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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Deer v Walford & Anor (Victimisation Discrimination : no sub-topic) [2010] UKEAT 0283_10_2004 (20 April 2011)
URL: http://www.bailii.org/uk/cases/UKEAT/2011/0283_10_2004.html
Cite as: [2010] UKEAT 0283_10_2004, [2010] UKEAT 283_10_2004
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EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
Judgment handed down on 20 April 2011
Before
THE HONOURABLE MR. JUSTICE UNDERHILL (PRESIDENT)
MR. M. CLANCY
MR. D. SMITH
1. MR G WALFORD
2. UNIVERSITY OF OXFORD RESPONDENTS
Transcript of Proceedings
JUDGMENT
APPEARANCES
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(one of Her Majesty’s Counsel) MR CHRISTOPHER QUINN (of Counsel)
Instructed by: Morgan Cole LLP Buxton Court 3 West Way Oxford OX2 0SZ
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(of Counsel)
Instructed by: Nabarro LLP Lacon House 84 Theobalds Road London WC1X 8RW |
SUMMARY
VICTIMISATION DISCRIMINATION
PRACTICE AND PROCEDURE – Costs
R1, C’s former academic supervisor, declines to give her a reference – C brings victimisation claim on basis that he knew, and was motivated by the fact, that she had previously brought a sex discrimination claim against the University, R2 – He denies knowledge of the previous claim – Tribunal invited to draw inferences from what are said to be evasive answers to statutory questionnaire
Tribunal dismisses claim, accepting that R1 had no knowledge of the previous proceedings and not drawing inferences from the answers to questionnaire – Costs awarded
Held, dismissing appeal:
(1) Tribunal entitled to dismiss claim – Answers to questionnaire did not justify inference of discrimination
(2) Tribunal entitled to award costs – Claim had been misconceived from the start, since there was no evidence supporting C’s suspicions, and a deposit order had been made
THE HONOURABLE MR JUSTICE UNDERHILL
INTRODUCTION
THE FACTS AND THE PROCEDURAL HISTORY
“I hope that everything is fine with you and that your work schedule remains somewhat manageable.
I am contacting you to ask whether you would accept in principle to act as referee attesting of my ‘research capacities’ if I were to apply for a research position in the University or for research funding outside the University.”
Professor Walford replied by email at 9.50 a.m. on 2 December as follows:
“Yes, of course I would be willing to act as a referee. You would have to up-date me on what you have been doing since the doctorate of course.
I don’t know what you are doing at the moment. I know you were with SKOPE for a while, but what is your present job ?”
The Appellant responded at 10.51 a.m. She told him that she was no longer with SKOPE but was teaching at Balliol. She attached “[a] covering letter, a brief outline of the research project, an updated CV and a list of publications … all of which are close to the final version”. She told him that the deadline for the reference was 8 December and added
“Sorry for the late notice but I hesitated before applying as my profile and the research project are rather atypical”.
Professor Walford responded briefly, asking for a publication list. He then, at 2.11 p.m., sent a further e-mail as follows:
“After looking at this, I really don’t think there is much point in writing a reference. I don’t see that you have a chance of this Fellowship.
First, they say that they usually do not give these Fellowships to people who are beyond 6 years from their doctorates. You are 8 years beyond.
Second, there is a really big gap in your publishing and CV. You have nothing published at all in 2005 or 2006, and there is practically nothing that relates to SKOPE at all, yet you were employed by SKOPE for 7 or 8 years. From the publication list it looks like you used the time to publish material related to your doctorate rather than do anything new at SKOPE. And also to write a book on another subject altogether. This may be incorrect, but it certainly needs explaining.
You say virtually nothing about your time with SKOPE and I think you do not have a referee from SKOPE. It looks amazingly suspicious and I don’t think anyone will look at this as an application for a Fellowship.
Sorry, I don’t see that I can write you a reference. ”
“All I did was comment on your application – as it reads to someone who does not know what you have been doing for the last few years. My comments were simply based on the information you provided – or did not provide. My reading is likely to be the same as anyone reviewing your application.”
9. Firstly, para. 6 of the Appellant’s statement read:
“In June 2008 I settled an Employment Tribunal claim that I had brought against the University of Oxford. Due to the unusual origins of the case, my case received a wide amount of publicity.”
Professor Walford’s comment on that paragraph was:
“I do not know about item 6. I was vaguely aware that you had some sort of legal case with someone or something linked to the university, and that it was linked to football. That is all I have ever known about it. I cannot remember how I obtained even this limited amount of information, but it was probably a passing corridor comment in my department. I did not know that it was ‘an Employment Tribunal claim’ nor that it was settled. I still do not know if the case was ‘won’ or ‘lost’. I have no idea what publicity your case received. I do not read local newspapers, or ‘student’ newspapers. I buy no newspapers, but occasionally read a national newspaper in the College Common Room. I have no TV. I listen to Radio 4 only – no other stations.”
10. Secondly, para. 18 of the statement said (referring to Professor Walford’s e-mail of 13 December):
“I do not accept that this explanation for your refusal to provide me with a reference is the true reason. I suspect the reason relates to the claim that I brought against the University and that this is the real reason why you have not provided me with a reference”.
