United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	DR JANA ODAR (the Appellant in Person)
For the Respondent	MR J ALGAZY (of Counsel) Instructed by: Messrs Fox Williams Solicitors 10 Dominion Street London EC2M 2EE


 


HIS HONOUR JUDGE PETER CLARK

1. By an Originating Application presented to the London (Central) Employment Tribunal on 21 September 2001, the Applicant, Dr Odar, brought complaints of (1) unfair dismissal, (2) sex discrimination, (3) breach of contract and (4) unlawful deduction from wages, against four respondents. They were (1) Knight Securities International Limited ("KSIL"), a UK company; (2) Mr Peter Rogers, Head of Trading, employed by KSIL; (3) Mr John Woodman, Chief Operating Officer of KSIL; and (4) Knight Securities LP ("KSLP"), a US corporation.
2. It was her primary case, drafted in detail by her then solicitors Eversheds, that her employment continued from 23 March 2000 until her dismissal effective on 19 September 2001 and was with the UK company KSIL based in London. Alternatively, she was employed by the US corporation KSLP.
3. By an equally detailed Notice of Appearance lodged on behalf of the first three Respondents the case was advanced, among others, that the Applicant was throughout employed by the US corporation KSLP, on assignment to work in the London offices of KSIL as an expatriate employee. It was contended that in the circumstances the Tribunal had no jurisdiction to entertain her complaints brought under the Employment Rights Act 1996 and for breach of contract, it being later accepted on behalf of the Respondents at a directions hearing held before a Chairman alone, Mr T Ryan, on 10 January 2002, that the Tribunal did have jurisdiction to entertain her complaint of sex discrimination.
4. At that directions hearing two preliminary issues were identified for determination. They were:

(1) Whether the first or fourth Respondent was the Applicant's employer;

(2) Whether the Tribunal had jurisdiction to hear the Applicant's claims, save for that of sex discrimination.

5. Both preliminary issues were finally listed for hearing before a full Tribunal chaired by Mr D J Latham, the Regional Chairman, starting on 25 September 2002. Although the hearing was spread over five days the volume of evidence, both oral and documentary, was such that at the end the Tribunal had only completed the evidence and argument relating to the first issue, that of which company was the Applicant's employer.
6. By a decision with Extended Reasons promulgated on 6 January 2003 the Tribunal accepted the Respondent's case that KSLP, the US corporation, was the Applicant's employer throughout her employment, which, they found, commenced on 14 February 2000.
7. Against that decision the Applicant, who represented herself before the Employment Tribunal, as she does today, brings this appeal.
8. Her grounds of appeal are organised under four heads. It is convenient to deal with them sequentially in this judgment.

