United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0189/16/DA

UKEAT/0190/16/DA

UKEAT/0191/16/DA

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

At the Tribunal

On 1 February 2017

 

 

 

Before

HER HONOUR JUDGE EADY QC

(SITTING ALONE)

 

 

 

 

 

 

MISS K PHILCOX APPELLANT

 

 

 

 

 

CGDM LTD t/a ANDREW WILSON & CO RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR M PHILCOX (Representative)
For the Respondent	MS KAREN MOSS (of Counsel) Instructed by: Messrs Chadwick Lawrence Solicitors Paragon Point Paragon Business Village Wakefield WF1 2DF

 

 

SUMMARY

PRACTICE AND PROCEDURE - New evidence on appeal

PRACTICE AND PROCEDURE - Striking-out/dismissal

PRACTICE AND PROCEDURE - Imposition of deposit

 

New evidence appeal

Appeals against strike out and deposit orders

On her first appeal, the Claimant sought to rely on new evidence.  Accepting it could not have been obtained with reasonable diligence for use at the ET hearing and was apparently credible, the question was whether it was relevant and would probably have had an important influence on the ET hearing (Ladd v Marshall [1954] 1 WLR 1489 applied).  The ET was best placed to determine questions of materiality.  Here it was apparent that the documentation relied on by the Claimant did not in fact show what she claimed.  It did not undermine any material finding by the ET and she could not demonstrate that it established that the Respondent had misled the ET or had otherwise acted in such a way as might have adversely impacted upon the credibility of its case before the ET.  That was true in respect of the specific allegation to which the new evidence most obviously related but also as regards the other allegations of sex discrimination and the Claimant’s complaint of unfair dismissal.

The second and third appeals related to subsequent ET decisions in respect of further claims brought by the Claimant, by which she complained of post-termination of employment victimisation.  The ET had struck out her complaint in respect of witness statements on the basis that these were covered by litigation privilege.  It had not thereby erred in its approach as a matter of law (Parmar v East Leicester Medical Practice [2011] IRLR 641 EAT, applied).  It had, further, made deposit orders in respect of two other claims of victimisation.  In each case, the ET had permissibly taken the view that the Claimant’s claims had little reasonable prospect of success and had adequately explained its reasoning.

All three appeals would be dismissed.

 

HER HONOUR JUDGE EADY QC

 

Introduction

1.                  I refer to the parties as the Claimant and Respondent as below.  This is the Full Hearing of the Claimant’s appeals against Judgments of the East London Employment Tribunal (“the ET”).  The first (UKEAT/0189/16/DA) is against a Judgment of the ET (Employment Judge Jones sitting with Mrs Long and M D Ross over eight days in March 2015, with an additional day in chambers in May; “the Jones ET”), sent out on 28 September 2015, by which the Claimant’s claims of sex discrimination, unfair dismissal and unauthorised deductions were dismissed.  The other appeals relate to subsequent decisions of the ET (Employment Judge Prichard sitting alone on 24 August 2015; “the Prichard ET”), sent out on 1 October 2015, by which various of the Claimant’s post-termination victimisation claims were struck out (appeal UKEAT/0190/16/DA) and in respect of which Deposit Orders were made (appeal UKEAT/ 0191/16/DA). 

 

2.                  The proposed grounds of appeal in the Claimant’s first appeal were initially considered on the papers by the Honourable Mrs Justice Simler DBE; those in the second and third appeals by His Honour Judge Shanks.  In each case it was considered that the proposed appeal disclosed no reasonable basis to proceed.  The Claimant exercised her right to be heard under Rule 3(10) of the Employment Appeal Tribunal Rules 1993, and her applications in that regard came before me at a combined hearing on 13 June 2016, at which I was persuaded to permit the appeals to proceed on limited grounds (see my Order from that hearing).

 

3.                  I subsequently conducted an all-parties Review and Directions Hearing specific to appeal UKEAT/0189/16/DA on 13 January 2017.  My decision and further directions are recorded in the Order made that day.  At the end of that Review and Directions Hearing, during a discussion as to the remaining steps before the Full Hearing of the appeals, I made plain my understanding that the current listing of this matter remained as fixed and that the parties were expected to comply with such directions as had already been made.  No applications were made to me at that stage for any variations to those directions or for a postponement of this hearing.

 

4.                  By letter of 20 January 2017, the Claimant made applications to the EAT as follows:

“1. an application for a review of the paragraphs 1 and 2 of the Order of HHJ Eady QC dated and sealed 13^th January 2017 …

2. an application for the transcript of the hearing on 13^th January 2017.

3. an application for an adjournment of the hearings listed for 1^st February 2017 and for a stay of the proceedings before the Employment Appeal Tribunal, and the East London Employment Tribunal pending:

i. a decision of the Court of Appeal in Appeal No. A2/2016/2804 and;

ii. a decision of the Court of Appeal in respect of the application I will be lodging with the Court of [Appeal] on Friday 20^th January 2016 seeking permission to appeal against paragraphs 1 and 2 of the Order of HHJ Eady QC dated and sealed on 13^th January 2017.”

 

5.                  The Respondent was given the opportunity to respond to those applications, which it did by letter of 24 January 2017.  Given the limited time then available, I directed that the applications would be considered at the outset of the Full Hearing of the appeals; albeit that in the interim I have directed that arrangements should be put in place for the production of a transcript of the 13 January Judgment.  I again made clear that the parties should attend prepared to deal with those applications as well as proceed with the hearing of the appeals if the application to adjourn was unsuccessful and reminded all concerned that the existing directions otherwise remained in place; see the message emailed out by the EAT at 13.33 on 24 January 2017.  The Claimant has today confirmed that she wishes to proceed with her applications for review, adjournments and stay and relies on the submissions set out in her earlier correspondence which her father has also reinforced by way of oral submission.

 

The Review Application

6.                  At the Rule 3(10) Hearing in respect of the appeal in UKEAT/0189/16/DA, the Claimant had pursued, amongst other grounds of appeal, a fresh evidence challenge relying on documentation she had then recently obtained relating to a HMRC investigation which had, relevantly, looked into the Respondent’s officers’ personal use of company vehicles; an investigation that seemed to have taken place in the winter of 2014 and early spring 2015.  The documents appeared to show that other officers of the Respondent were continuing to make personal use of their work vehicles after December 2012, apparently contrary to what the Jones ET had found in respect of a specific allegation (allegation 11) pursued as part of the Claimant’s sex discrimination claim (see the Jones ET Judgment at paragraphs 240 to 248).  I had been persuaded that this gave rise to a reasonably arguable point of challenge as it seemed that the material I had been shown might impact at least upon the ET’s decisions on sex discrimination; I thus gave leave for this point to proceed to a Full Hearing along with two separate points taken on the two other appeals.  Specifically I ordered:

“The Appellant’s applications pursuant to Rule 3(10) are allowed in part: in respect of a new evidence point going to Allegation 11 before the Jones ET …; in respect of the striking out of the Appellant’s post-termination victimisation claim relating to the “character references”/ witness statements [in the second appeal] …; and as to the adequacy of reasons complaint in respect of the deposit orders challenged [in the third appeal] … All other grounds of appeal were dismissed.”

