United Kingdom Employment Appeal Tribunal

APPEARANCES

 

FOR PEOPLES (LIVERPOOL) LIMITED	MR C BAYLISS (of Counsel) Instructed By: Messrs Reeves & Co Solicitors 27b The Mansions 252 Old Brompton Road London SW5 9HW
FOR MS S S MADDOCK	MR S GORTON (Of Counsel) Instructed By: Messrs Forshaws Solicitors 16 Walton Road Stockton Heath Warrington WA4 6NL


 


MR RECORDER LUBA QC:

Introduction

1. Over four days, Monday 23^rd April 2001 to Thursday 26^th April 2001, the Employment Tribunal at Liverpool (Chairman Mr E Lloyd Parry) sat to consider the application made to them by Sheila Susan Maddock in respect of her previous employment by Peoples (Liverpool) Limited.
2. By a decision promulgated on 14^th August 2001, the Tribunal unanimously decided "that the Applicant was fairly dismissed; that she was discriminated against on the ground of her sex; that she was not discriminated against by reason of a disability". Although part of that finding was in favour of Ms Maddock, the Applicant, there has in fact not yet been a "remedy" hearing.
3. The Employment Tribunal, having reserved its decision, gave its reasons in extended form.
4. The former employers, Peoples (Liverpool) Limited, by Notice of Appeal dated 6th September 2001 appeal to this Tribunal. That is EAT Appeal No. 1084/01. The Notice of Appeal attacks that part of the decision of the Employment Tribunal by which it extended time for the admission of Ms Maddock's claim of sex discrimination. In respect of that appeal there is a Respondent's Answer from Ms Maddock (dated 28^th May 2002) seeking to uphold the Tribunal's decision to extend time.
5. For her part, Ms Maddock, by Notice of Appeal dated 25^th September 2001 also brings an appeal to this Tribunal. That is our Appeal No. EAT/1161/01. In essence, that Notice of Appeal contends that in its decision the Employment Tribunal failed to deal with important issues of fact canvassed before it in support of her contentions that she was unfairly constructively dismissed, that she suffered sex discrimination (above and beyond the matters found in her favour by the Employment Tribunal) and that she was subject to unlawful discrimination on account of disability.

The summary facts

6. Ms Sheila Susan Maddock had, for approximately nine years beginning in February 1990, worked for the company "Blake's". That company was in the business of selling motorcars. On 30^th April 1999, Peoples (Liverpool) Limited took over that business. Ms Maddock became their employee. She had been a business manager with Blake's and she continued in the same post on the same terms and conditions with the new owners.
7. Sadly, in circumstances to which we shall have to return in some detail, relations between Ms Maddock and the new business owners (and their managers) were not happy. It was Ms Maddock's case before the Employment Tribunal that the work system at her place of employment was soon "in chaos" and that she began working "longer and longer hours". She further complained in her application to the Employment Tribunal (IT 1) that she "began to suffer from anxiety and stress and found it difficult to concentrate" (paragraph 6). At the beginning of June 1999 there was an occasion on which cash went missing from the safe at the place of work. Ms Maddock was one of the key-holders and fell under suspicion. The police were involved.
8. Thereafter it seems that difficulties continued. There were a number of occasions upon which Ms Maddock was asked by her employers to consider different terms and conditions of employment and different working arrangements.
9. By 16^th August 1999, Ms Maddock had been signed-off by her GP as unfit for work with "general debility and depression". She was on medication.
10. She did not return to work until 20^th September 1999. Upon her return she discovered that her company car had been given to a sales person (that is, a person more junior than herself) and she found that her work had not been covered in her absence and that, therefore, there was a backlog and again "chaos".
11. There were then further meetings between the Applicant and those responsible for her immediate supervision and management and further difficulties emerged. Eventually, by December 1999, the Applicant had received a written warning. She appealed against that.
12. The last day on which she attended for work with her employers was 17^th December 1999. Thereafter she was, or claimed to be, too ill to work by reason of the debilitating stress and anxiety which she alleged had been caused to her by her employers.
13. At the beginning of January 2000, there had been scheduled a hearing of her appeal against the written warning. However, at the last moment she felt unable to attend that hearing and it was cancelled. Thereafter, she remained on extended absence until in July 2000 she resigned.
14. Her letter of resignation crossed, as it happened, with a notice of dismissal issued by the employers.