Professor Walford’s reply to this was:
“I find point 18 insulting to me. I accept that it is probably correct that you did not accept the explanation that I provided and that you suspect what you state. However, your suspicions are completely wrong. As I have stated above, I know practically nothing about the claim brought against the university.
As you know, we have had very little contact for the last eight years. I am still very sad that you did not discuss this with me before taking the current action. I believe that we have always had a good working relationship and I am sad that this appears to have broken down. My reasons for not agreeing to act as a referee in this case were simply that I did not feel that I could write a reference that would help your application, and certainly nothing linked to a particular legal case that I still (at the time of writing this) know practically nothing about. I would have been happy to clarify this with you if you had asked me, rather than expressing a suspicion about my motives which is completely unfounded. I hope and trust that you are now reassured.”
11. There are other relevant answers in the questionnaire, but it will be more convenient to return to these later.
“I believe Professor Walford was influenced by matters other than set out in my application. I believe that this was the claim that I had brought against the University during my time at SKOPE.”
The University was joined on the basis that it was vicariously liable for Professor Walford’s acts.
13. On 19 March 2009 the Appellant served a questionnaire on the University. We will refer to one aspect of it, and the University’s response, in due course.
14. Shortly afterwards, the Appellant started further proceedings against the University, alleging that it had victimised her contrary to the 1975 Act by improperly obtaining access to her College e-mail account in order to assist it in answering her questionnaire in the current proceedings.
“whether the First Respondent (Professor Walford) knew or suspected that the Claimant had done the protected act, in particular that you made a complaint under the Sex Discrimination Act, on or before his email on 2 December 2008 at 14:11 and if so whether the First or Second Respondent (by colluding with the First Respondent) treated the Claimant less favourably by reason that she had done the protected act, by declining the Claimant’s request for a reference for a Junior Research Fellow Post in modern languages on 2 December 2008.”
The reference to the University “colluding with” Professor Walford goes further than what had in fact been pleaded in the Particulars of Claim, which rested the claim against it purely on the basis of vicarious liability. There is no clear account of how the addition of this further allegation came to be agreed (Mr Quinn was not then acting), and it was not particularised; but it nevertheless thenceforward formed part of her case.
16. On the same occasion Judge Chudleigh acceded to an application by Ms. McCafferty to make a deposit order. The Judge formally recorded that she considered “that the Claimant’s contentions relating to all of her allegations have little reasonable prospect of success” and directed that a deposit of £100 be paid within 21 days. We should set out her reasons in full. They were as follows:
“1. It is considered that there is little reasonable prospect of the Claimant establishing
1.1 That the First Respondent knew or suspected that the Claimant had done a protected act. He asserts only that he had a vague recollection that a colleague may have mentioned that the Claimant had some sort of legal case with someone or something linked to the University and that it was to do with football. In order to establish her case the Claimant will have to prove that Professor Walford was lying as to this assertion.
1.2 Proving that the First Respondent declined to give a reference because of any protected act that she may establish. The time frame during which the First Respondent would have had to have changed his mind with regard to the reference is likely to have been small. Further, the explanation given for the decision to decline to give a reference is on the face of it credible. The Claimant has not explained what primary facts she will rely on in order to invite the Tribunal to infer victimisation.
1.3 Establishing that the Second Respondent colluded with the First Respondent in so as to encourage him to decline to give a reference in light of the First Respondent's assertion that he consulted with no-one other than the Claimant with regard to the reference request. Again, the Claimant is going to have to show that the First Respondent is lying about this.
1.4 Finally, there is little reasonable prospect that the Claimant will establish that the Respondent's legal advisors accessed the Claimant's professional email account at Balliol College in order to assist the first Respondent with his response to the Sex Discrimination Act Questionnaire. This allegation is of serious (possibly criminal) conduct on the part of legal advisors. The Claimant was asked to indicate which portion of the response was influenced by improperly accessed email. She said that it was the second passage of response five on p. 21 of the bundle where the First Respondent indicates that the question, which is related to alleged prejudice affecting the Claimant's ability to apply for or secure research positions shows a difference in understanding in the importance of a reference from the supervisor of an application at this stage in an academic career. It appeared to the Tribunal that the Claimant had little reasonable prospect of establishing that this passage was derived from private email communication.
2 In reaching the decision to make a deposit order the Employment Judge took into account the fact that this is a complaint of sex discrimination and accepted that such orders should not be made lightly. The Employment Judge reminds the Claimant that this Order is not a bar to her continuing with her proceedings simply a requirement that she pay a deposit as a condition of so doing. The Tribunal also draws the Claimant's attention to the fact that if she continues to take part in these proceedings she may have an award of costs made against her and could lose her deposit.”
17. At some stage – we believe after the hearing of 2 October – the Appellant started a third set of proceedings against the University, complaining of the rejection of a grievance which she had raised in relation to the subject-matter of her first and/or second claims. It was initially intended that all three claims be heard at a hearing listed for February, but at a case management discussion on 25 January it was directed that they be “de-coupled” and that only the present claim, i.e. the first, would proceed on that occasion. Directions were given for witness statements to be exchanged by 29 January. We were told by Mr Reade, and have no reason to doubt, that the witness statement prepared by the Appellant had been intended to cover all three claims, but it was served on 29 January without any attempt being made to edit it so that it related only to the issues in the first claim: we return to this point in due course.