 

7.                  After the hearing on 13 June 2016, by a document received by the EAT on 22 June 2016 the Claimant applied for a review of my decision in that regard.  She contended that the new evidence should be considered as having a wider potential import than my Judgment might have allowed, arguing that it demonstrated fraud on the part of the Respondent such as to undermine the entirety of the ET’s Liability Judgment, not simply - as my Order suggested - its conclusion on allegation 11.  In the light of the Claimant’s application I directed that this issue be reviewed at an all-parties hearing which would, I hoped, enable clarity to be given as to the extent of the appeal I had allowed to proceed.

 

8.                  The Claimant also sought to appeal to the Court of Appeal against my original Order, on a similar basis to her review application (see appeal A2/2016/2804).  Permission was given for the appeal to proceed by Lord Justice Elias, who had not at that stage (due to an administrative error) seen my Order directing that there be all-parties Review Hearing.  When that additional information was brought to the attention of Elias LJ, he directed that the appeal in the Court of Appeal be stayed pending the determination of the review application before the EAT.

 

9.                  The Review Hearing took place before me on 13 January 2017.  In advance of that hearing however, the Claimant had lodged a number of additional documents - further fresh evidence, on which she also sought to rely.  The EAT Registrar, apparently understanding that this further documentation was relied on in relation to the existing ground of appeal, had directed that the Claimant’s application in that regard (made by letter of 19 November 2016) should be addressed by me at the Review Hearing.  I therefore heard from the parties on that point at the outset of the hearing.

 

10.              In addressing me on that further material, however, Mr Philcox clarified that this did not go to the existing ground of appeal but was, rather, fresh evidence that would go to new potential challenges, and, as such, he accepted it was to be treated as an application - albeit made out of time - for me to reconsider or review my earlier Judgment of 13 June 2016, specifically to the extent that I had limited the appeal to one fresh evidence ground and dismissed all other grounds of appeal.

 

11.              For the reasons I gave in my Judgment on that application I refused to review my earlier decision so as to permit the Claimant to pursue yet further ‘fresh evidence’ grounds of appeal.  On the Claimant’s own case she had not made her application within time or even at the earliest opportunity once she had the documents in question in her possession and I was unable to see why the points the Claimant sought to make (going to the Respondent’s credit in general terms) could not have been raised at the hearing before November 2016, still less why an application for reconsideration could not have been made to the Jones ET or for review any earlier to the EAT.  I also noted the Jones ET’s previous rejection of the Claimant’s fresh evidence reconsideration challenge made on a similar basis, against which there had been no appeal.

 

12.              I then turned to the Claimant’s original application for me to review my earlier Order on her Rule 3(10) applications, specifically as to the potential scope of the point that had been permitted to proceed to a Full Hearing.  Again I heard full submissions from both parties, during which the Respondent made the point that it was wrong to think that the issue regarding the Claimant’s continued private use of her company vehicle after the Respondent’s instruction not to do so had led to any disciplinary process against her, still less that it was relied on in the Respondent’s decision to dismiss.  The Jones ET had found that the disciplinary issues that had led the Respondent to dismiss the Claimant were those set out in paragraphs 133 and 159 to 167 of its Judgment, which did not include the Claimant’s continued private use of her company vehicle.  There was no appeal against the ET’s conclusion on the reason for the dismissal and the fresh evidence could not go to the unfair dismissal claim even if it had any relevance to the sex discrimination claim more broadly.

 

13.              In her reply, the Claimant accepted that this issue of her continued private use of the company vehicle had not been the subject of any disciplinary proceedings against her and was not a matter relied on in the Respondent’s decision to dismiss.  Given the Claimant’s acceptance of that position, I was unable to see that the fresh evidence in the form of the HMRC documentation could go to the ET’s finding on unfair dismissal.  Taking the Claimant’s point on the potential relevance of the material in terms of credibility on the other allegations of sex discrimination, however, I was prepared to allow that the fresh evidence point of appeal might have broader application and thus that I should review my earlier Order to reflect that. 

 

14.              The Claimant now asks that I review those decisions.  The basis of the review application in respect of the further fresh evidence is that the Claimant’s application to rely on this material “involved no new grounds of appeal - Ground 5 of the appeal against the [judgment] of the Jones ET was that that judgment had been obtained by fraud”.  She further objects to my refusal to extend time for her application, given that she contended that her delay had largely been due to the Respondent’s failure to respond to her correspondence, and she also considers that I was wrong to take the view that she should first have applied to the Jones ET. 

 

15.              The first of these points reflects an apparent misunderstanding by the Claimant as to the nature of my Judgment and Order on her Rule 3(10) applications.  I had permitted a new ground of appeal to proceed which relied on fresh evidence that - I was told - had only come into the Claimant’s possession fairly shortly before the hearing of those Rule 3(10) applications.  I was persuaded that this particular material raised a reasonably arguable question as to the findings of the Jones ET, specifically on allegation 11 relating to how the Claimant was treated in respect of her continued private use of her company vehicle after the Respondent had instructed its enforcement officers that this should cease.  I otherwise dismissed all of the grounds of appeal including ground 5.  Indeed, reflecting that I was permitting the appeal to proceed on a basis not set out in the existing ground of appeal, I directed that the Claimant was to lodge amended grounds of appeal - which she did, dated 12 July 2016, at page 56 of the hearing bundle.  Ground 1 of the amended grounds is the sole basis on which I permitted appeal UKEAT/0189/16/DA to proceed, it is now to be read alongside my clarification of its scope as set out at paragraph 2 of my Order of 13 January 2017.

 

16.              The Claimant, through her father, clarified that the new further fresh evidence on which the Claimant had applied to adduce did not go to that sole ground of appeal.  It was not, for example, further material relating to the HMRC investigation into the private use of company vehicles within the Respondent.  It was relied on to pursue broader allegations of fraudulent conduct on the part of the Respondent, which the Claimant had sought to pursue in her original grounds of appeal, but which I had rejected at the Rule 3(10) Hearing and had thus been dismissed.  It was for that reason that, as I explained at the hearing on 13 January 2017, I treated the application to be one made out of time for me to review my Order from the Rule 3(10) applications Hearing, that Order dismissing all other grounds of appeal including the ground 5 that the Claimant now seeks to resurrect on this current review application.  The point now being made thus has no merit.  The Claimant was applying to rely on new fresh evidence that, as she expressly accepted, did not go to the existing ground of appeal but on her case, disputed by the Respondent, had relevance to another ground of appeal that I had previously dismissed.  The only way of making sense of her application - which would otherwise simply be an impermissible attempt to reopen the Rule 3(10) Hearing - was to treat it as an application for a review made out of time.