The Proceedings before the Tribunal

15. By a complaint brought to the Employment Tribunal dated 17^th August 2000 (that is some four weeks after the termination of her employment), Ms Maddock complained of "Disability Discrimination, Sex Discrimination, Redundancy, Unfair Dismissal, Breach of Contract and Section 88 Employment Rights Act 1996". That application to the Employment Tribunal was accompanied by a lengthy narrative of some 57 closely typed paragraphs.
16. By a Notice of Appearance dated 27^th September 2000, her employers responded with an equally detailed narrative occupying again some 57 closely typed paragraphs.
17. As we have already indicated, the matter was heard by the Liverpool Employment Tribunal over a period of four days. The evidence of Ms Maddock was given in chief in the form of her reading her Witness Statement. She was cross-examined. The witnesses for the Respondent were called and examined. From the page references alone, we can understand that the Tribunal had a voluminous bundle of documentation to consider in resolving the complaints that Ms Maddock had brought to them.

The Tribunal's Decision

18. By their decision, handed down on 14^th August 2001, the Tribunal addressed themselves first to their findings of fact. At paragraph 3 of the extended reasons there are some 17 sub-paragraphs under the heading "Findings of Fact".
19. At paragraph 4 of their decision, the Tribunal then turned to consider the question of whether the Applicant was dismissed. They record that the legal representatives of the two parties were agreed that the employment had terminated by resignation. The first issue, therefore, was whether the circumstances of the resignation amounted to constructive dismissal. The Tribunal found that they did not. In three sub-paragraphs of paragraph 4 they give their reasons.
20. They then, at paragraph 5, turn to consider the complaint of sex discrimination. They record in that paragraph their decision that it was just and equitable to enlarge time in order to entertain the Applicant's complaint of sex discrimination.
21. At paragraph 6, they consider whether the Respondents were guilty of discrimination on the grounds of sex against the Applicant. They decided that the Respondents had been guilty of sex discrimination and in four sub-paragraphs they indicate their reasoning. Finally, in paragraph 7 of their decision, they turn to the question of whether there had been disability discrimination. They decided, for the reasons that they then gave, in four short sub-paragraphs, that there had not been unlawful discrimination on the grounds of disability.