18. We should for completeness mention that a fourth claim has since been brought against the University arising out of the appeal against the grievance which was the subject of the third set of proceedings. The three later claims have all been stayed pending the outcome of the present appeal.
THE ISSUES BEFORE THE TRIBUNAL
19. The Appellant’s fundamental case was that Professor Walford’s decision to refuse her a reference, and the terms in which he did so, were significantly influenced by the fact that she had previously brought sex discrimination proceedings against the University. It was common ground that it followed that it was necessary for her to show that he knew about those proceedings. It was also accepted that the limited degree of knowledge which he acknowledged in his answers to the questionnaire (see para. 8 above) was insufficient, since it did not involve any knowledge that her claim was one of sex discrimination – see Aziz v Trinity Street Taxis [1988] ICR 534, at p. 584 A-D. The central issue in the case was thus whether Professor Walford’s denial of any greater degree of knowledge was truthful. As Mr Quinn put it in his written closing submissions to the Tribunal (see para. 37):
“It is fully accepted by the Claimant … that ultimately the determination of liability in this case rests upon what the Tribunal made as to the credibility of GW’s evidence. Given the nature of his defence (that he did not know enough about the earlier claim to have been guilty of victimising the Claimant), it is conceded that if the Tribunal accept that he is being fully truthful as to the limited nature of his knowledge of her earlier claim then this claim will fail.”
Mr. Quinn recognised that, even if Professor Walford did have the requisite knowledge, there was a further question as to whether that knowledge significantly influenced his actions; but it was his case that if he had not been frank about the extent of his knowledge that was a clear indication that he had in fact been influenced by it.
21. First, questions 7 and 8 in the Appellant’s questionnaire to Professor Walford read as follows:
“7. Please estimate how many reference requests you received from former Doctoral students each year?
8. Have you ever previously refused to act as a referee? If so, please provide a break down by individual (gender and age and reasons given for refusals). Please provide an anonymised copy of any such refusal”
His answers were:
“7. I do not keep records of this, but I think very few. I would guess about two or three per year. These are most [sic] requests immediately after gaining the doctorate and there are very few indeed as the years go by. I don’t remember ever before being asked for a reference from any former doctoral student who graduated eight or more years previously. Indeed, I don’t remember ever being asked for one after more than about four years except where there has been direct regular contact in between.
8. Whilst I don’t keep records of this. Yes, I have refused to write references for people where I did not believe that I could write a good reference for a specific job application. Sometimes, people ask me to write references for very different applications at a similar time. I would then ask which one they would prefer me to write. It is a small number, but I am actually not asked to write many references at all.”
(We should also note for completeness that in answer to question 9 Professor Walford said that he would only write references if he was able honestly to support the application and his reference would be helpful to the applicant.)
22. Secondly, question 11 in the Appellant’s questionnaire to the University read as follows:
“Professor Walford has stated that he provides two or three reference every year for his former students. He also claims to have refused references in the past. Please retrieve as many examples of references and any refusals to provide references by Professor Walford as possible and supply in an anonymised format and where available please include any associated correspondent.”
The University’s answer was:
“Professor Walford has already informed you that he does not keep copies of requests or refusals. He has also explained that he would decline to provide a reference if he did not feel able to support the application. We do not consider it either proportionate or in compliance with the DPA principles to request him to see if he can locate any references he may have provided during his academic career. We consider this to be unnecessarily intrusive as we not believe that references can be properly anonymised.”
23. Mr. Quinn cross-examined Professor Walford about his responses. An agreed note of the relevant part of the cross-examination was put before us. The gist is as follows.
24. As regards para. 8 of the answer to the questionnaire directed to Professor Walford, Mr Quinn established that he was able to remember two specific occasions on which he had refused to give a reference – one relating to an Australian and one to a Chinese student. As regards the Australian student, the refusal had been by e-mail: he thought that it had occurred in the last year, in which case it would have post-dated the completion of the questionnaire. As regards the Chinese student, he had told her of his decision face-to-face. He did not think that there were any other e-mails containing refusals of a reference, but he said that he had not searched his e-mail account because no-one had suggested that he should do so: specifically, the University’s solicitors had not made any such suggestion. He said:
“No-one told me to ask for such emails. I get two/three requests per year but I have thousands of emails in my email account.”
He said that he had looked in his filing cabinet, but he accepted Mr. Quinn’s observation that since the mid-90s he had been using e-mail as well as post.
25. As regards the University’s questionnaire, there was this exchange between Mr. Quinn and Professor Walford:
“Q: Were you asked to search your email account for all correspondence between you and the Claimant?
A: I was asked for relevant emails in the relevant period.
Q: Were you asked to go further and search for all potentially relevant documents?
A: No, I don’t think I was asked to search for all potentially relevant information.
Q: Were you asked to search all email accounts for other reference refusals?
A: No I was not.”
