United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS JANE MULCAHY (Of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS


 


MR RECORDER LANGSTAFF QC

1. This case comes before us on a Preliminary Hearing in an Appeal against a decision reached by the Employment Tribunal at Birmingham, the Extended Reasons for which were promulgated on 20 September 2000.
2. We propose to give permission to proceed to a full hearing on some but not all of the grounds which were advanced in the present Notice of Appeal. Because we are therefore dismissing some of those grounds and not giving leave for them to be argued further it is necessary to give short reasons why that should be.
3. I shall adopt the numbering in the original Notice of Appeal for ease of reference. It seems to us that there are arguable grounds of appeal in what was in the Notice of Appeal, paragraph 12 that is that the Tribunal having asked whether the Applicant was treated "less favourably" did not go on to ask "than whom"; Paragraph 20, that the Tribunal erred in law in finding the nickname "mad Mary" was in itself discriminatory; and paragraph 21, which might be described as allowing itself to indulge in impermissible speculation which might just arguably have influenced the decision that was reached.
4. Miss Mulcahy who has appeared today as she did below has accepted that some of the other grounds are not ones which she would necessarily wish to pursue as grounds on their own. Thus the matters of fact which are addressed by paragraphs 15 – 19 are matters which she would wish to refer to upon the hearing of the Appeal but which she does not seek to pursue as grounds as such. And we think it sensible that the material covered by those paragraphs is dealt with in that way so that to make it clear in refusing permission to proceed under the heading 'On the grounds of sex' in the Notice Appeal we are not suggesting that no reference may be made to the facts upon which those grounds were formulated in support of the grounds upon which we have given leave.
5. There was argument about the ground comprehended by paragraph 10. We think that here that Ms Mulcahy is putting it very high to say as she does that at paragraph 45 of the Employment Tribunal decision where reference is made to incidents of discrimination that the Tribunal were making positive findings that the incidents related from the evidence of Ms Carman which are set out at paragraphs 28 - 30 were in fact proved discriminatory conduct on the part of the employer. And we think that it may well be the case that the material there was going to establish within the mind of the Tribunal a sense of the culture which operated within the organisation, an appreciation of which would be important context against which to evaluate any claim of discrimination.
6. Moreover, we think that Ms Mulcahy may have to go some distance to persuade a Tribunal eventually that the Tribunal erred in taking the evidence of Ms Carman into account rather than it simply being a question of fact and of weight. But, despite those reservations we think that we shall permit her to pursue on the Appellant's behalf what is ground 10.
7. We do not find in paragraph 11 sufficient of a ground of appeal for that to be a separate ground and decline permission. It seems to us that there is a comparison which is drawn by the Employment Tribunal between the position of Mr Gardner set out in paragraph 31 which is referred to again when one comes to paragraph 49 and that if the point in respect of Mr Gardner has any force it would be in the context of whether or not the ground presently at paragraph 20 is or is not impermissible speculation by a Tribunal.
8. We are conscious of the need for the appeal to focus on the main points. It therefore, remains for us to deal with the way in which Ms Mulcahy here sought to reformulate what was originally paragraph 7(a) –(e). We have considered the way in which she has reformulated them, which has been presented to us as a separate Notice of Appeal with grounds set out as 8-10 and we are persuaded by her that those grounds are arguable. We shall say nothing about their force and weight.
9. Accordingly, it seems to us that the Notice of Appeal needs to be redrawn and we shall not therefore give leave to the document that we have in our hands containing the new paragraphs 8-10 as an amended Notice of Appeal because it would follow that when Ms Mulcahy considers our ruling she will no doubt wish to encapsulate the remaining grounds of appeal in a fresh document, but they will contain what is now the new 8-10 in place of the old paragraph 7 as well as what was originally paragraph 10, what was originally the "treated less favourably" section, paragraph 20 and 21 and paragraph 22 may as well remain.
10. The Appeal will, we think, take 3 hours. Skeletons addressing the focussed Notice of Appeal should be submitted 2 weeks in advance. Any cases which may be relevant, at least 7 days in advance and it will be listed in Category B.