The procedural steps in this appeal

22. The two appeals (and the cross-appeal) came before this Tribunal (with a different constitution and presided over by Mr Commissioner Howell QC) on 21^st March 2002. On that occasion there was listed a preliminary hearing of both appeals and both parties were legally represented. At the conclusion of that hearing the learned Tribunal gave a judgment which was transcribed and made available to the parties. It also handed down an Order dated 21^st March 2002. By that Order it directed that the appeals proceed to a full hearing and that the appeals be consolidated. It gave the usual further directions appropriate for this matter to come on for full hearing.
23. Two of the directions are of particular importance. Before considering them further it is necessary to say something on the question of "documentation". The Employment Appeal Tribunal on 21^st March 2002 in terms expressed the view that there were three crucial primary documents which would need to be considered in determining whether there was merit in the appeal and cross-appeal. First, there was the Applicant's Witness Statement. Then there were a series of Tables in which counsel for Ms Maddock had set out, for the assistance of the Employment Tribunal, exactly how the long and detailed narrative of complaints that she had made was to be reduced to manageable proportions. Third, there was a particularly crucial document - the letter of resignation completed by Ms Maddock in July 1999. None of these documents were available at the preliminary hearing.
24. In those circumstances, the Employment Appeal Tribunal on 21^st March 2002 indicated that, when this appeal came on to be heard, this Tribunal should have the advantage of that documentation. Thereafter, very little action appears to have been taken in response to that direction. Primary responsibility for acting on the terms of this Tribunal's order lay with Ms Maddock as the Appellant in what the Tribunal had, on 21^st March 2002, designated as the "main appeal". For reasons which were insufficiently explained in submissions to us, no steps were taken promptly, or punctually, to bring together the three essential documents that this Tribunal had identified.
25. On 15^th January 2003, counsel for the Appellant (Mr Gorton) lodged with the Employment Appeal Tribunal office a paginated bundle of some 71 pages, which bundle included both the Witness Statement of Ms Maddock and two of the three Tables of complaints which he had previously deployed before the Employment Tribunal. The paginated bundle did not include a copy of the letter of resignation, nor did it include the third of the Tables of complaints, i.e. that dealing with sex discrimination. Further, it appears that the incomplete bundle that had been prepared was not made available to counsel representing the company until the late afternoon of the day before the hearing of the appeal (i.e. the late afternoon of 23^rd January 2003). We must, at this juncture, express our concern that those instructed for Ms Maddock had dealt so tardily with the indications given in the judgment of this Tribunal in March 2002. The position of the Respondent's representatives, however, is little better. They have had in their possession - since no later than the last day of hearing in April 2001 - all three of the requisite documents (i.e. the Appellant's Statement, a copy of her letter of resignation, and the Tables of complaints). It does not appear to have occurred to them, notwithstanding the clear terms of the judgment handed down in March 2002, that they ought to ensure that their counsel was supplied with those three documents in his preparation for this appeal.
26. As though these matters were not of themselves sufficient to attract criticism, it is necessary next to refer to the two crucial directions made by the Employment Appeal Tribunal in March 2002. First, the Tribunal ordered that "Skeleton Arguments do be exchanged between the parties and lodged with the Employment Appeal Tribunal not less than 14 days before the date of the full hearing". The date subsequently listed for the full hearing was 24^th January 2003.
27. The Skeleton Argument for the company was lodged with this Tribunal on 3^rd December 2002. That complied with the Order in relation to lodgement but did not comply with the Order in relation to exchange.
28. The Skeleton Argument for Ms Maddock was not received by this Tribunal until 16^th January 2003. Worse still, it does not appear to have been exchanged until, as we have indicated, the day before the hearing.
29. It has been emphasised on more than one occasion that case management of appeals to the Employment Appeal Tribunal can only sensibly be handled if the representatives of the parties, including their advocates, comply with the directions made by the Tribunal. In this case, there was, at least on the part of Ms Maddock's representatives, a failure to comply with these directions. When pressed for an explanation, Mr Gorton for Ms Maddock, sought to draw our attention to the fact that there had been a lack of co-operation between or amongst the solicitors instructed for the parties. We were disappointed to hear that. In any event the stark fact is, co-operation or not, exchanging Skeleton Arguments as directed by the Tribunal is simply a matter of putting documents in envelopes and sending them. We have received no adequate explanation as to why the parties did not exchange Skeleton Arguments in accordance with the direction earlier made.
30. Not surprisingly, the first procedural application we had to deal with at the commencement of this hearing on 24^th January 2003, was an application by Mr Baylis, counsel for the Respondent company, for a postponement or adjournment of the hearing. He complained (with some justification) that the Skeleton Argument had only been served on him the day before the hearing together with the paginated bundle running to some 71 pages, and that he had, only on the morning of the hearing, been furnished with the third of the missing Tables of complaints.
31. After hearing submissions from the parties, we gave a short judgment refusing the application for an adjournment. We were only content to proceed once we had satisfied ourselves that we could do so without real prejudice to the company. That was achieved by the making of a direction that Mr Gorton, for Ms Maddock, be prohibited from relying on (or referring to) any of the three Tables that he had previously prepared of the various complaints that Ms Maddock had made. We observe again, that none of this would have been necessary had proper attention been given to the preparation of this appeal and compliance with this Tribunal's directions.
32. The second of the important directions given by the Employment Appeal Tribunal again related to documentation. At paragraph 23 of its judgment on 21^st March 2002, this Tribunal said "the Chairman should be supplied with a copy of this judgment and the Notice of Appeal in Ms Maddock's appeal and invited to give in writing any comment he wishes to make on the way in which the issues were placed before the Tribunal at the hearing for decision, and the suggestion that material issues on which the Tribunal was asked to give a determination were not addressed". Additionally, the Chairman "should be asked" to provide the notes of any oral evidence of Ms Maddock given in relation to the reasons for her resignation, and further "should be asked" to provide any notes, or relevant material from the Tribunal's file, dealing with the reasons for granting an extension of time for the admission of the sex discrimination complaint. The terms of this part of the judgment were not translated as accurately as they should have been into the Order for Directions dated 21^st March 2002.
33. In the event, it took until October 2002 for the Employment Appeal Tribunal office to receive the Chairman's notes of the evidence that had been given by Ms Maddock. Nothing thereafter appears to have been done about the other parts of the direction given by the Employment Appeal Tribunal until enquiries were made by one of our members in the days immediately leading up to this hearing. As a result of that activity the Employment Appeal Tribunal office secured from the Chairman a letter dated 23^rd January 2002 which had necessarily been prepared at very short notice. We are grateful for the assistance that it provides but the circumstances of its being secured so late suggest that, again, little thought was given to the preparations for this hearing by the parties involved.
34. We have dealt with these matters at some length because it is the experience of all of us, sitting in differently constituted divisions of this Employment Appeal Tribunal, that this is far from an isolated occasion upon which the parties have not properly addressed the necessary arrangements to prepare for the hearing of an appeal. We do hope that by dealing with this in our judgment at such length we have set down a marker for the representatives of parties in other appeals which may come before us.