26. Mr. Quinn returned to the point later in his cross-examination. Professor Walford said that he had not referred to the Chinese student when answering question 8 simply because he had not remembered her at the time. There was then the following exchange:
“Q: Is the reality that you were determined, after consultation with Oxford University, not to provide any helpful detail to allow the Employment Tribunal to conduct a comparison between the choice of language of your refusal in Cecile Dear’s case and other refusals?
A: No. These are my own words. I knew there were other instances, that I’d said to people that I couldn’t. I gave it thought. Trawling through e-mails is very difficult as you need to know who the person is before you can trawl through.”
“Where the person aggrieved questions the respondent (whether in accordance with [a statutory questionnaire] or not) –
a) …
b) if it appears to the court or tribunal that the respondent deliberately and without reasonable excuse omitted to reply… or that his reply is evasive or equivocal, the court or tribunals may draw any inference from that fact that it considers it just and equitable to draw including an inference that he committed an unlawful act.”
He submitted that Professor Walford’s answers in cross-examination showed that the original answers in both questionnaires had indeed been evasive and that that was an important factor justifying an inference of an intent to victimise.
THE TRIBUNAL’S REASONS
29. As we have already mentioned, the Tribunal gave brief oral reasons at the conclusion of the hearing. For reasons that will appear, it is necessary that we set these out. We have an agreed note in the following terms:
“The claim fails and is dismissed. The Claimant has not proved on the balance of probabilities that Professor Walford was aware on the 2nd December that she had brought a sex discrimination claim against the University.
The reason why Professor Walford declined to give a reference was transparently genuine and nothing to do with the fact that the Claimant had done a protected act.
A hypothetical comparator would be a person who had sought a reference, made the same application for the same junior research fellowship, with little contact with Professor Walford for eight years but who had not brought a claim against the University. They would have been dealt with in the same way.
The case has occupied the Tribunal for four days. The Tribunal understands why the Claimant was upset initially by Professor Walford’s email ... The Claimant is however an intelligent, strong and very independent woman. This is very clear from the documents in her own bundle. She is not averse to raising concerns on her own behalf and should have been able to accept genuine criticism of her application for what it was.
Either having received that criticism or of her volition the Claimant amended her application in light of those concerns highlighted by Professor Walford. She realised that there were flaws in her application or if we’re not right and she says when she sent it to Geoffrey Walford it was work in progress then she had identified the very omissions he was drawing her attention to.
The Claimant used the SDA Questionnaire procedures. The Tribunal considers that on receipt of Professor Walford’s response the Claimant should have realised that this claim had no reasonable prospect of success. The Tribunal asks itself whether Dr Deer did in fact reach that conclusion because in the conduct of the claim she felt it necessary to resort to scandalous, unsupported, unsubstantiated allegations against a disparate group of employees of the University including its solicitors. These allegations were unsupported by any shred of evidence.
The Claimant was disingenuous. On numerous occasions when cross examined she rarely on the first occasion answered the question put. Instead she answered an entirely different question, was evasive and gave unclear answers.
The Tribunal has considerable sympathy for Professor Walford who at the end of a distinguished career has been the subject of outrageous and scandalous allegations of collusion and conspiracy which in the end were not pursued.
At the beginning of these proceedings Professor Walford’s reputation and integrity was under attack. He leave this Employment Tribunal with his reputation restored. He was credible and we found him to be of the utmost integrity.
Sadly, by reason of her own actions, the Claimant will leave this Tribunal with her reputation tarnished”.
30. We were not told whether the Judge said whether those reasons were intended as satisfying the Tribunal’s obligation to give reasons for its decision, subject to any subsequent request for written reasons. Given their brevity, one might have thought that they were intended only as an informal summary, with written reasons to follow in any event; but the recital to the written Reasons provided subsequently suggests otherwise. The point ultimately does not matter, since we are told that Mr. Quinn in any event made it clear when answering the Respondents’ costs application that he required written Reasons: see para. 60 below.
31. The structure of the Tribunal’s written Reasons is as follows:
(1) Paragraphs 1 and 2 are purely introductory.
(2) Paragraphs 3-36 contain the findings of primary fact.
(3) In paragraph 37 the Tribunal criticises the making in the Appellant’s evidence in chief of serious allegations of misconduct by the University and its legal advisers which were irrelevant to the issues and which were not pursued by Mr Quinn. We return to this point below: see in particular para. 57.
(4) At paragraph 38 the Tribunal incorporates by reference the written submissions of Mr. Quinn and Ms. McCafferty. We note in passing that while this is often a sensible course it remains necessary in the part of the Reasons which sets out the Tribunal’s substantive reasoning to pick up and engage with the principal submissions made.
(5) The Tribunal’s conclusion and reasons on the central question of whether Professor Walford knew more about the Appellant’s previous proceedings that he had said are at paragraphs 39-44. These read as follows:
“39. Our conclusion is that the Claimant has failed to establish a prima facie case of victimisation.
40. The Claimant has not satisfied the Tribunal that Professor Walford knew or suspected that the Claimant had made a claim under the Sex Discrimination Act. Professor Walford’s evidence was clear, and always has been, that he did not know anything about the Claimant’s legal case other than it had something to do with football and was against the University or someone to do with the University.