(1) The Employment Tribunal misinterpreted the law

9. The issue before the Employment Tribunal was, in our view, essentially one of fact: who was the Applicant's employer?
10. Both the first and fourth Respondents were part of the Knight Group of Companies. The Applicant, a Slovenian citizen, had been working in the United States when she received there an offer of employment contained in a letter dated 8 February 2000 from Mr Kravis, the Vice-President Human Resources, on notepaper headed 'Knight Securities Inc' and bearing a New Jersey address.
11. From the outset it seems it was contemplated that she would work in London, with the title Senior Project Manager International. For the purposes of obtaining a UK work permit her employer was said to be the UK company KSIL.
12. The letter of appointment referred to a salary package expressed in US dollars. She had a relocation package to London, where she rented accommodation. Her salary was paid in sterling, equivalent to her remuneration expressed in dollars, at the exchange rate from time to time. Payment was made to her through KSIL's PAYE system; the Tribunal accepting the Respondent's evidence that the only reason she was not paid through the US payroll was because that system could not deal with the necessary deductions for UK National Insurance contributions.
13. The Tribunal made further relevant findings of fact. The US operation set up her housing allowance for living in London, but it was paid through the UK company. She was provided with dental cover in the United States and international medical cover. She did not receive particulars of terms and conditions of employment with KSIL, unlike 'local employees' of the UK company, as she was aware. She was regarded by the Knight Companies as an 'expat' employee, on assignment to work in London. She reported, both to London executives of KSIL and US executives of KSLP, particularly Mr Diego Baez.
14. When her employment was terminated the act of dismissal was performed by Mr Woodman of KSIL, who said in the letter of dismissal, dated 10 September 2001, notifying her on behalf of KSLP, that she had been selected for redundancy and that as an expatriate employee of KSLP she was treated under the programme for layoffs in the US. We understand from the Applicant that the expression 'layoff' in America is equivalent to our word 'redundancy', that is, a permanent rather than temporary cessation of employment due to a reduction in staff.
15. The Tribunal noted a number of other matters, set out in their findings of fact, which must be read as a whole because the Tribunal directed themselves that their task was to balance the various factors in arriving at a conclusion as to who was the Applicant's employer. Looking at the matter as a whole, they concluded, on the facts as found, that it was the US corporation KSLP, by whom she was initially recruited.
16. Before turning to the Applicant's submissions on this part of her appeal it is important to bear in mind the limit of the EAT's jurisdiction. We can only interfere with an Employment Tribunal decision where an error of law is made out. It is not for us to retry the facts.
17. The main thrust of this part of the Applicant's appeal is that the Tribunal failed properly to consider the applicable immigration and employment law requirements which, she submits, apply particularly to those she describes as 'foreigners like me'. We think that this line of argument is misconceived on appeal. The issue between the American law experts (below) was whether a US work permit was necessary for an employee hired by a US corporation to work abroad. Mr Hader's evidence was that it was not; the expert relied on by the Applicant, Ms Hanner, who did not attend the hearing, expressed the contrary opinion in a written report. The Tribunal accepted Mr Hader's evidence. That was, as Mr Algazy submits, a finding of fact.
18. The Applicant never did work for KSLP in America, hence there was no need to obtain a US work permit. Conversely, since she was to work in London the application for a UK work permit was made through the London company KSIL.
19. Further, although termination of her employment was effected by KSIL's Mr Woodman, it was said to be done on behalf of KSLP.
20. In short, we are satisfied, subject to the Applicant's further grounds of appeal, that the Tribunal permissibly considered and took into account the points now raised by Dr Odar in carrying out the necessary balancing exercise in order to decide which corporate respondent was her employer.

(2) Findings of fact unsupported by any evidence

21. It will be an error of law for an Employment Tribunal to make a material finding of fact unsupported by any evidence: see Piggott v Jackson [1992] ICR 85, 92D, per Lord Donaldson MR. However, the MR went on in that case to point out that it will normally be necessary for the Appeal Tribunal to see the Chairman's notes of evidence in order to determine whether or not there was evidence to support a particular finding. The Chairman's notes have not been sought and obtained in this case.
22. However, having considered with Dr Odar in argument the examples which she gives, it is plain that what she is saying in all but one instance is that although evidence was given by the Respondent's witnesses on each point, that evidence was incredible and ought to have been rejected by the Tribunal. That is not a proper ground for appeal. The exception is the Tribunal's finding (reasons paragraph 6h) that the Applicant was paid semi-monthly in accordance with her letter of appointment, as opposed to local employees in London who were paid monthly. In fact, as Mr Algazy accepts, she was paid monthly in the same way as KSIL employees.
23. Thus the question for us is whether that wrong finding of fact was of sufficient materiality to vitiate the Tribunal's decision. We do not think that it was. It was one of many factors considered by the Tribunal in carrying out the balancing exercise. It does not appear to us to have weighed significantly in the balance. Accordingly, we shall not allow the appeal on this single mistake of fact.

