United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR CARR (Company Secretary)


 


THE HONOURABLE MR JUSTICE BURTON

1. This is a Preliminary Hearing of an appeal from the decision of the Employment Tribunal at London Central, heard on 2, 3, and 13 July 2001. We have given permission for this appeal to proceed.
2. There appears on the face of it to be a considerable amount of strength in the attack which the Appellant makes on the decision. The following matters appear to us to need to be taken into account on the consideration of the appeal: -

(1) Is the finding of the Tribunal sufficient and/or justifiable that the fact that the Respondent and her husband were escorted from a club in which she did not work, and at which it might reasonably be said that she was a trespasser in the circumstances, amounted to dismissal from her employment?

(2) Is it, in the circumstances, a proper and/or justifiable conclusion, to assert in paragraph 25 that she was escorted from the premises because of the conduct of her husband and herself, which appears to be factually correct, and yet to do that on the basis of a double assertion –

(i) that the escorting from the premises amounted to a dismissal

(ii) that the dismissal so effected was consequently because of conduct

rather than the simple factual explanation, that she was being escorted from premises to which she had no entitlement to remain because she and her husband were behaving in the way described by the Respondent's witnesses?

(3) It appears to have been the case that the Tribunal not only did not accept the evidence of the Applicant in relation to her alternative claim for sexual harassment but must have thereby accepted the evidence of the considerable number of witnesses who were called for the Respondent, including the man who is supposed to have sexually harassed her; and there appears to be no consideration in those circumstances by the Tribunal as to the basis upon which, while the Appellant's evidence was accepted and the Respondent's evidence rejected on the issue of sexual harassment, the reverse position was to be the case on unfair dismissal.

(4) The case for the Respondent appears to have been set out in detail in her witness statement upon the basis of an assertion by her (though it is unclear whether she pursued that assertion in the witness box or not) that her dismissal occurred not by virtue of the implication resulting from her ejection from the club, but by virtue of Mr Wahid expressly saying that she was dismissed. There is no mention of that in the Tribunal's decision. Either such evidence, albeit adumbrated in detail in the witness statement, was not given, or it was given and was rejected; but in either event, one would have expected the Tribunal to deal with that aspect of the case, which appears to have been the way she was putting her claim, at least prior to the Tribunal hearing, and whilst rejection or abandonment must surely have been of some significance.

(5) There is an express piece of evidence set out in the answer (the IT3) by the Appellant, in paragraph 8 (vii) (d), relating to words which a witness, who was called by the Appellant, recalled being said by the Respondent's husband after she was ejected from the club, which might be said to be inconsistent with the case of the Respondent, if accepted, and yet there is no finding by the Tribunal in relation to whether that evidence called by the Appellant was to be believed or not.

3. For all those reasons, and the reasons set out in the grounds of appeal, we conclude that this appeal is strongly arguable and should be permitted to proceed.