41. The basis of the Claimant’s challenge is first that her claim against the woman’s football team was a matter of such publicity and importance that Professor Walford could not possibly fail to have been interested in its detail and that he would have taken steps to discover the particular basis of the claim and secondly that Professor Walford was made aware of the Claimant’s claim under the Sex Discrimination Act by an extensive collusion/conspiracy. The Claimant’s own witness Carol Clark who knew about the claim having read an English newspaper whilst in Paris gave evidence that she had been asked by members of her college “What’s this all about Cecile and football?”
42. The Claimant’s case received publicity on 14 and 15 and 24 January 2008 at a time when the Claimant was employed in Skope, a building and department separate from that occupied by Professor Walford. “A legal case about football” does not suggest an allegation of sex discrimination especially as it related to a women’s football team. The numerous paragraphs, 45 onwards, in the Claimant’s witness statement and documents in her 391 page bundle where she refers to “those reasons why I consider such a claim to be inconceivable” i.e. Professor Walford’s lack of knowledge that she had had a sex discrimination claim is dealt with following the heading “my earlier difficulties with the University”. The allegations show absolutely nothing that could link the conduct which she complains about, and the Claimant at the Tribunal was unable to even begin to explain the findings of fact that she was inviting the Tribunal to make on the basis of her own evidence. It is a fact that the Claimant’s representative abandoned the allegations relating to collusion and conspiracy and no questions at all on this matter were put to Professor Walford.
43. The Claimant also suggested that Professor Walford had declined to give the reference as he did not wish to be associated with a trouble maker. This allegation is just incredulous and not substantiated at all. And as the Respondent Counsel points out, if the Claimant had genuinely thought that there was even the slightest risk that Professor Walford would for his own reasons have decided to do her down because of her previous Sex Discrimination act claim, she would not have offered his name as a referee for her Jesus application without first having asked whether or not Professor Walford was happy to be a referee in that respect on her behalf.
44. We are satisfied beyond doubt that Professor Walford had no knowledge of the Claimant’s previous sex discrimination act claim so this claim can proceed no further and is dismissed”.
(The reference at para. 43 to “her Jesus application” was to an earlier application in which the Appellant had, though without asking him, given Professor Walford’s name as a referee.)
(6) At paragraphs 45-46, the Tribunal went on to find, by way of alternative that “if we are wrong” – that is, presumably, even if Professor Walford had known more about the previous claim than he admitted – his knowledge of the protected act had not influenced his decision to refuse to give a reference or to do so in the terms that he did. It said, at paragraph 45:
“The criticisms of the application and supporting documents by Professor Walford were legitimate and genuine. It must be common sense that when applying for a Junior Research Fellowship any panel considering an application would wish to know what the applicant had been doing during a research fellowship tenure which had endured for some eight years since the applicant obtained their D. Phil”.
At paragraph 46 it said:
“The comparator in this case is “a hypothetical comparator” who had given Professor Walford the same application for the same job after eight years of no significant contact but who had not brought a claim against the University. In our opinion such an individual would clearly have been treated in precisely the same way as the Claimant was treated. Professor Walford’s reasons for declining to provide a reference were in our opinion transparently genuine and admits of no victimisation whatsoever. For all of these reasons this claim fails and is dismissed”.
(7) At paragraph 47 the Tribunal addressed the Respondents’ application for costs., as follows:
“In respect of the Respondent’s application for costs under Rule 47 we find that the Claimant had conducted the claim unreasonably. This Tribunal is of the opinion that the grounds on which we found against the Claimant are substantially the same as those grounds set out at 1.1-1.3 of the grounds annexed to the Deposit Order made by Employment Judge Chudleigh in October 2009 and under Rule 38 and Rule 40 (3) we find that the Claimant was unreasonable in the way in which she conducted the claim and also her behaviour was scandalous by relying on allegations of collusion and conspiracy which in the end were not pursued and were certainly not substantiated and in any event this claim was misconceived from the very beginning. The Claimant, through her representative, concedes that this costs application can be dealt with on the basis that the Claimant has unlimited means.”
(We have not attempted to correct the somewhat breathless punctuation of this paragraph.)
THE GROUNDS OF APPEAL
THE LIABILITY APPEAL
GROUND 1
GROUND 2
43. We wish to add that we detected in the Appellant’s case on this aspect a mechanistic approach to the drawing of inferences of a kind which has been deprecated on several occasions at this Tribunal: see, for example, D’Silva v NATFHE [2008] IRLR 412, at para. 38 (p. 419). There are no special rules of law about what inferences should be drawn from unsatisfactory answers to the statutory questionnaire. The process involved in deciding what, if any, inference should be drawn in the case of an evasive or equivocal answer is no different in principle from that to be applied in any other case where an inference of discriminatory behaviour is sought to be drawn. The question is always whether, in the circumstances of the particular case, the act or omission in question tends to show that the respondent acted in the way complained of – typically that he acted with a discriminatory motivation.