The "main" Appeal

35. Although not first in time, the "main" Appeal before us is the appeal made by Ms Maddock relating to the Tribunal's handling of her complaints of constructive dismissal, sex discrimination and disability discrimination. The grounds of appeal are fully set out in a Notice of Appeal settled by counsel and are supplemented in his Skeleton Argument. We have had the benefit of oral submissions in support of them.
36. In essence, the appeal is a "reasons" challenge to the Tribunal's decision. The thrust of the complaint made, in the Notice of Appeal as augmented in the Skeleton Argument, is that the Tribunal failed to deal with material issues and/or, if and to the extent that it did deal with some material issues, did not properly make findings of fact and/or give adequate reasons for its decision.
37. Mr Baylis for the Respondent company has characterised the appeal by Ms Maddock as a "perversity appeal" or a "disguised perversity appeal". With due respect to his submissions, we consider that to be a misrepresentation of Ms Maddock's appeal. Mr Baylis urged upon us the strict approach to perversity appeals taken by this Tribunal in Stewart v Cleveland Guest (Engineering) Limited [1994] IRLR 440 (Mr Justice Mummery) and the more recent statement of principle in the decision of the Court of Appeal in Yeboah v Crofton [2002] EWCA Civ 794. The members of this Tribunal are, with respect, familiar with those propositions and principles and would apply them faithfully - in accordance with the authorities - were this to be either a perversity appeal on its face or a "disguised" perversity appeal. We reject the contention that it falls into either category. In truth, the question for us is whether or not, on relevant material issues: (1) the Employment Tribunal failed to address itself to those issues at all, or (2) failed to sufficiently explain its findings and conclusions on those issues.
38. In the course of his oral submissions Mr Baylis accepted that either of the above failings by an Employment Tribunal would amount to an error of law. In relation to the second limb, sufficiency of reasoning and findings, he indicated that his submission was that the matter was one of degree. We agree. It is for us, therefore, to identify on Ms Maddock's appeal whether (1) there are material issues which the Employment Tribunal neglected to address and, further, (2) in relation to other material issues, whether the Tribunal's findings of fact and reasons were sufficient so that the Appellant might know why she had lost on those issues.
39. Against that background we turn to consider the main appeal. As we have indicated at paragraphs 6-13 above, Ms Maddock's case in summary form was that her employers had so misconducted themselves in the period between April 1999 and her resignation in July 2000 as to amount to a fundamental repudiation of her contract of employment. Further, she contended that a good proportion of the employer's misconduct was by way of acts of sex discrimination. She is entitled as a matter of law to deploy those allegations (of sex discrimination) in support of her claim of constructive unfair dismissal as well as dealing with them separately, as she has done. Separately, but additionally, she complains of sex discrimination reciting the same matters. Finally, she contends that by reason of her employer's conduct, she was driven into such poor health as to be disabled from working. She cannot deploy matters related to her treatment as a disabled person in support of her claim for constructive unfair dismissal but she can and does make a freestanding complaint of unlawful discrimination on grounds of disability and, in particular, draws attention to the employer's alleged failure to make reasonable adjustments to enable her to continue in her employment. [The contention that she had been dismissed by reason of disability was not pursued before us.]
40. We turn first then to those grounds of appeal which address the Employment Tribunal's conclusion that there had been no unfair (constructive) dismissal. The starting point and thrust of the contentions in the ground of appeal in this respect (paragraphs 2 and 3 of the Notice of Appeal) is that the Tribunal failed to address, or take into account, material aspects of Ms Maddock's case. We shall deal with each of the contentions in the order in which they appear in the Notice of Appeal. Before doing so, it is right that we record in the judgment the terms of the letter of resignation dated 17^th July 2000. That reads:

"Dear Sirs,

As you know I have been away from work for a long time due to a severe depression and anxiety state. It is only now that I am able to function and having reached that stage have been able to consider my future. In doing so I realise that I could not contemplate a return to work for your company.

In my time since you took over Blakes I have been subjected to sexist remarks and in effect a demotion. I was then subject to what can only be described as unjust treatment in terms of investigation and the threat of suspension followed by further threats of disciplinary action over targets of which I was only given a vague outline after informal discussion and despite my objections to them. I was then refused holiday at the end of the holiday year and told this was a form of punishment.