(3) Bias or the appearance of bias

24. Here, the Applicant raises six separate matters, the most significant of which, potentially, is the first.
25. The complaint is that the Chairman, Mr Latham, acted in a biased way by too closely associating with the Respondent's witness, Mr Hader.
26. In the event we heard oral evidence from both the Applicant and Mr Hader on this point. Our findings of fact are as follows. After Mr Hader had completed his evidence on the afternoon of 26 September 2002 the Tribunal took a short break. In the public area the Applicant saw the Chairman and Mr Hader walking along the corridor in conversation. As she put it, that gave her a weird feeling; more so later when she received the Tribunal's decision of 6 January 2003 to find that Mr Hader's evidence had been accepted in full in preference to that of Ms Hanner.
27. However, the question for us is whether seeing the Chairman and witness in conversation would, to an objective observer, give the appearance of bias. We accept, as a fact, that no conversation took place as to Mr Hader's evidence, as Mr Hader told us.
28. We accept the distinction drawn by Mr Algazy between a sighting of a witness emerging from the Chairman's private room and a conversation taking place in the public area. In our judgment the objective observer would conclude that the two were exchanging pleasantries (as was, we find, the fact) rather than discussing the case or the witness's evidence.
29. In these circumstances we shall not uphold the appeal on this ground, whilst making the observation that members of Tribunals obliged to venture into public areas during a hearing would be well advised to avoid any conversation with parties or witnesses before them, other than a formal nod of acknowledgment.
30. The remaining matters may be taken quite shortly. We are satisfied that the Tribunal dealt even-handedly with the witness statement of witnesses on both sides who did not attend to give evidence. They warned the parties that they would read the witness statements, but the question of what weight would be attached to such evidence in the absence of cross-examination, would be a matter for the Tribunal. As to the suggestion that Mr Algazy shouted at the Applicant during his cross-examination of her, but was unchecked by the Chairman, we are inclined to accept the account, not challenged by the Applicant in argument, of the lay member, Mrs Mansfield, whose comments generally we found both detailed and illuminating. We accept that on one occasion Mr Algazy did display some exasperation by raising his voice during cross-examination, but was then admonished by the Chairman.
31. The next point concerns postponements prior to the substantive hearing commencing on 25 September 2002. Those, whilst frustrating for both parties, do not, it seems to us, bear on the conduct of the relevant hearings.
32. Next, the Applicant relies on her contention that findings of fact adverse to her were made unsupported by evidence, itself showing bias on the part of the Tribunal. We have earlier indicated that we rejected all but one of those allegations and that which is accepted was not sufficiently material to the final outcome to found this head of bias.
33. Finally, Dr Odar complains that her assistant and note-taker, Mr May, was excluded from a hearing before the Tribunal on 6 January 2003. If so, on the basis that only the lawyers for the Respondent and the Applicant were called into the Tribunal room on one occasion that day, we very much doubt whether it was a deliberate attempt on the part of the Tribunal to disadvantage the Applicant and was not, apparently, raised by her at the time. In any event, this incident occurred after the Tribunal had completed their deliberations in this matter.

(4) Perversity

34. We reminded ourselves and Dr Odar of the observations of Mummery LJ on the perversity ground of appeal to be found in Yeboah v Crofton [2002] IRLR 634 at paragraphs 94 to 95.
35. The heart of this submission lies in four propositions which she advances as pointing inexorably to the conclusion that her employment was with the first Respondent English company. They are:

(1) She had a UK work permit only;

(2) She habitually worked in London at KSIL, providing her services wholly to KSIL and KSIL was the only firm that paid her for her services;

(3) KSIL was a UK-registered and UK-regulated firm;

(4) Her employment was terminated at KSIL by KSIL's Human Resources Director and Chief Operating Officer, with KSIL notice time, as opposed to no notice which was the position under her original letter of appointment which talked about the employment being at will

36. Put in those broad terms, we see the potential force of that submission. However, it is precisely that danger of second-guessing the fact-finding Tribunal below to which the Court of Appeal adverted in Yeboah. Mr Algazy points out that each of the first two propositions was factually disputed below and not accepted by the Tribunal. The third proposition does not advance the matter and, as to the final point, the termination letter, although delivered by KSIL, was said to be written on behalf of KSLP.
37. In short, we find ourselves unable to say that this decision was legally perverse and, having considered each of the ways in which this appeal is put, we must reject it and the appeal is dismissed.