United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS L DAVIES (Solicitor) Instructed by North Lambeth Law Centre 14 Bowden Street (Off Cleaver Street) London SE11 4DS


 


MR RECORDER UNDERHILL

1. The Appellant was employed by the Respondent part-time in a bookshop between 30 October and 24 December 1999. They are both Turkish and the bookshop serves the Turkish community. It is common ground that the employment ended on 24 December 1999. The Appellant says that she was dismissed. The Respondent says that she resigned. The Appellant brought proceedings claiming unfair dismissal and compensation for wrongful dismissal. She also alleged that during the period of her employment the Appellant harassed her in various ways which she says amounted to sexual discrimination.
2. Particulars of the incidents relied on are set out in the statement of case attached to her Originating Application. The claim was heard by an Employment Tribunal on two days in June 2000. The Appellant's claim for unfair dismissal was dismissed because she had not been employed for the statutory minimum period. There is and could be no appeal from this aspect of the decision. The remaining claims were also dismissed.
3. So far as the claim for wrongful dismissal was concerned, the Tribunal found as a fact in paragraph 7 of its Reasons that on the morning of 24 December the Respondent expressed his displeasure to the Applicant about her non-appearance the previous evening. She then indicated she was leaving, and he paid her the money that was due to her. In a further section of the Reasons headed 'Generally' the Tribunal states:

"We find that at all times the Applicant held the upper hand and that, when she was spoken to severely on the morning of 24 December, she reacted violently and left."

4. It was clear from the evidence which Mr Davies for the Appellant read to us from the witness statement of the Respondent that the finding that the Appellant said she was going to leave, and was paid off in consequence of that, reflected evidence given to precisely that effect by the Respondent. The Tribunal plainly accepted that evidence and we do not see how that finding can be attacked.
5. Mr Davies said that the finding in the extract which we have just recited, namely that the Appellant's resignation followed on an incident when she was severely spoken to that morning, was not consistent with the evidence of either party. He says that the incident about which both parties gave evidence occurred on the previous evening. We cannot resolve that question. But even if that was so it would be at worst a mistake by the Tribunal on a secondary factual matter which would not give rise to an error of law. We therefore see no grounds on which an appeal could succeed on the dismissal issue.
6. Turning to the discrimination issue, the Tribunal found in its conclusions that 'the Applicant has not proved her case on the balance of probabilities and consequently it is dismissed'. It made it clear that it was its view that the incidents complained of either did not occur or if they did could not reasonably be regarded as constituting sex discrimination. In paragraph 10 of its Reasons it states:

"Following her departure, the Applicant as an act of vengeance has chosen to put a particular construction on a number of otherwise inconsequential matters to bring a claim of sexual harassment."

We have no doubt that that was a conclusion which the Tribunal was entitled to reach, both on its assessment of the Appellant's personality, with which it dealt in some detail having heard her give evidence, and by reference to evidence of other conduct by her. As to the latter, it was undisputed that immediately after her employment terminated, that is to say on 24 December, the Appellant lost her temper and caused serious damage to the shop and to the Respondent's equipment. It was also undisputed that she had circulated a pamphlet among the Turkish community calling for a boycott of the Respondent's shop and mentioning sexual harassment.

7. The Appellant says that the Tribunal failed to refer specifically to a number of other matters which supported her version of events, and specifically to the allegation that there had been sexual harassment. But it is clear law that the decision of a tribunal cannot be challenged merely on the basis that it does not recite every piece of evidence on which one or other party relies. Mr Davies' principal point for the Appellant, however, is that:

"(a) the tribunal failed to make any or proper findings of fact in accordance with the King principles. In particular the Tribunal failed to make findings of fact in respect of the 14 alleged instances of sexual harassment and therefore its reasons are inadequate."