 

17.              As to the objection that I was wrong not to extend time for the Claimant’s application, given that her delay had largely been due to the Respondent’s failure to respond to her correspondence, this is simply rearguing the point previously made and rejected on 13 January 2017.  I took into account that the Claimant had written to the Respondent, raising the points regarding what she alleged to be its fraudulent behaviour, and asking for its response.  I was also aware that the Respondent was seeking to avoid continuing a dialogue with the Claimant on these matters which it, not unreasonably, considered irrelevant to the issues raised by the appeal.  In any event, the fact was that it was the Claimant who was saying that this material raised fresh evidence that warranted reopening her case before the ET.  The obligation was therefore on her to raise it at the earliest opportunity.  Having explored the detail of the chronology with the Claimant at the hearing, I found that she had failed to do so.

 

18.              I also note the Claimant’s objection to that part of my reasoning that suggested that the appropriate course would have been for her to have first applied to the Jones ET for reconsideration.  Again, the Claimant repeats the point she previously made in this regard and further makes the observation that matters were already before the EAT; the suggestion being that she was therefore entitled to treat this as her first port of call.  I disagree with that submission.  I permitted the HMRC fresh evidence to be raised for the first time at the Rule 3(10) Hearing because I understood it had then only recently come into the Claimant’s possession and this had post-dated the application she had already made to the Jones ET for reconsideration; it was proportionate to permit the point to be raised at that stage without first requiring the Claimant to return to the ET.  That did not, however, give the Claimant a right to ignore what would be the normal procedural course in respect of any further fresh evidence.  Although not the main point for my refusal of her application, I considered it appropriate to remind the Claimant that the starting point should be to apply to the ET for reconsideration; it, after all, is generally best placed to determine what, if any, impact the evidence in question might have had on its deliberations.

 

19.              For those reasons I am unable to see that the application provides any proper basis for me to review my earlier decision on the further fresh evidence and I duly decline to do so.

 

20.              I turn then to the application that I review my decision to review my earlier Order to allow that the appeal on the sole ground permitted to proceed might impact more generally on the Claimant’s sex discrimination claims but not on the unfair dismissal claim.  The Claimant submits that by so limiting the possible effect of the appeal I was suggesting that “it is possible, to have a “limited fraud on a court” or “a small fraud on a court””.  She further observes that, in granting permission to appeal from my Order on the Rule 3(10) applications, Lord Justice Elias previously stated:

“I think it is arguable that by allowing the ground of appeal in respect of vehicle use to be advanced in the light of the new documents, it is possible that the EAT, if it were to find in the employee’s favour, might consider that its conclusion could impact upon the Tribunal’s findings on credibility and hence on its legal conclusion with respect to the unfair dismissal claim.  If that were so, it is plainly arguable that the EAT ought to be in a position to provide a remedy with respect to any ruling of the ET which it considers might be unsafe in the light of its conclusions.

The employer might think it is sensible to agree to an appeal on the basis that the full court is likely to say that the EAT must be able to grant whatever relief arises out of its analysis of the appeal.”

 

21.              In allowing the Claimant’s review application I accepted the argument that if the Respondent had misled the ET in respect of allegation 11 - allowing the ET to think it was only the Claimant who had failed to follow the instruction to cease private use of the company vehicle - it was reasonably arguable that this might go to its credit more generally, potentially impacting upon other allegations raised as part of the sex discrimination claim.  I did not go through each of those allegations - it would not have been proportionate to do so - but erred in the Claimant’s favour that the point might impact upon the ET’s finding on the Respondent’s credibility more generally in such a way as to be relevant to those other conclusions.

 

22.              I concluded, however, that the point did not arise in the same way for the unfair dismissal case.  As the Claimant accepts in making her current application:

“2.6. The Appellant accepts that the private use of her vehicle never formed the basis of the disciplinary action taken against her, although it is central to her allegation of sex discrimination.  She further accepts that the alleged systematic frauds perpetrated over many years by the Respondent against the judgement debtors by means of the Karl Harrison Removal Game and its later variation, did not form the basis of the disciplinary action taken against her.”

 

23.              There was no dispute but that the matters that formed the basis of the Respondent’s reason for the Claimant’s dismissal were those as found by the ET at paragraphs 133 and 159 to 167 and there is no extant appeal against those findings.  If the ET had been misled by the Respondent as to others’ private use of company vehicles the Claimant was unable to suggest how this would impact upon its reason for dismissing her - something that was not in issue - or the fairness of that dismissal.  All that said, it seems to me that ultimately the best way to test this point is to determine the actual point of appeal.  By doing so, it will be possible to see whether the Claimant raises any real point let alone, as she contends, whether one that goes to the Respondent’s credit more broadly than just allegation 11.  I therefore postpone this application for further review until after I have determined the actual ground of appeal, so I can consider it in context.

 

The Adjournment and Stay Application

24.              Before I consider the merits of the arguments on the appeals, however, the Claimant asks that her appeals before the EAT are stayed and this hearing adjourned pending a hearing of her appeal to the Court of Appeal in respect of my Judgment on her Rule 3(10) application in UKEAT/0189/16/DA, which I understand is due to take place on 27 June 2017.  The Claimant has further lodged another application to appeal to the Court of Appeal, against my Order of 13 January 2017, essentially making the points set out above in respect of the review application.

 

25.              The Claimant’s appeals to the Court of Appeal can - as her application implicitly recognises - only go to the first of the appeals before me (UKEAT/0189/16/DA); they raise no challenge relevant to the appeals against the Prichard ET decisions.  Notwithstanding that, however, the Claimant says that as these appeals involve the same parties and the same lawyers are acting for the Respondent it is proportionate that they also be stayed, which would avoid wasted costs.  I am unable to agree.  The points raised by the second and third appeals raise different issues against different ET decisions.  Although the parties are the same and the Respondent is using the same lawyers, costs have already been incurred as the Respondent had, prior to the Claimant’s application, already lodged its skeleton arguments for all three appeals (as it was required to do).  To stay those appeals at such a late stage would give rise to wasted costs; it would not serve to avoid them.  Moreover it would build in wholly unnecessary delay.  Even if the Claimant’s Court of Appeal appeals against my Orders in the first appeal were heard and determined on 27 June 2017, the second and third appeals would then have to be re-listed before the EAT leading to a substantial delay when there is simply no reason why, even on the Claimant’s own case, they cannot be determined today.  I therefore refuse the application in respect of the second and third appeals.

 

26.              As for the appeal on the further fresh evidence point, this has presently gone no further than the Claimant’s lodgement of an application for permission to appeal and, in any event, the new fresh evidence does not, on the Claimant’s own case, go to the point of appeal that I am considering today. 

 

27.              As for the otherwise more general application for a stay in respect of the first appeal I am again unable to see this would be in the interests of justice.  As I have already indicated, it seems to me to be the best of testing the Claimant’s submissions on the potential scope of her ground of appeal in this regard is to actually determine the merit of that ground of appeal; the issue can then be seen in context, not in the current vacuum.

