follow from that that any other issues had been decided at the earlier decision were barred by issue estoppel.

9. That is the background to the contention which is now raised before us which is as follows:-

"Issue Estoppel arises if there is an identity of issues in the two sets of proceedings. Munir & Jang Publications 1989 ICR 1. It is submitted the findings of the discrimination tribunal that the senior officers in the Appellant's department had been party to discrimination was an issue in those proceedings and should not have been revisited in subsequent proceedings. [Then there is a reference against Harbourship Laws and Green v Hampshire County Council]. "The same point [it says]"; "arises in respect of action taken to implement equal opportunities."

Doing the best we can we do not see this to be a case in which Issue Estoppel is of any relevance. The issues in the two distinctive hearings were the product of IT1's raising different issues. Sex discrimination, I will not say "pure and simple", but in its more direct form was the issue in the first. Victimisation was an issue in the second. In neither case were the two individuals now sought to be considered - Mr Frankland and Mr Hayes - parties, nor was it any necessary part of the first hearing that Mr Frankland and Mr Hayes had or had not themselves been discriminatory.

10. The language of paragraph 18 of the earlier decision is far from clear. This is one of the points that Mr Bloch raises in the appeal that exists as to that case. It is to be noted that by the time that the second decision was being heard the first decision (and that particular paragraph) was already the subject of an express appeal. It would have been difficult for the Industrial Tribunal to deal with by way of Issue Estoppel because one could then get to a position in which the second appeal Tribunal did not hear the point only to find on the basis that there was Estoppel as to it, only to find that the decision was then overturned, in which case there would then have had to be some form of reference back to them, the Industrial Tribunal. It seems to us entirely proper that the second Tribunal should have gone into the facts that were raised in the second hearing as fully as they did without reference to Issue Estoppel.
11. It is also the case that it is far from clear, reading paragraph 18, just what it was that was the cause of the effect upon Mr Frankland or also, perhaps, Mr Hayes. The holding of strong feminist views, which I think, in another part of the case, are referred to as extreme, is not itself an indication that Ms O'Donoghue was discriminatory or that to hold those views against her was herself discriminatory. There are feminist views and feminist views. Some it might be quite prudent to characterise as divisive or discriminatory in their more extreme forms. Others would have no such effect at all. What the strong feminist views were by which it is said in paragraph 18 the Applicant's seniors were affected is totally unclear at this moment. That being so, it is very hard to see how well founded the basis was for the finding of sex discrimination in the first proceedings, which in any event of course, was not a finding of sex discrimination on the part of the Applicant's seniors because they, as I have indicated, were not parties, but was discrimination by the Council. Of course, the seniors could have been in some way party to discrimination, but that has not been in terms alleged and quite how it had come out at the hearing is unclear.
12. Moreover, another substantial substantial point that weighs against Issue Estoppel is that if it is at a second hearing to be urged that there are areas of fact that have already been decided and which essentially should not be gone into by reason of Issue Estoppel it behoves the party seeking to raise Issue Estoppel to raise it in the clearest terms and to get a ruling on it. It is debatable how far it was raised at the 2^nd hearing. It was plainly raised in connection with the paragraph that I have already read, but whether it was raised as a general issue does not appear. Certainly, there was no concluded ruling on the point such as could have then led to an appeal on that issue alone. Doing the best we can, it seems to us that whilst Issue Estoppel was touched on, it was not touched on in such a way as could have barred the evidence that lead to the passages in the 2^nd judgment which have been drawn to our attention. So, all in all, we revert to our initial gut reaction, so to speak, having simply seen the argument raised in paragraph 10 of Ms Gill's skeleton argument that this is a hopeless application and accordingly we say that in the respect in which it is sought to be raised in that paragraph 10, Issue Estoppel is not material and did not bar the Council from taking points at the 2^nd hearing nor otherwise affect the conduct of the Appeal.