Since my absence on sick leave you have failed to pay any statutory sick pay, and on one occasion dismissed me (later withdrawn) and continually harassed me for documents which you had already been given. I am also disgusted that you have not formally dropped the charges against me even though you admitted I was not the prime suspect and another employee had offered to make recompense for the loss. That employee was the prime suspect and has since left for reason of "redundancy".

In view of the above I have no alternative but to resign my position and give one week's notice of the same."

41. Further particularisation of the reasons for the resignation, and what Ms Maddock contended to be the circumstances leading up to it, are given in her lengthy Witness Statement which was read to the Tribunal and, as we have indicated, in her lengthy narrative in the form IT 1.
42. As can be seen from the terms of the letter of resignation, the Witness Statement and the application to the Tribunal, Ms Maddock was contending that there had been a number, or series, of incidents leading from the takeover of the company up to the date of her resignation and producing in totality such circumstances that she felt forced to resign.
43. By paragraphs 2 and 3 of the Notice of Appeal, Ms Maddock draws attention to a number of aspects of that history which she says the Tribunal failed to address adequately or at all.

(1) The Impact of the Sex Discrimination

44. The first contention is that the history of sex discrimination played a material part in the reasons for her resignation (as to which see the second paragraph of her letter of resignation). She contends, correctly, that the Employment Tribunal had found in her favour on these sex discrimination points. Yet it is said the Employment Tribunal ignored that finding when considering whether the sexist remarks, and other behaviour related to sex discrimination, had contributed to her resignation. In oral argument Mr Gorton contended that the Employment Tribunal had simply not engaged with the experience of "sex discrimination" as playing part in the reason why she resigned.
45. That takes us immediately to paragraph 4(c) of the Tribunal's decision. At paragraph 4(c) the Employment Tribunal say as follows:

"The conduct the applicant complained of did not cause her to resign. She was not herself. She had grown disappointed and frustrated over work. She never appeared to have settled down to the new ownership of the company. She feared and resented the Respondent's efforts to change arrangements she was happy with. They were entitled to run the company their way; and they did nothing to impose on her arrangements she (sic) was entitled to insist on".

46. A number of issues arise. First, it is quite clearly consistent with the case Ms Maddock deployed before the Tribunal that she indeed was not herself, had become disappointed and frustrated and had not settled down under the new company's owners. That, she said, was precisely because they were guilty of discriminating against her on grounds of sex. That contention is simply not addressed in paragraph 4(c) of the Tribunal's decision. It is not dealt with elsewhere. In the first sentence of paragraph 4(c) it is quite clear that the Tribunal is finding that the "conduct" (by which we take them to mean the history of dealings including those alleged to constitute sex discrimination) did not cause Ms Maddock's to resign. But for what reason did they reach that conclusion? It could be that they were satisfied that the letter of resignation did not represent the true state of Ms Maddock's mind. They were entitled, having heard her, to find against her in relation to her credibility on the content of that letter. Alternatively, the sentence may mean that the matters complained of as to conduct had taken place so far in advance of her actual resignation that they were no longer operating to cause her to resign. A third possible reading of the sentence is that the conduct may have occurred but not have been the operative reason for the resignation because there was some other reason. If the operative reasons were considered by the Tribunal to be those covered by the remaining parts of paragraph 4(c), then those matters are consistent with Ms Maddock's account that these were the consequences of the way she was unfairly treated.
47. The thrust of the Appellant's case to the Tribunal was that the history of conduct by the employers, including conduct which amounted to sex discrimination, had been such as to drive her to a position of being forced to resign. The Tribunal does not, in our view, adequately explain in paragraph 4(c), or elsewhere in its judgment, whether or not it accepts the truth of that case and if not why not.

(2) The Suggestion of Dishonesty

48. Next, in the Notice of Appeal, the contention is made that the Tribunal failed to address, as one of the reasons for the resignation, the employer's failure to conclude the enquiries into the money missing from the safe. Likewise the failure to inform the employee that she had been exonerated rather than leave her under the shadow of suspicion. This is one of those matters on which the Tribunal did make a finding of fact. At paragraph 3(f) of their decision they expressly indicate that they accept the complaint of Ms Maddock in this regard. They say:

"It was decided to take the matter no further. The Respondents did not tell the Applicant. They should have."

49. In those circumstances, the Tribunal appears to have upheld Ms Maddock's contention that there was an extant and unresolved question-mark hanging over her employment which the employers could have, and ought to have, resolved. She was never told that the shadow of suspicion or suggestion of dishonesty had been removed. Further, as seen from the third paragraph of her letter of resignation, this was advanced as a reason contributing to her decision to resign. Nothing in the Tribunal's decision adequately explains why they then rejected the case of Ms Maddock in this regard that this potentially unfair conduct contributed to her resignation, if indeed they did reject it.