 

28.              For all those reasons, there is no proper basis for me to stay the current appeal and adjourn this hearing; to do so would only substantially delay the determination of these matters, which - if the Claimant is successful - would inevitably lead to a further hearing before the ET.  It would further give rise to wasted costs.  I am satisfied that the interests of justice dictate that I refuse the application for a stay and an adjournment of today’s hearing.

 

The Summary Background Facts and the ET’s Conclusions and Reasoning

29.              Between January 2012 and March 2014 the Claimant was employed by the Respondent as a High Court Enforcement Officer.  She had been recruited as an experienced bailiff and worked to a manager “P”.  The Respondent is a firm of High Court Enforcement Officers for England and Wales.

 

30.              On 11 March 2014 the Claimant was dismissed for gross misconduct.  By ET proceedings commenced on 25 June 2014 she complained that her dismissal was unfair, made various allegations of sex discrimination - some 40 allegations in total - and pursued a complaint of unauthorised deduction of wages.

 

31.              There were two Preliminary Hearings and various interlocutory issues arose before the Full Merits Hearing.  Some of the case management issues continued into that hearing, and I mention them as necessary for the purposes of these appeals.  One such issue concerns statements that had previously been adduced by the Respondent that were supportive of P and said to cast aspersions on the Claimant.  These were characterised by Employment Judge Warren, on 23 February 2015, at an earlier Preliminary Hearing in the proceedings, as “character references” for P rather than witness statements as such.  As he was unable to see the relevance of the documents, EJ Warren determined they should not be included in the trial bundle.  Addressing the Claimant’s submission that they amounted to discrimination themselves, EJ Warren took the view that they could only found a claim of post-dismissal victimisation and there was no such claim in the case he was considering.

 

32.              Before the Jones ET the Claimant applied for those statements to be admitted.  It was her contention that P had referred to the statements in his own witness statement which meant that they were now part of the case; if the ET read them it would be obvious they were false and the only conclusion it could reach was that P or the Respondent had conspired with the signatories and/or got them to write the statements.  The Jones ET did not agree that was the inevitable conclusion.  In any event it would form its own view of the credibility of the witnesses before it and if that was the only relevance of the statements it would not consider they should be admitted (see paragraphs 5 to 8 of its Reasons).

 

33.              Returning to the substantive claims before the Jones ET, the Claimant had made various allegations of matters that she said were acts of sex discrimination during her employment.  Specifically, she made allegations against P and further suggested that she had been instructed to engage in irregular practices in the conduct of her duties as an Enforcement Officer intended to generate additional fees.

 

34.              The Jones ET recorded that at the time of her employment the Claimant was the only female High Court Enforcement Officer employed by the Respondent; although it had previously employed other women in that role.  It noted that the Respondent worked under licence and the ET considered it was unlikely to act in a way that would jeopardise its business: the industry in which the Respondent and its officers operated was small and anything effecting its reputation would impact upon its business; Enforcement Officers themselves were governed by a code of conduct which included a prohibition against acting in a discriminatory way, as well as requiring officers to comply with relevant statutory obligations including tax requirements.  The ET expressly found that P had not instructed the Claimant to work in anything other than a legitimate way and it did not accept that he gave her particular instructions or restricted her work on the basis that she was a woman.  The Claimant had also made allegations about comments she said had been made to her by P and others, some of which were said to be of a sexually explicit nature and/or constituted bullying and harassment.  The ET rejected all such allegations.

 

35.              Separately, the Claimant pursued an allegation (allegation 11) that she had been treated less favourably because of sex in the following respect:

“November 2012 …

11. Phone call accusing of stealing diesel.  Told she should not be using works van at the weekend.  Male comparators (Pike and Anderson) were allowed to use the works van for private use before and after November 2012.  C tried to raise the issue again but told “that’s all in the past”.”

 

36.              The Jones ET’s findings of fact relevant to that allegation, which seems to have developed in the course of the proceedings, are set out in its Reasons, as follows:

“60. We find from Russ Holden’s evidence that when he employed the Claimant, personal use of the company van was permitted as long as any petrol used was paid for.  He was aware that there were a number of officers who used their company vehicles on a weekend.  Steve Griffiths used his vehicle to travel to Wales where his family was based.  Barry Stewart used his vehicle to travel to Warrington on weekends where his family was based.  Mr Holden confirmed that his spoke to Jim Walker who then spoke to Andrew Roe, one of the Respondent’s partners who confirmed that he was happy for people to use the vehicle on weekends for personal use as long as they paid for fuel used.

61. We find that the Claimant never submitted her fuel receipts to anyone.  We find that in January 2012 the Respondent produced a document entitled “Agreement for Provision of Company Vehicles” paragraph 5 stated as follows:

“Where a company vehicle is provided to an employee, it is provided on the basis that it is used for purposes of the business with private use restricted to travel to and from work with any other private use incidental.”

The Claimant signed that document on 4 January 2012.  She signed another copy of that document later on 26 June 2012.  The Claimant was informed on 4 July 2012 that she had completed her six month probationary period and that she was now a permanent member of staff.

62. On 24 December 2012 Jim Walker sent an email to all Enforcement Officers as follows:

“The private use of company vans is restricted to incidental use only.  In the event that a company van is used outside its parameter the vans will need to be declared on a P11D as a benefit in kind of up to £3,550 per annum.  For 40% of tax payers this will equate to an additional income tax that you will have to pay of £1,420pa and for 20% tax payers this is £710pa.

In addition to this I will expect any individuals using the vehicle excessively to reimburse the company for all the private fuel used.”

63. This email was prompted partly by the Respondent’s awareness that the Claimant used the van everyday to travel to stables near to her home where she kept a horse.  She would do this every morning before she started work and at the end of her working day.  Her use of the van for personal use could therefore not be considered to be ‘incidental’.  Mr Griffiths’ evidence to us was that once he received this email he stopped using the van to travel to Wales.  The Claimant however, continued to use the van as before.

64. On 4 February 2013, Sarah Roscoe, Director, sent the Claimant the following email.  This email was only sent to the Claimant:

“Further to Jim’s email last year, we know that you have continued to use your company vehicle for personal use on a daily basis.

There are two options going forward:

If you continue to use it for personal use the van will be disclosed as a benefit in kind on you P11D and you will be taxed accordingly.  In addition to this, we will require you to reimburse us for fuel that you have used for private mileage.

Personal ceases with immediate effect.”

The Claimant did not stop using the van for personal use despite these emails.  She continued to use it everyday as set out above.

65. The Respondent knew this because there is a tracker fitter in every company vehicle.  The Respondent is able to track the movements of every vehicle in its fleet.  The tracker printouts which we had in the bundle of documents shows that it was able to record the time the ignition is turned on and turned off in every vehicle.  It also tracks exactly where the vehicle is at every moment.  The Respondent therefore was well aware of the Claimant’s usage of the vehicle at all times.