44. We should say for completeness that we were referred by both parties to some other authorities, in particular Hinks v Riva Systems (EAT/501/96); Scott v London Borough of Hillingdon [2001] EWCA Civ 2005, and House v Chief Constable of Avon and Somerset (UKEAT/0061/08); but they did not seem to be authority for any principles relevant to the determination of the appeal.
GROUND 3
45. We should set out this ground in full:
“Exculpating the Respondent and making inappropriate findings as to the Claimant and her conduct of the case in the circumstances that the Respondents had wrongly denied her the necessary source material to make good her claim.
3.1 The strength of the remarks made by the Tribunal in support of the Respondents and by way of condemnation of the Claimant were unsustainable and/or unfair given the fact that, as was revealed by Professor Walford’s answers in cross-examination, the Respondents had by their conduct of the case, and, in particular, by their failure to give proper responses to the Questionnaire and, thereafter, to disclose Professor Walford’s records of previous responses to requests for references, denied the Claimant of the essential source materials necessary to make good her claim. Professor Walford’s previous responses to requests for references may, by reason of either their content or their tone, been so wholly at odds with his behaviour towards the Claimant that the logical inference to draw was that he was victimising her.
3.2 The Tribunal’s remark that the Claimant would leave the Tribunal with her reputation tarnished was particularly unfortunate and was illustrative of an unreasonable hostility towards the Claimant on its part. This hostility led it to engage in conjecture in its remarks that it did not give her the opportunity to comment on, namely its suggestion that the reason why she had made what it called “scandalous allegations” about a number of individuals was because she had realised (on receiving Professor Walford’s reply to the questionnaire) that her claim had no reasonable prospects of success”.
46. That is somewhat curiously expressed, and the uncertainty as to the target being addressed was not entirely resolved by either Mr. Reade’s skeleton argument or his oral submissions. Broadly, it appears to be a complaint about some of the criticisms made of the Appellant by the Tribunal in the oral observations which we have set out at para. 29 above, and which go beyond its actual decision as recorded in the Reasons. One of the particular complaints relates to a matter which we will have to consider in due course in connection with the costs appeal. But as to the rest, even if the Tribunal’s criticisms of the Appellant were unjust or overstated (which we have no reason to suppose they were), that would only give rise to a ground of appeal if it was said that the Tribunal had not set out to determine this case fairly and impartially – in other words, if this were presented as a case of bias. The appeal was not, and could not have been, put in that way. The Tribunal evidently formed a poor impression of the Appellant, but that impression cannot be challenged unless its substantive reasoning is shown to be wrong in law – which is the subject of the other grounds.
47. That general complaint is, however, linked – though it is unclear how the two points are in fact connected – to a specific complaint about the Respondents having “denied the Claimant the essential source materials necessary to make good her claim” by the failure to give proper responses to the questionnaires about previous refusals of references by Professor Walford and by failures of disclosure. Insofar as the responses to the questionnaires are concerned, this has already been dealt with. Insofar as the complaint is about failures of disclosure, the Appellant’s point is that Professor Walford ought to have searched his entire e-mail file for previous occasions when he had refused a reference, and the University and its solicitors should have told him to do so. Despite the forensic importance attached to this point by Mr. Reade and Mr. Quinn, we are far from convinced that such a search was necessary. Even if (despite the point made by Professor Walford about the difficulty of searching without a name to look for) examples of documents containing previous refusals of references had been unearthed, the comparison of their precise terms with those of the e-mail of 2 December to the Appellant would have been an exercise of very doubtful value. What Professor Walford wrote would, inevitably, be highly dependent on the circumstances of the particular case, and elaborate analysis of the circumstances of a number of different refusals over the years in order to detect differences that might justify an inference of special hostility to the Appellant seems to us a disproportionate exercise. However, if the Appellant thought otherwise her remedy was to apply to the Tribunal for an order for specific disclosure. She did not do so.
GROUND 4
48. This ground makes some miscellaneous challenges to the Tribunal’s reasoning. Mr. Reade did not develop them in any way in his submissions and we can deal with them briefly.
49. At para. 4.1 it is said that the Tribunal failed explicitly to address an argument that the tone of Professor Walford’s e-mail of 2 December was so different from his normal “mild demeanour” that it must be due to “anxiety about being associated with the Claimant due to the fact of her earlier claim”. It is well established that a tribunal is not obliged to deal with every supporting point or argument used by a party. The point referred to here is so frail that it could not possibly have undermined the Tribunal’s principal reasoning, and we can well understand why it did not feel it necessary to refer to it.
50. Para. 4.2 refers to the point made in the second half of para. 43 of the Reasons. We are inclined to agree that, at least as stated, the point does not seem particularly strong; but it is plain that it was not central to the Tribunal’s reasoning.
51. Para. 4.3 challenges the Tribunal’s passing comment in para. 41 of the Reasons that a dispute relating to the women’s football team would not sound to someone who knew nothing else about it like a claim of sex discrimination. We cannot see what is wrong with that.