(3) The Non-Payment of Sick Pay

50. The Appellant had also raised the issue of failure to accept her absence as authorised, or to pay her statutory sick pay during a period of illness commencing in December 1999, as a matter contributing to her resignation. This point is raised at paragraph 50 of the IT 1 and at paragraph 90 of her Witness Statement. It is also dealt with in the letter of resignation.
51. The Employment Tribunal find, at paragraph 3(o), that "the Respondents correctly paid the Applicant's statutory sick pay for all her certificated absences". With respect to the Tribunal, and despite the care with which they considered this matter, the issue was not whether the Applicant eventually received the correct statutory sick pay (it is common ground that she did) but whether she only did so after an unreasonable delay. That was her case and that case does not appear to have been dealt with.

(4) Refusal of Holiday Leave

52. The Appellant further contends that the Tribunal does not deal with an occasion on which the employers refused her request to take annual leave (without reasonable grounds). That point is raised in the IT 1, at paragraph 43, in the Witness Statement of the Appellant, at paragraph 72, and in the letter of resignation (second paragraph) as a matter contributing to her resignation. She contends that the Tribunal did not deal adequately, or at all, with that proposition. Mr. Baylis, for the Respondent, was in some difficulty on this point. He conceded that the point was not dealt with by the Employment Tribunal. He further conceded, rightly in our view, that the failure to honour an employee's properly made request for annual leave, in circumstances where that leave would normally have been granted, could be a factor to be taken into account in determining whether there had been a constructive unfair dismissal. It seems to us that that concession, having been rightly made, can only lead to the conclusion that in this respect the Employment Tribunal's reasons are deficient in that they failed to address, at all, a material issue.

(5) Effective Demotion

53. The further contention is made that Ms Maddock raised before the Tribunal the complaint that she was subjected to, in effect, demotion by her employer. Two specific instances are relied upon. One is that in the period between the new owners taking-over and her eventual resignation, she was required to start reporting to a person of equal seniority to herself. That was notwithstanding that her ordinary superior was a different person, her line manager. Complaint that this constituted effective demotion is made in paragraph 36 of the form IT 1 and in the Witness Statement at paragraph 59. The further example of "demotion" relates to the substitution of the Appellant's company car with a second hand vehicle, no doubt an important matter for someone working in the motor sales business. She asserted that a person junior to her was given a new model. Her contention (see IT 1 paras 32-33 and Witness Statement paragraph 54) was that this conduct of the employer amounted to quasi- demotion. As she put it "It was normal for the car you were allocated to reflect your position in the organisation" (Statement para 54). The assertion that effective demotion had been a contributing factor in her resignation is made clear by the terms of the letter of resignation.
54. There is no explicit reference to either of these points in the Employment Tribunal's decision. Mr Baylis rightly draws our attention to the findings of fact at paragraph 3(a) and 3(b) of the Employment Tribunal's extended reasons. There the words used are that the Tribunal finds that the new employers "maintained her old terms and conditions". Mr Baylis invites us to read that as a finding that the Tribunal rejected the complaints in relation to (1) the reporting to a peer and (2) the replacement car. Allowing the Tribunal the greatest latitude to express its reasons succinctly and without extended detail, we cannot accept that the Tribunal adequately dealt with these specific points.

(6) The Withdrawn Dismissal

55. It is next submitted that the Tribunal failed adequately to deal with the contention by Ms Maddock that the employer's giving of notice of dismissal and then withdrawal of it was a contributory factor to her eventual resignation. True it is that this matter is raised in the notes of the Appellant's evidence to the Tribunal and in paragraph 3 of her letter of resignation. It is said by Mr Gorton, for Ms Maddock, that the point is not dealt with by the Tribunal at all.
56. We disagree. It does seem that the relevant notice was given only after the occasion upon which Ms Maddock last felt able to go to her place of work and was given in the context of what was found by the Employment Tribunal to be non-co-operation with the employer over the submission of medical certificates and other information relating to her absence. The findings of the Tribunal in relation to this matter are relatively clear at paragraphs 3(m), 3(p) and 3(q). We reject this ground of appeal.