66. Although ‘incidental use’ was not defined, we find that the email sent to the Claimant on 4 February 2013 should have made it clear to her that her personal use of the vehicle to go to the stables every day, twice a day, was no longer permitted.  Ms Roscoe’s email is quite clear that personal use should cease with immediate effect.

67. We find that when the Claimant had a discussion with P about her personal use of the van he said to her that she needed to provide receipts to the Respondent to show that she had paid for the diesel in the van.  However, the Claimant never submitted receipts for petrol to the appropriate person who would have been Jim Walker as the Finance manager.”

 

37.              The Jones ET’s conclusions relevant to allegation 11 are then set out as follows:

“240. In our judgment, when the Claimant was first employed personal use of [the] company van was permitted, as long as any petrol used was paid for.  Russ Holden confirmed this in his evidence.  He spoke to Jim Walker who then spoke to Andrew Roe who confirmed that he was happy for people to use the vehicles on weekends for personal use as long as they pay for fuel.

241. However, although the Claimant used the company vehicle everyday for personal matters, she never submitted her petrol receipts to anyone within the Respondent.  She should not have waited to be asked to do so.  Whether or not P informed her that he was not the appropriate person to whom the receipts should be given, in our judgment that she was never told that the Respondent did not require her receipts.  It was likely that she was advised to submit them and failed to do so.

242. The Respondent is entitled to review its policies and procedures at any time as long as employees are given sufficient notice so that they can adapt their behaviour accordingly.  The email from the Respondent on 24 December 2012 was a clear notification from the Respondent to staff that the use of the company vehicle was for incidental use only.  That had already been stated on the vehicle agreement document that the Claimant signed in January 2012.  The Claimant ignored the emails from the Respondent and continued to use her company van twice a day, every day, to go to the stables.  In our judgment, even though the term is undefined in the agreement, such every day usage is unlikely to be considered as ‘incidental’.

243. In our judgment, the Claimant’s colleagues took notice of this email and adapted their conduct.  Ken Griffiths stopped using his vehicle to travel to his family in Wales.  However the Claimant did not do so and the Respondent sent her a second email on 4 February giving her to choices.  The Claimant chose neither option and did not respond to the Respondent.  She did not stop using it for her personal use.  She did not provide proof of fuel purchased and she did not agree to the Respondent disclosing the van as a benefit to HMRC so that she could be appropriately taxed.

244. P denied ever accusing the Claimant of stealing diesel and it is our judgment that it was unlikely that he ever did so.  It is likely that they had a conversation about her personal use of the van and he informed her that she should be producing receipts to show that she was purchasing fuel for her personal use of the van.

245. The Claimant refused to accept the policy change and continued to refer to the situation as it was when she was first appointed.  She also did this at the Hearing.

246. It is our judgment that the Respondent changed their policy and that this did not only apply to the Claimant.  The other bailiffs who gave evidence confirmed that they also received the email.  It became necessary to send further emails to the Claimant thereafter as she did not change her usage and continued as before and not because she was a woman.

247. In our judgment the Claimant has failed to prove facts from which the Tribunal could infer that the Claimant was treated differently on the grounds of her gender in relation to allegation 11.  If she had been a man who continued to use the van in the way she did, it is likely that the Respondent would also have taken up the matter as a disciplinary matter with him.

248. In our judgment this allegation fails and is dismissed.”

 

38.              There were other allegations concerning the Claimant’s failure to attend a work Christmas function, work allocation, the collection of her van for repairs when she was off sick, the treatment of her request for additional leave, a failure to pay bonus and various other matters, none of which the ET found gave rise to any basis for inferring sex discrimination.

 

39.              Turning to the unfair dismissal claim, the ET found the reason for the Claimant’s dismissal was her gross misconduct.  It rejected her assertion that it was because she failed to show P the respect and deference he believed he deserved.  The allegations found against the Claimant by Ms Roscoe, a Director of the Respondent who made the decision to dismiss, are explained by the Jones ET as follows:

“159. The allegations which had been found to be proved were firstly, the Claimant’s inflexibility regarding the performance of her contract of employment.  Included in this charge was, her refusal to work in London, her refusal to work in Norwich, her refusal to work additional hours outside her contract of employment, her decision to unilaterally take a week off work giving no notice during the week commencing 25 November and her start and finish times during the week commencing 9 January 2014.

160. Within the dismissal letter Ms Roscoe confirmed that although the charge was a refusal to work additional hours, what the Claimant was disciplined and dismissed for was not even working her contractual hours.  She referred to two examples from the tracker report showing that the Claimant working between 8.30am and 3.30pm or 4.30pm on a regular basis.  The charge which was referred to as taking a week off unilaterally was really about the Claimant’s decision to inform Karl Harrison of her absence rather than her line manager; which Ms Roscoe found to be an unacceptable approach.

161. The second charge that was found to be proved was that the Claimant had demonstrated a repeated and/or serious failure to obey instructions.  The particulars of that charge were the Claimant’s failure to follows P’s instruction that she should not discuss the non payment of a bonus with the Directors of the company; that she failed to print off the writs which had been sent to her on 9 January and instead alleged that she could not print those off and finished working that day at 1pm.

162. The third charge that was found to be proven was that she displayed insubordination towards P and undermined his position as her manager.  Ms Roscoe found that the Claimant refused to communicate with him on a number of occasions via email and telephone.  Also, that she contacted Bev Pawsey to try and book a day off without P’s knowledge or authorisation.  Although the letter said that this happened in October we find that this was incorrect and it happened in August.”

 

40.              The ET was satisfied the Respondent had a genuine belief in the Claimant’s misconduct and reasonable grounds for that belief.  It had been entitled to find she was refusing to work in London, which amounted to misconduct being a refusal to comply with a reasonable management instruction.  Similarly the Respondent had been entitled to conclude that the Claimant was no longer working the hours required and again to find that was misconduct.  More specifically the Respondent had been entitled to conclude that the Claimant’s failure to carry out specific tasks as required by her manager amounted to gross misconduct, as was her attempt to bypass P by speaking to a Director about her bonus and not returning calls.

 

41.              The ET went through the process followed by the Respondent in detail, finding it was fair.  It further found that it was within the range of reasonable responses to dismiss the Claimant.  As for the unauthorised deductions relating to bonus and expense claims, the ET heard no evidence on those claims and considered they had been abandoned by the Claimant; there was no evidence to support them and they were dismissed.