52. Para. 4.4 raises an issue to which we will return in connection with the costs appeal.
53. At para. 4.5 the Appellant refers to an observation said to have been made by Professor Walford in his evidence, to the effect that his main reason for refusing a reference was not so much because he did not believe that her application would succeed as that any reference that he gave would not help her. But the points are clearly inter-related, and in any event precisely how Professor Walford characterised his reasons does not matter if they had nothing to do with her previous claim. In the last sentence of para. 4.5 it is pleaded that the Tribunal asked itself whether Professor Walford’s criticisms of the Appellant’s application were valid rather than whether they were the true reason for his refusal to give a reference. But it is clear that the reason why the Tribunal asked the former question (and in that context attached importance to the fact that the Appellant herself apparently took the criticisms on board) was that if the criticisms were valid they were the obvious explanation for his decision: it is only if they were patently weak that their genuineness might be called into question.
54. At para. 4.6 it is said that the Tribunal “failed to make clear findings about Professor Walford’s criticisms of the Claimant’s application”. But it made the finding that mattered, namely that his criticisms represented his genuine views and underlay his decision not to give her a reference.
THE COSTS APPEAL
PRELIMINARY
55. We should first analyse the basis on which the Tribunal made its order. The reasons given at para. 47 (see para. 30 (7) above) are distinctly summary; but Ms. McCafferty submitted that they were adequate in the circumstances of the case.
56. We start with the relevant rules. Rule 40 (3) of the Employment Tribunal Rules of Procedure provides that an order for costs may be made where:
“(2) A tribunal or [Employment Judge] shall consider making a costs order against a paying party where, in the opinion of the tribunal or [Employment Judge] (as the case may be), any of the circumstances in paragraph (3) apply. Having so considered, the tribunal or [Employment Judge] may make a costs order against the paying party if it or he considers it appropriate to do so.
(3) The circumstances referred to in paragraph (2) are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived.”
Rule 47 deals with the particular case where a deposit has been ordered under rule 20. In such a case the Tribunal is obliged to consider whether to make a costs order on the ground that by “unreasonably persisting in having the matter determined” the claimant has conducted the proceedings unreasonably; but it must be satisfied that the grounds on which the claim has failed are substantially the same as those which led to a deposit being ordered.
57. Against that background, the Tribunal found that three distinct grounds for awarding costs were present. We take them in turn.
58. First, the case fell squarely within rule 47 (1). Judge Chudleigh had made a deposit order and her reasons for doing so substantially corresponded to the Tribunal’s reasons for dismissing the claim (see para. 16 above). The Tribunal believed that the Appellant’s conduct in persisting with the claim notwithstanding the order was unreasonable. This is the point made in the first half of para. 47, down to the words “conducted the claim”. It is shortly stated, but there is not much more to be said.
59. Secondly, the Appellant had conducted the claim “scandalously” by making allegations of collusion and conspiracy which were not pursued or substantiated. (“Scandalous” is not in fact a term which appears in rule 40 (3), but conduct which merited that label would certainly be unreasonable and possibly also vexatious or an abuse.) The Tribunal evidently intended to refer back to the findings it made at para. 37 of the Reasons. These can be summarised as follows. As mentioned at para. 17 above, the witness statement served by the Claimant covered also matters on which she relied in her second and third claims. These did indeed make very grave allegations of misconduct against the University and its solicitors: we need not rehearse the detail, which are set out in para. 37. The Claimant gave her evidence in chief by reading her witness statement aloud. She did so in full, including the allegations in the second and third claims. Although Mr Quinn did not subsequently put any of those allegations to the Respondents’ witnesses (even to the extent that they might have been within their knowledge) and did not pursue them in his closing submissions, the fact is that they had been made in open Tribunal, and in circumstances where (as the Tribunal pointed out) the press were present. Ms. McCafferty cross-examined the Appellant about some at least of this material. In the circumstances she was entitled to do so, and no doubt she saw advantage in seeking to expose the allegations in question as groundless. It was only at this stage that Mr Quinn intervened to disavow any reliance on the material in question, but there is some dispute, which we need not seek to resolve, about how fully he did so.
60. Thirdly, the claim was misconceived. The importance of this ground, if it is good, is that it justifies the making of an order, as the Tribunal did, from the date of the commencement of the proceedings rather than from the date of the deposit order.
GROUND 5
61. Ms. McCafferty made an application for costs at the conclusion of the hearing, immediately following the Tribunal’s announcement of its decision and the brief oral reasons set out at para. 29 above. Mr. Quinn submitted that he ought not to have to respond until he had seen the Tribunal’s written Reasons, but the Tribunal rejected that submission and he was required to respond to the application then and there. The Tribunal then retired. When it returned the Judge announced its decision with brief oral reasons. It is agreed that these were substantially in the terms of the para. 47 of the subsequent written Reasons (see para. 30 (7) above).