(7) Conduct at Meetings

57. It is further submitted that, in the course of a number of meetings between Ms Maddock and more senior officers, she was subjected to insulting treatment and improper comments. The insulting treatment, it is said, consists of references to the possibility that her job could be done at a much lower salary by a much younger person. Further, that there would be "consequences to pay" if she raised difficulties with the company. She contended that the difficulties that were being raised with her by the employers were not being equally pursued, or pursued at all, with her immediate counterpart, a Mr Harrison.
58. We cannot be critical of the Employment Tribunal in their dealings with this aspect of the complaint of constructive dismissal. It seems to us that the gravamen of the complaint of Ms Maddock in relation to insulting remarks was the sexist nature of remarks and related to remarks other than those we have just mentioned. As we have recorded, the Employment Tribunal found in part in favour of Ms Maddock on the sex discrimination complaint and that related to findings that she had been subject to sexist and abusive remarks of a sexual nature. No separate ground of appeal is in our view sustained under this head.

(8) The Written Warning

59. At paragraph 2.8 of the Notice of Appeal, it is asserted that the employers breached the Disciplinary Code by giving a written warning in circumstances where the Code required, at most, a verbal warning. This is not to our mind one of the most significant features of the complaint of constructive dismissal. It is not discretely dealt with by the Tribunal but it would not on its own, in our view, constitute grounds for allowing the appeal.

Overview

60. However, for the reasons we have given above, it is quite plain to us that, sadly, Ms Maddock's complaint of constructive (unfair) dismissal, must in all its aspects be remitted to another differently constituted Employment Tribunal. Ms Maddock is, in our view, entitled to assert that she placed before the Tribunal in some detail complaints of specific aspects of her employer's conduct which contributed to her dismissal and which are not properly addressed by the Employment Tribunal. We have set these out at paragraphs 44-54 above.
61. We do not reach this finding lightly. We remind ourselves that we ought only to interfere with an Employment Tribunal's decision if the Tribunal has plainly failed to deal with material issues before it or has inadequately dealt, in its findings and reasons, with such issues. For the reasons we have given above it is plain that the Tribunal have both wholly failed to deal with some important aspects of the complaint of constructive dismissal, and have inadequately dealt with others. We also accept the submission of Mr Gorton that the Tribunal did not properly, having made findings in Ms Maddock's favour on the question of sex discrimination (see below), then revisit the question of constructive unfair dismissal to determine whether the sexist remarks, and other allegedly discriminatory conduct, of the employer caused or contributed to the termination of employment in this case.
62. We are doubly reticent to upset the conclusion of the Employment Tribunal in this case because, for reasons which were not adequately explored before us and on which we have insufficient information to comment, there has been an inordinately long delay in this matter coming on for hearing before us. When this case is remitted to another Employment Tribunal to consider, it is likely that that Tribunal will be concerned with events which took place as much as four years ago. That is not a desirable state of affairs. However, in our judgment, there is no alternative.

Sex discrimination

63. The thrust of this aspect of the complaint for Ms Maddock in her Notice of Appeal is that the Tribunal have, in their handling of her sex discrimination complaint, found in her favour in relation to the making of sexist remarks but have not gone on to consider those other aspects of the treatment of her by her employer which she alleged were motivated by a general "anti-women" ethos.
64. Her Notice of Appeal draws particular attention to the fact that she suffered "demotion"; that there was differential treatment between herself and male colleagues; that her Statutory Sick Pay was not promptly paid and her annual leave was denied. It is, and was, her contention that those were manifestations of sex discrimination on the part of the employers. In any discrimination case, as we remind ourselves, it is important for the tribunal to determine the primary facts. As we have indicated in dealing with the grounds of appeal relating to constructive dismissal, on many of these issues the Tribunal has not discharged that responsibility.
65. By way of an example, which we permitted him to develop in the course of oral submissions, Mr Gorton drew our attention to the way in which the Tribunal dealt with the allegation that Mr Brown (Ms Maddock's immediate line manager) had himself been involved in the making of sexist remarks. The case for Ms Maddock was that Mr Brown, the General Manager, and the senior employee at her workplace, had been guilty of discrimination on grounds of sex. At paragraph 43 of Form IT 1 it is alleged that in conversation with the Appellant he describes himself as "sick of dealing with moaning tarts". That is particularised at paragraph 72 of the Appellant's Witness Statement. At paragraph 35 of the Form IT 1 it is said that Mr Brown said to the Appellant, in the presence of others "... women could not be trusted...". This is repeated at paragraph 58 of the Witness Statement. On a subsequent occasion he is alleged to have asked the Appellant if it was "just the wrong time of the month" for her (see IT 1 paragraph 37).
66. What were the Tribunal's findings in relation to these undoubtedly sexist remarks alleged to have been made by the Appellant's direct line manager and a senior member of the employer's management structure? The Tribunal undoubtedly found that remarks of this nature were made. It found that Mr Brown had made the "time of the month" remark but that it was an "aberration" (paragraph 3(d)) and that the other remarks did not "emanate from the Respondent's senior management" (ibid). That conclusion cannot stand with the undisputed finding that the remarks alleged at paragraph 65 above were made and that it was Mr Brown, rather than anyone else, who made them. If, as seems probable, Mr Brown was the source of all the remarks at paragraph 65 above it is, at very least, difficult to sustain the Tribunal's conclusion that "Mr Brown had a real concern that women should not be subject to the maverick abuse witnessed by the Applicant" (paragraph 3(d) of the extended reasons).
67. In those circumstances, it seems to us that the ground of appeal in relation to sex discrimination is also made out. The Tribunal did not adequately address, or make findings in relation to, the material issues before them.