 

42.              I now turn to the ET decisions that are the subject of the second and third appeals; both decisions of the Prichard ET made after a hearing on 24 August 2015.  That hearing was, relevantly, concerned with the Claimant’s complaints of post-termination victimisation which, in part, was said to arise from the Respondent’s character or witness statements (see the reference to EJ Warren’s decision in this regard, summarised above).  In respect of the statements, the Prichard ET took the view that they might have had relevance to the Claimant’s claims: they largely comprised statements from women saying that P never said or did inappropriate things in his dealings with them or, so far as they were concerned, other women; that might have been potentially probative in respect of the sexual harassment claim.  The statements also included some comments about the Claimant potentially going to her credit - the Respondent was saying the sexual harassment claim was a fabrication.  Although the statements did not include statements of truth at the end, that was not a procedural requirement.  The ET had ruled that the statements should not be admitted and they had not been read but, that notwithstanding, the Prichard ET considered the guidance laid down in the case of Parmar v East Leicester Medical Practice [2011] IRLR 641 EAT applied; the statements were covered by litigation immunity: they had been complied in the proceedings and were relevant evidence, even if not allowed to be used in those proceedings.

 

43.              The Prichard ET then went on to consider the other claims pursued by the Claimant - the subject of the third appeal - in which she made allegations of blacklisting and surveillance.  The Claimant contended there was a blacklist maintained by the Civil Enforcement Association (“CIVEA”), a trade association of companies such as the Respondent.  The Respondent had accepted in correspondence that CIVEA operated a circulation system for when any of their members had dismissed an employee for misconduct, et cetera.  Accepting that such a system existed, the Prichard ET noted that there was no evidence that the Claimant had ever been made the subject of such a reference; she could make a subject access request to see if she had been, but if not she would then be well advised to withdraw the claim.  As for the surveillance complaint, this related to the Respondent’s attempt to investigate the true state of the Claimant’s health: she had declined to attend her appeal hearing because she said she could not travel but the Respondent understood that she was driving normally in her local area and had sought to have her movements monitored to see what the true position was.  This had evidently been done rather clumsily (and seeing the Claimant moving around locally told the Respondent little about her ability to travel to Manchester where the appeal hearing was taking place); it was the subject of a further complaint of post-termination victimisation by the Claimant.

 

44.              The Prichard ET considered however that:

“24. The respondent’s reasons for undertaking any surveillance of the claimant is likely to be found to be that the claimant was using stalling tactics to delay her termination. …”

 

It found both the surveillance and the blacklisting claims had little reasonable prospect of success.  In relation to blacklisting, the Claimant had no basis for establishing she had suffered the detriment of which she complained; in any event, if it had occurred, that “would be because it was something CIVEA members do when they have concerns about employees”.  Finding neither complaint appeared likely to be the result of any protected act related to sex in any way, the Prichard ET considered it appropriate to make Deposit Orders in respect of these matters; it rejected the Respondent’s application that they be struck out.

 

 

 

The First Appeal

The Parties’ Submissions

The Claimant’s Case

45.              The Claimant challenges the ET’s finding on allegation 11 (see in particular paragraph 240 to 248 of the Jones ET’s Reasons, set out above) regarding her conduct in respect of personal use of her work vehicle.  She seeks to rely on fresh evidence in the form of HMRC documentation about an investigation (in the winter of 2014 and early spring 2015) into the Respondent’s officers’ personal use of company vehicles.  Although directly focused on the ET’s finding on allegation 11, the Claimant contends this documentation gives rise to a wider question of credibility infecting the entirety of the case; she says the Respondent was plainly guilty of a fraud in how it presented its case before the ET and that tainted the entire Judgment.

 

46.              In making that submission the Claimant submits that the new evidence - the HMRC documentation - enabled her to satisfy the three principles on which a Judgment must be set aside when it was obtained by a party’s fraud (see RBS plc v Highland Financial Partners [2013] EWCA Civ 328 per Lord Justice Aikens at paragraph 106). 

 

47.              First, there had been “conscious and deliberate dishonesty”: the Respondent had lied in saying private use of company vehicles had ceased; the fresh evidence showed that was not true.  In this regard she sought to also rely on the witness statement of Mr Adrian Warlow (at page 228 of the EAT bundle, at paragraphs 11 onwards) - albeit that was not evidence before the original Jones ET but a statement he had made for the purpose of his own, ultimately unsuccessful, ET claim against the Respondent - in which he confirmed that he continued to use the Respondent’s vehicles for private purposes. 

48.              Second, the evidence was material: the dishonesty was causative of the impugned Judgment being obtained in the terms that it was.  By concealing the HMRC documentation the Respondent had caused the Jones ET to reach the conclusions stated at paragraph 243; i.e. that other officers employed by the Respondent had modified their behaviour whilst the Claimant had not.  It was also material to the ET’s view of the Respondent’s credibility more generally; specifically, its finding that the Respondent had not engaged in irregular practices (paragraph 33 of the Jones ET’s Reasons). 

 

49.              Thirdly, the materiality of the documentation was to be referenced to its impact on the evidence supporting the original decision and here the case largely boiled down to a matter of credibility.  Wherever there was a conflict of evidence, the Jones ET unfailingly accepted the evidence of the Respondent’s witnesses and not the Claimant.  Had the Claimant had the HMRC documentation she could have proven the difference of treatment between herself and other colleagues who had also continued to make private use of their company vehicles, and that underpinned the whole sex discrimination claim.

 

50.              The Claimant also made a more general point, that the Respondent had given different accounts to the ET and to HMRC; albeit she accepts that it cannot be for the EAT to make findings on the truth or otherwise of what the Respondent told HMRC, but instead must focus on what was said to the ET.  The crucial point, the Claimant submitted, was that the Jones ET was told that all private use of company vehicles stopped in 2013 but in fact it did not, and the HMRC documentation demonstrated that.  Indeed, the HMRC made a tax charge against the Respondent for the entirely of the relevant period going back to 2011/2012 and continuing into the 2014/2015 tax year (see the HMRC letter of 9 June 2015). 

51.              That was the essential dishonesty before the Jones ET and the whole raft of findings by the Jones ET flowed from it.  Had the Jones ET seen that documentation it would not, and could not, have made the findings it made. 

 

The Respondent’s Case

52.              For the Respondent it is observed that the question raised by the first appeal was really whether the HMRC evidence relied on by the Claimant met the second of the criteria laid down in Ladd v Marshall [1954] 1 WLR 1489: was the evidence relevant to the Jones ET’s determination and would it have had an important influence on the hearing?

 

53.              The HMRC evidence in question showed the following (reading from the Respondent’s skeleton argument):

“(a) There was an HMRC check of the Respondent beginning in October 2014 to ensure they were meeting their PAYE responsibilities …;

(b) HMRC agreed that the Respondent could provide a sample month of July 2014 to show the personal use of the company vehicles by their officers;

(c) On 8^th April 2015 the Respondent reported to HMRC that it had undertaken “a full analysis of van travel for the month of July 2014.  This review took the equivalent of 11 man days of time to cross-check each driver’s travel with the client log sheets” and “It is apparent from this sample that the percentage [of] private use is, in the most part, insignificant”…;

(d) On 9^th June 2015 the Respondent agreed to pay certain amounts of tax and NIC to HMRC as a result of the investigation.  The Respondent was not required to pay any penalty.  HMRC found that two of the fifteen officers in July 2014 had used their vehicles privately to a significant degree.  The Respondent disclosed an additional Officer, the Claimant, had also used her vehicle privately during her employment.”(Respondent’s skeleton argument, paragraph 4)

 

54.              None of the Jones ET’s findings were impugned by the HMRC documentation.  As for the ET’s finding on the Respondent’s adherence to its code of conduct (1) there was still no evidence that the Respondent failed to adhere to its code, but, in any event, (2) it would not be relevant to any of the material findings of the Jones ET.  Moreover, unless the new evidence was “overwhelming and points to only one conclusion” the EAT was not able to second guess the ET as to its materiality (paragraph 135 Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4 EAT, HHJ McMullen QC presiding). 

