At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE WILKIE
DR B V FITZGERALD MBE LLD FRSA
MR D WELCH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
THE QUEEN ON THE APPLICATION OF JACQUELINE SMITH
APPEARANCES
For the Appellant | Miss J Shephard (of Counsel) Instructed by: London Borough of Newham Legal Services Newham Town Hall East Ham London E6 2RP |
For the Respondent | Miss C E Bone (The Respondent in Person) |
SUMMARY
Practice and Procedure – Chairman alone
Sex Discrimination – Direct / Victimisation
- Employment Tribunal Chairman not entitled to issue a certificate of correction to add a new finding to the decision.
- The Employment Tribunal was irrational in failing, in the light of its findings of fact on one issue, to find a prima facie case of unequal treatment on grounds of sex or victimisation in relation to that specific issue.
THE HONOURABLE MR JUSTICE WILKIE
"The facts found by the Tribunal show the Claimant was subjected to a course of conduct by the First and Fourth Respondents which amounted to sex discrimination by way of victimisation after she alleged, and the Tribunal has found she was, directly discriminated against on grounds of sex by the First and Third Respondents. By their conduct the Respondents breached the implied term of trust and confidence between the parties. The Respondent has sought to argue the Claimant has waived the breach or breaches of this implied term. It is hard to see when the Claimant has waived any breach. She pursued a grievance, she commenced proceedings, and when an attempt to resolve the proceedings broke down and no real effort was made to assist her to return to work she became ill again and resigned when she received the unreasonably delayed outcome of her Stage 3 grievance. The Tribunal finds the Claimant was dismissed."
The certificate of correction adds at the end of that paragraph the following words:
"and her dismissal was direct sex discrimination and victimisation by the first Respondent."
"The so called slip rule is one of the most widely known but misunderstood rules. The rule applies only to an accidental slip or omission in a judgment or order. Essentially it is there to do no more than correct typographical errors for example where the order says Claimant when it means Defendant, when it says 70 days instead of 7, where it says January 2001 instead of January 2002 …. Although not limited to errors by the court or court officers the rule is limited to genuine slips and cannot be used to correct an error of substance nor in an attempt to get the court to add to its original order …. The slip rule cannot be used to enable a court to have second thoughts or to add to its original order….A judge does have power to recall his order before it is issued but not afterwards."
"Whether on 7 March 2005 the Claimant was subjected to less favourable treatment on the grounds of her gender when informed by the Respondent that it would not transfer her over to an alternative position. The Claimant relies on Nick Dennett, alternatively a hypothetical comparator. The claim is against the First Respondent."
The Tribunal had considered the facts underlying this particular issue at paragraph 103 in which it set out a detailed series of findings in respect of the comprehensive failure on the part of Andrea Diable, who, we are told, was the head of human resources in the environmental department, to take any remotely interested steps in attempting to find her alternative work despite the impact of a number of potentially interesting pieces of information from various sources. The background to Ms Diable's involvement in these matters was that she was advising the Claimant's line management and, in particular, the fourth Respondent Mr Abu and there are references in various paragraphs to her having advised him having been involved in drafting various letters and so on.