Disability Discrimination

68. The Grounds of Appeal also criticise the Employment Tribunal's handling of the complaint of disability discrimination. It is contended by Ms Maddock that the Tribunal, having found in her favour (at paragraph 3(j)) that the company was "more heavy handed than was necessary", and at paragraph 4(b) that the company "here and there might have been gentler with the Applicant than they were" failed to go on and explain why that treatment did not amount to discrimination on the grounds of disability as she had alleged.
69. In our view there is substance in those criticisms. But they are not truly criticisms of the Employment Tribunal itself. Sadly, and no doubt in an effort to assist the Tribunal, an imprecise agreement had been made between the parties as to the basis upon which the complaint of disability discrimination was to be tried. It seems that the parties had agreed that the Applicant was suffering a disabling condition of "depression". No doubt by reason of that agreement between the parties, the Tribunal did not go on to make full findings of fact as to the nature of the disability suffered by the Applicant, nor as to the date when it commenced. The date of commencement of the disabling condition was, of course, crucial in determining what the employers knew of it and what, if anything, they could have done in response to it, by way of reasonable adjustments to work or otherwise.
70. In those circumstances, the Tribunal failed to make the necessary findings of fact to deal properly with the Applicant's case. It is not possible, for example, to tell whether they were addressing a condition of disability (and the employer's response to it) which began before Ms Maddock was last able to attend the workplace or a condition which arose later. Our criticism of the Tribunal is, in those circumstances, somewhat muted. Nevertheless, it must in our view follow that when the matters of unfair dismissal and sex discrimination are reconsidered by a newly constituted Tribunal, as in our view they must be, that Tribunal will also have to address afresh the allegations in relation to disability discrimination.

The Employer's Appeal

71. By their Notice of Appeal the employers contend that the Tribunal failed to deal adequately with the question of whether Ms Maddock had brought her complaint of sex discrimination in time and, if not, whether an extension of time should be granted.
72. The Tribunal deal with this matter very shortly at paragraph 5 of their Extended Reasons.
73. What appears to have occurred is that during the course of the hearing, it seems after the conclusion of the Applicant's case, the point was taken that the Applicant's complaint in relation to sex discrimination was out of time and that no extension of time should be permitted. At that stage the Employment Tribunal heard argument as to whether it would be just and equitable to enlarge time for the presentation of the Applicant's complaint.
74. After hearing argument (and in the absence of any evidence being heard on the employer's side) the Tribunal apparently determined that "It was right to hear and determine the complaint".
75. On appeal before us Mr Baylis, for the employing company, has submitted that the Tribunal fails to give reasons for its decision and, most particularly, fails to explain its finding that "the Respondents were not prejudiced by an enlargement of time". Indeed, it is right to record that the Tribunal does not deal with any of the contentions that were advanced by the employer in submissions as to why it would not be right to grant an extension of time.
76. We are satisfied that there is substance in these complaints as to the Tribunal's handling of the matter. Although Employment Tribunals are rightly encouraged to deal with applications made before them by way of decisions which do not give elaborate, or overextended, reasons we are satisfied that the reasons given in this case for extending time in relation to a serious complaint of sex discrimination are not adequately expressed.
77. It therefore follows that we shall not only allow the employee's appeal, for the reasons we have given above, but we shall also allow the employer's appeal.

Conclusion

78. In all the circumstances, and for the reasons given above, we are satisfied that both of these appeals should be allowed. All of the matters originally raised before the Employment Tribunal in the Form IT 1 (with the exception of the claim for "redundancy") must be reconsidered by a new and freshly constituted Employment Tribunal. That Tribunal must also determine whether the complaints of sex discrimination were brought in time and/or whether an extension of time should be permitted.