 

55.              In truth the HMRC evidence did not show that there was a continuing private use of company vehicles by other officers after the 24 December 2012 instruction that they were not to do so; all it showed was that two out of fifteen employees employed in 2014 used their vehicles for private use in any significant sense.  No inference could be drawn from that documentation as to use for 2012/2013 (the relevant period for the Jones ET): other than the Claimant, only two out of fifteen officers were making significant use of the company vehicles in July 2014 and there was no evidence of significant use before that.  Moreover, one of those officers (Officer 15) was in his last six weeks of employment before retirement and the other significant user (Officer 14, Mr Warlow) was dismissed shortly after this.  While HMRC applied a tax charge against the Respondent going back to 2011/2012 and continuing to 2014/2015, on the basis of the material available, this could simply have related to the Claimant’s case (she was using her vehicle in 2012 and onwards).  Indeed instructions taken during the hearing suggested that was the case.  In any event, the Jones ET had found that prior to the end of 2012 the position was confused as to whether officers could use their vehicles or not; it might well be that some people had been using their vehicles for private use at that stage, which might have also fed into the tax assessment.

 

56.              Not only did the HMRC documentation not help on the issue of continued use, but more than that, it did not assist on the state of the Respondent’s knowledge.  All officers were sent the 24 December email and the ET heard evidence that other officers changed their behaviour thereafter.  There was no evidence before the Jones ET about any comparator’s use of vehicles or about anyone else who had received the email.  The Claimant’s private use would have been easier to spot than that of others because she continued to use the vehicle every day, twice a day, on a regular pattern.  That explained why the matter had been raised with her in February 2013.  The Respondent had not, however, raised a P11D for her after that, which evidenced that it did not know of her continued private use.  The fact was the information was not readily accessible; as the HMRC documentation showed, it took the Respondent eleven man-days to compile the information for the audit.  It would have had to compare the tracker information alongside reports compiled by the officers (albeit it might have been easier to do so in the Claimant’s case).  The fresh evidence did not establish that the Respondent had knowingly treated the Claimant differently by raising the issue with her in 2013, and not with others.

 

57.              More generally, the mere fact of the HMRC audit would not have been material for the Jones ET.  First, it showed only that the Respondent had the list of names by 8 April 2015.  Second, the Respondent had not given evidence that no officers continued to make private use of their company vehicles after January 2013 (and, although the Claimant had obtained a direction for the Employment Judge’s notes to try to make good her case in this respect, they did not show the Respondent making such a positive case before the ET and it was telling that the Claimant had not sought to rely on anything in the notes to suggest otherwise).

 

The Claimant in Reply

58.              The Respondent had been under a continuing obligation of disclosure (paragraph 34, McTear & Anor v Engelhard & Others [2016] EWCA Civ 487) but had failed to itself disclose the HMRC documentation.  The Respondent only acknowledged that private use of company vehicles had continued once it became apparent this material would come out in any event.  As for Mr Warlow, he had been dismissed for reasons unrelated to any private use of company vehicles.  And as for the Respondent’s assertion, made during the hearing, that the tax paid as a result of the investigation and relating back to the earlier years was only related to the Claimant’s use of the vehicle, the relevant part of the letter had been redacted and the Respondent should not be entitled to rely on that unsupported assertion.

 

Discussion and Conclusions on the First Appeal

59.              As I have already explained, I permitted the first appeal to proceed on one new ‘fresh evidence’ ground because it seemed that the documentation relating to a HMRC investigation in 2014/2015 (obtained by the Claimant shortly before the Rule 3(10) Hearing and then still in largely redacted format), might be material in terms of the ET’s finding on allegation 11.  If it was, then I also allowed for the possibility that it might be relevant more generally in terms of the ET’s approach to other allegations to the extent it might be relevant to credit; I was, however, unable to see how the Claimant’s case could suggest that the evidence might be material to the ET’s conclusion on the unfair dismissal claim.

 

60.              In allowing this ground of appeal to proceed to a Full Hearing I was accepting that the first and third requirements laid down in Ladd v Marshall [1954] 1 WLR 1489 had been met.  The issue seemed to me to be whether the material could be said to have had a potentially important influence on the hearing before the Jones ET; the second requirement for a fresh evidence appeal.  In permitting that point to proceed, I kept in mind that ultimately the ET would have been best placed to determine such an issue.  Here, however, the Claimant had told me she had only obtained this material after she had already unsuccessfully applied for a reconsideration on fresh evidence grounds and it appeared proportionate to permit her to raise the issue at the Rule 3(10) Hearing.  I accept, however, that it will only be where materiality is clear that the EAT should allow a fresh evidence appeal (see Korashi above).

 

61.              I now have a largely unredacted version of the most material documentation; in particular, the letter which lists the officers who were said to have continued to make private use of their company vehicles at the relevant time for the HMRC investigation period, which also provides some explanation as to what they did and why.  Being now able to see that evidence, it is apparent to me that it shows - as the Respondent has stated - that the most significant continued use disclosed to HMRC was that of the Claimant herself.  Otherwise, the only significant users were one officer who was coming up to retirement and another, Mr Warlow, who was dismissed (albeit for other reasons) shortly afterwards.

 

62.              The HMRC material also shows that the evidence of private use was, save in the Claimant’s case, not easy for the Respondent to obtain.  It had taken some time for the Respondent even to be able to provide the limited information required by HMRC and there is nothing in that material to suggest the Respondent had a continuing knowledge of officers making private use of their company vehicles after being instructed not to do so in December 2012.  The Claimant has today sought to rely on Mr Warlow’s statement in his own ET claim as to his personal use of his company vehicle but that is not the fresh evidence that I permitted to be relied on in this appeal and I note that the Jones ET had already rejected the earlier reconsideration application based on Mr Warlow’s testimony, finding it was not reliable.  I also bear in mind that the period covered by the HMRC investigation does not go back to the period the Jones ET was concerned with and there is nothing to found the Claimant’s suggestion that it evidences significant private use of company vehicles by a number of officers going back to 2011/2012 and continuing thereafter.  The fact there was a tax charge going back to 2011/2012 is explicable by the fact that the position was (as the Jones ET accepted), unclear at that early stage and that, thereafter, (and again on the Jones ET’s own findings) the Claimant was herself continuing to make private use of her company vehicle and there had been a failure to account for that for tax purposes (thus, on anybody’s case, giving rise to a tax liability).