It is correct that the Reasons do not go through each of the allegations in turn. Though they are adequately summarised the Tribunal does not perform the exercise of looking at each one separately and making findings individually as to whether the episode occurred and if so whether or not it constituted discrimination. Its findings are compendious only, in the way that we have referred to; and it is, we think, fair to say that the Reasons are not particularly well structured or at every point particularly well expressed. But that by itself is not a ground of appeal provided it is sufficiently clear what the Tribunal's reasoning was and the basis on which the losing party has lost. There are certainly cases in which a tribunal's decision may be vitiated in law by a failure to consider separately a number of particular incidents on which one or other party relies. That is particularly so where the incidents are relied on to justify an inference of discrimination. This is of course not such a case (although the Tribunal at one point inaccurately refers to inference): each of the allegations, if they had been well-founded, would have been explicit acts of discriminatory conduct. In the end each case must turn on its own facts. We do not believe that in this case it was necessary in law for the Tribunal to consider each alleged incident in detail. The approach in fact adopted by the Tribunal in our view plainly allowed the Appellant adequately to understand why her claim has failed.

8. Finally, the Appellant makes through Mr Davis an allegation of bias: this is to be found at (vi) in the grounds of appeal. Most of the particulars under that heading simply recite aspects of the Tribunal's findings with which the Appellant disagrees, but there is one objective matter to do with the conduct of the hearing alleged, namely at (a):

"The tribunal did not take a proper note of the proceedings when the Respondent was being cross-examined, the chair took no note at all of what was being said in evidence."

And a witness statement from Mr Davies, who conducted the case of the tribunal on the Appellant's behalf, is attached.

9. In compliance with the practice direction, the observations of the Chairman on that allegation have been obtained and also of the advocate on the other side, a Mr Bliss. So far as the question of notes is concerned the Chairman says in terms:

"I have a full note and furthermore was able to refer to the notes of two experienced colleagues, one of whom took a note in shorthand."

We have read carefully Mr Davies' witness statement and we have explored with him in the course of his submissions how far the statement that no note of the cross-examination of the Respondent was taken can be supported. It is clear that there was one incident, confirmed by both the Chairman and Mr Bliss, in which Mr Davies drew attention to a particular answer, with a view to making sure that a note was made of it, on the basis that he did not believe the Chairman was intending to make a note. Apart from that, Mr Davies' allegation appears to be based on what we might call - and he himself called - the body language of the tribunal, that is to say the fact that they were seated in such a way that they could not conveniently or comfortably take a note; and it is on the basis of that that he believed that that they were in fact taking no notes.

10. We do not see how an allegation based in that way could prevail over the express statement of the Chairman that he had what he describes as a full note and indeed that notes were made by the lay members in addition. We have considered whether it would nevertheless be appropriate to call for the Chairman's notes, either his full notes or in any event the notes of the cross-examination of the Respondent, in order to check whether what he has said in his observations to the Tribunal is correct. But it seems to us that such a request, in accordance with the ordinary principles for calling for Chairman's notes, should only be made where a sufficient evidential basis has been established in the first place. For the reasons given we do not believe that that is so in this case. We have reminded ourselves of the recent guidance given by the President in the case of Facey v Midas [2000] IRLR 812, where the point was made that the Appeal Tribunal should adopt a step by step approach and that there are a number of enquiries that can be made where a question arises as to the conduct of a hearing. It is necessary at each stage to consider whether it is necessary and appropriate to move to the next stage of enquiry or whether a sufficiently informed decision can be arrived at on the balance of probabilities on the material available. We believe that that is the case here and that in those circumstances it is unnecessary and inappropriate to call for the Chairman's notes.
11. Those are our main reasons for dismissing this appeal. We should however deal with just deal with one or two other points relating to the grounds of appeal.
12. Mr Davies addressed us on, and clearly attached some importance to, a description which the Tribunal is said to have given of the Appellant as a 'political activist'. There is no such description in the Reasons; but he tells us, and we have no reason to doubt, that that phrase was used in the brief oral reasons which the Chairman gave at the conclusion of the hearing. We cannot see that the use of that term, which does not seem to us to be pejorative, gives rise to any ground of appeal. That is head (ii) of the grounds of appeal.
13. Head (iv), which relates to an advertisement placed by the Respondent in a Turkish newspaper seeking a female assistant, comes under the heading of matters which we refer to above, where the tribunal chose not to refer to a particular matter on which the Appellant relied. As we have said, we do not regard that as giving rise to an issue of law.
14. Ground (v) Mr Davies agreed was effectively another part of his ground (i). He abandoned grounds (vii) and (x) and agreed that grounds (viii) and (ix) were related purely to matters of fact and did not themselves give rise to grounds of appeal in law.
15. The appeal is accordingly dismissed.