62. Ground 5 is that it was wrong in principle for the Tribunal to have determined the costs application without having produced written Reasons. In our view there is no general rule about this. It would have been wrong for Mr. Quinn to be asked to respond to the costs application if he did not know the basis on which the application was being made or for the Tribunal to decide it on the basis of points on which he had not been given the opportunity to address it. But Mr. Reade did not suggest any particular prejudice of this kind: his point was purely at the level of principle. It seems to us in any event that Mr. Quinn should not have been in any difficulty in dealing with any of the three bases on which the Tribunal based its award. Short through the oral reasons were, they were sufficient to allow submissions to be made as to whether they corresponded to the grounds for the deposit order. The facts in relation to the “scandalous” pursuit of the allegations of collusion arose out of the conduct of the hearing and will have been well-known to Mr Quinn. As to the ground that the claim was misconceived, this is, frankly, in the ordinary case something which an advocate can rarely effectively address since it is essentially a judgment which follows from the Tribunal’s assessment of the substantive merits, on which it will already have formed a definitive view in its liability decision (and on which it will already have been addressed in that context). But in so far as there was room in this case for a “wrong but not misconceived” argument the Tribunal’s oral reasons told Mr. Quinn enough about its approach to enable him to run such an argument.
63. We accordingly dismiss ground 5.
GROUNDS 6 and 7
66. Various points are made under these grounds, but they were helpfully brought together by Mr Reade in his skeleton argument as follows:
“(1) Far from being a misconceived claim, this was a claim that the Tribunal would have upheld had it directed itself properly to the issues of section 74 and disclosure on the part of the Respondents.
(2) Liability in this case depended solely upon what a Tribunal made of Respondent 1. It was not unreasonable of the Claimant to pursue such a claim all the way to a full hearing.
(3) The fact of an earlier deposit order having been made against the Claimant (see paragraph 9 of Respondent’s Answer) should not have been relied upon. When making that deposit order the Tribunal can have had no knowledge as to the Respondents’ defective approach to section 74 or to disclosure. Furthermore the decision to make the deposit order appears to have been influenced by a factor that formed part of the Claimant’s wider case which fell away upon de-consolidation, namely her allegation that her email account had been improperly accessed.
(4) This was not a case in which the Respondents could sensibly contend that any of the “serious allegations of misconduct and collusion” made by the Claimant had led to any increase whatsoever in its costs: see paragraph 10 of their Answer. To the contrary it had elected to call no evidence whatsoever in respect of those allegations. This trial saw the strange spectacle of the Respondents specifically cross-examining in large part of the Claimant’s evidence after the Claimant’s Counsel had already made it clear that he was not relying on the same and would not be cross-examining their sole witness on any part of it.”
We take those points in turn.
67. As to (1), this depends on the Appellant having persuaded us that the Tribunal erred in the conclusions it drew, or did not draw, from the answers to the questionnaires and/or the Respondents’ alleged failures in relation to disclosure. But she has not done so.
68. As to (2), this overlooks the fact that there was never in truth any real basis for suspecting that Professor Walford knew about, still less had been motivated by, the fact that the Appellant had brought a sex discrimination claim against the University. She was no doubt taken aback and upset by the negative tone of his e-mail; but the idea that that might be because he had learnt about her claim was the purest supposition. No doubt she found it hard to accept that his criticisms of her application might be valid. No doubt too her claim had been a major event in her life, and it is easy to slip into thinking that it must have loomed as large for others as it had for her. Both reactions may natural, but the fact remains that there was no evidence to support her belief and also that it was inherently implausible that Professor Walford, whose previous relations with the Appellant had been perfectly friendly, should have conspired to do her down and then to lie about it. It was precisely this absence of evidence that led to Judge Chudleigh making her order for a deposit.
69. As to (3), we have to some extent addressed this above. As to the particular points made, that based on the questionnaire and disclosure falls away for the reasons already given. As for the fact that one of Judge Chudleigh’s four grounds was concerned with the subject-matter of the second claims, that does not affect the fact that the three grounds that related to the instant claim did indeed broadly correspond to those on which the claim eventually failed.
70. As to (4), the suggestion that it was Ms. McCafferty who “cross-examined in” these allegations does not accurately reflect the position, as explained at para. 59 above. Although Mr Quinn did eventually disavow these allegations, though possibly not entirely unequivocally, the fact is that they had already been made – and not merely by being left in the witness statement following the decoupling of the claims, but by being read aloud at the hearing. Nor were the allegations of collusion entirely limited to the subject-matters of the second and third claims. “Collusion” between Professor Walford and the University was an allegation made, albeit unparticularised, in the agreed issues (see para. 15 above); and the Appellant in her witness statement alleged not simply that Professor Walford knew the nature of her earlier proceedings but also that he allowed the University’s lawyers to tell him to refuse the reference and in what terms (see para. 42). It may be right that the allegations of misconduct contained in the Appellant’s witness statement did not materially increase the Respondents’ costs. We do not believe that it follows that they could not be taken into account in the exercise of the Tribunal’s discretion as to whether or to make an order under rules 38-41 and if so in what amount. But we did not hear specific submissions on that point, and even if this particular ground should not have carried weight with the Tribunal, it is entirely clear from para. 47 of the Reasons that it regarded the other two grounds as sufficient to justify the order made.
71. Accordingly, none of the specific challenges made to the award of costs is made good. We would add that, taking an overall view, exceptional as the award of a full costs order in the Employment Tribunal may be, we agree with the Tribunal that this is a case where it was justified. The Claimant had brought an expensive and damaging claim against Professor Walford and the University based on nothing more than an implausible speculation and had persisted in it after a clear warning from the Tribunal.
CONCLUSION
72. The appeal is dismissed in its entirety.