United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R C ENGLISH (The Appellant in Person)
For the Respondents	MR S PEACOCK (Solicitor) Messrs Weightmans LLP Solicitors India Buildings Water Street Liverpool L2 0GA


 


SUMMARY

Preliminary hearing of an appeal dismissing a claim of sex discrimination. Appeal allowed through to a full hearing on grounds of inadequate findings of fact and failure to address the Claimant's submissions in its conclusions.

HIS HONOUR JUDGE BIRTLES

1. We have come to the following decision. If we take the Notice of Appeal, page 28 of Mr English's bundle, paragraph 2, it identifies five grounds of appeal. The first ground of appeal is in relation to what I will call the "without prejudice cost letters" and, for reasons I will give in a minute, we are not going to put that through to a Full Hearing. The second ground of appeal is in relation to Mr Clay's evidence. We agree that should go through to a Full Hearing. The third ground of appeal is: the reasons are inadequate because the Tribunal did not explicitly address even the main points of the Claimant's submissions. We feel on balance that should go through to a Full Hearing. The fourth ground of appeal is that in failing to address the submissions of the Claimant, the Tribunal failed to make adequate findings of fact. We think on balance that should go through to a Full Hearing because it is inextricably linked with the third ground of appeal. The fifth and final ground of appeal is that the Tribunal failed to operate the two stage burden of proof test applicable in discrimination cases, the Igen test. We are not going to put that through for a Full Hearing.
2. In addition, because it is linked with the second ground of appeal, we will put through the Respondent's cross-appeal to a Full Hearing. I will now give reasons for rejecting grounds one and five.
3. Ground one: the ground is that in regards to Mr English's victimisation claim, the Tribunal erred in failing to entertain submissions and make a decision regarding whether the use of the "without prejudice" principle is a cloak for unilateral cost threats constituted unlawful victimisation.
4. The Tribunal did not in fact fail to entertain submissions. The issue is dealt with in the Tribunal's judgment at paragraphs 4 and 5. Paragraph 5 makes it clear that Mr English applied to amend his claim of unlawful discrimination and victimisation to include further evidence concerning the manner in which the Respondents, he alleged, had unlawfully conducted themselves in relation to his appeal of the grievance decision, up to and including events in December 2008. Paragraph 6 notes that there was discussion. The Claimant (that is Mr English) was satisfied, in respect of the treatment that had allegedly taken place, in connection with the delay and threats of cost applications in correspondence to the Claimant from the Respondents' solicitors that he would make a claim for aggravated damages against the First Respondent and did not seek to amend his claim form to include allegations that had arisen after 26 August 2006; that included the appeal decision dated 5 May 2007. Both parties agreed that the allegation concerning lengthy delay of the grievance and cost letters would be dealt with by the Tribunal, if and when they were asked to consider a claim for aggravated damages. In the event, of course, that has not yet arisen.
5. The issue is really a very simple one. While we understand and sympathise with the fact that Mr English was acting in person, the reality is that the law must apply to a person, whether they are represented or whether they represent themselves. In this case there is no decision by the Employment Tribunal refusing an application to amend the claim form in the way that Mr English initially sought to do. He was persuaded that the matter could be dealt with by way of a claim for aggravated damages at the end of the hearing. As I say, there was no decision; there can, therefore, be nothing to appeal against. This Tribunal does not entertain academic or moot questions, interesting though they may be.
6. Ground five: the Igen test. That is dealt with in the Employment Tribunal's decision at paragraphs 77-84. Paragraph 77 states that the Tribunal applied the two stage process identified in Igen and concluded that the Claimant Mr English had proved facts from which the Tribunal could conclude that there had been discrimination. In paragraph 78 they note that once he had done so, the burden shifted to the Respondents to provide an explanation untainted by sex, failing which the claim succeeds. The Tribunal was satisfied, for the reasons they then set out in paragraphs 79- 84, that the Respondents had discharged that burden.
7. While criticisms could be made of parts of the reasoning, in our view it is quite clear that this part of the judgment is Meek compliant. For those reasons we do not permit either of grounds one or five to go through to a full hearing.
8. This is a Category B case with a time estimate of three hours to Counsel. Application to appeal was given. An amended Notice of Appeal to be lodged by 4.00pm on 11 November.