 

63.              I ask myself whether the fresh evidence is thus clearly material to the Jones ET’s decision but conclude that it is not; the Claimant has simply not made out her case in this respect.  The material does not show that the Respondent was knowingly in breach of its obligations to HMRC: it was found liable to pay more tax after a standard audit and investigation, which had required the Respondent to spend some time scrutinising its records, and which had highlighted some, not particularly significant, discrepancies.  The material does not show the Respondent was deliberately concealing relevant documentation from the Jones ET - indeed, save in respect of the Claimant herself, the documentation relates to a period after that with which the claim was concerned - and it does not show the Respondent deliberately misled the Jones ET: although she has obtained the Employment Judge’s notes from the hearing, the Claimant has been unable to show that the Respondent put a positive case that no officers made any further private use of their company vehicles after December 2012.  The new material actually supports the Respondent’s case that it was not so easy for it to know what use was being made of company vehicles by its officers.  In turn, that leads to the rather more obvious point that the documentation simply does not show that the Claimant was treated differently, let alone less favourably: her private use of her company vehicle was different to others and more easily discoverable by the Respondent.  That explains - as the Jones ET accepted - why she was spoken to about it.  The Respondent did not continue to investigate her; had it done so no doubt she would have been taxed on the benefit she was enjoying.

 

64.              Whether seen as specific to allegation 11 (the obviously more relevant part of the underlying claim) or more generally, I am satisfied that the second requirement under Ladd v Marshall has not been made out.  I am satisfied that the Claimant has not been able to establish some kind of fraudulent conduct by the Respondent in its conduct of the case before the Jones ET and has not shown that the fresh evidence would materially impact upon the view formed of the parties’ credibility.  In that wider regard I note that the Jones ET had considerable other evidence before it and, at a lengthy Full Hearing, heard from a number of witnesses and formed its own view as to the credibility of their testimony tested under cross-examination.  There is simply no basis for thinking that the HMRC material - which does not make good the points the Claimant suggests - would have assisted the Claimant in any respect.

 

65.              That is the case in respect of the sex discrimination case and would also be true in respect of the unfair dismissal case.  I am, therefore, bound to dismiss this appeal.

 

The Second Appeal

The Parties’ Submissions

The Claimant’s Case

66.              I turn then to the second appeal.  The Claimant’s first submission is that the ET erred in law in respect of its striking out of the victimisation claim in relation to the witness statements/character references; specifically the ET failed to apply the correct test as laid down by Singh v Governing Body of Moorlands Primary School & Anor [2013] IRLR 820 CA.

67.              The Claimant explained she had been sent the statements on 9 February 2015 by the Respondent’s solicitors and was told these were character references which would be included in the bundle, albeit that the Respondent was not planning to call the makers of those statements.  The Respondent had then said the statements would not be included in the ET bundle but the Claimant had then herself wanted them admitted as evidence.  EJ Prichard had stated he would have admitted the statements but the Jones ET had relied on EJ Warren’s decision not to admit them as irrelevant.  Because EJ Prichard took the view that he would have admitted these statements, he had therefore considered they were covered by litigation privilege, applying Parmar v East Leicester Medical Practice [2011] IRLR 641 EAT.  Parmar had, however, been overtaken by Singh (in particular see paragraphs 58, 59 and 60 of that judgment).  Moreover, these character references were not “any evidence given” (see Iqbal v Dean Manson Solicitors [2011] EWCA Civ 123 at paragraph 54).

 

68.              The abusive comments contained within the statement in issue in the present case must also surely fall within the category of “abusive dirt”, as referenced in Iqbal.  The statements had been created about a year after the events in question, none of the makers were to be called, and there was no cause for any of the statements to be made.  More generally litigation immunity protected witnesses or prospective witnesses from claims, but here the Claimant was seeking to pursue a claim against the Respondent not the witnesses.

 

The Respondent’s Case

69.              The general principle was that any witness making a statement in the course of litigation enjoyed the benefit of immunity as a matter of public policy, to ensure witnesses were not deterred from giving evidence (see per Lord Hope in Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 HL at pages 445-446 and 449, and per Lord Justice Auld in Heath v Commissioner of Police for the Metropolis [2005] IRLR 270 CA at paragraph 52).  That principle even extended to letters written by non-lawyers (see South London & Maudsley NHS Trust v Dathi [2008] IRLR 350 EAT) and in Parmar v East Leicester Medical Practice [2011] IRLR 641 EAT, Mr Justice Underhill (as he then was) had held that that principle applied equally to victimisation and other forms of discrimination claim.  The exception relied on by the Claimant was that contained in Singh; where a witness had allegedly been coerced into giving false evidence the immunity did not apply.  Singh, however, expressly did not overrule Parmar; it was simply an instance of an exception to the immunity acknowledged in Singh.

 

70.              The Claimant’s case had been that the Respondent had caused statements to be made which vilified her and had then been sent on to her but her objection was to the content of the statements, not to the means by which they were obtained; Singh was clearly distinguishable.  In any event, in Singh the council had sought to rely on the statements in evidence against Ms Singh, whereas in the present case the Respondent considered the statements disclosable but did not intend to rely on them.  It was the Claimant’s application to adduce the statements before the Jones ET not the Respondent’s.  The Claimant could not show that her case came within the limited immunity of general principle.  Even if the Claimant were now to allege that the victimisation detriment of which she complained was really concerned with how the statements were produced, she had no evidence such as would imply any improper pressure was placed on the witnesses; unlike Ms Singh (see paragraphs 3, 9 and 11 of that judgment).

 

71.              The statements that the Respondent had obtained in the present case were plainly evidence, albeit that the Respondent had determined not to use them.  The Prichard ET had correctly approached this issue as a matter of law and public policy.  Given the importance of the public policy involved it was for the Claimant to show she fell within the Singh exception.  As for Iqbal, that case was completely inapplicable, it was not a case where it was being argued that litigation immunity could apply but a harassment case.  The claim had thus been correctly struck out.

 

Discussion and Conclusions

72.              The public policy behind the litigation privilege relevant to this appeal is as set out in my summary of the Respondent’s submissions above.  The Claimant seeks to rely on an exception to that privilege, as was allowed in the case of Singh::

“66. …

(i) The core immunity relates to the giving of evidence and its rationale is to ensure that persons who may be witnesses in other cases in the future will not be deterred from giving evidence by fear of being sued for what they say in court;

(ii) The core immunity also comprises statements of case and other documents placed before the court;

(iii) That immunity is extended only to that which is necessary in order to prevent the core immunity from being outflanked;

(iv) Whether something is necessary is to be decided by reference to what is practically necessary;

(v) Where the gist of the cause of action is not the allegedly false statement itself, but is based on things that would not form part of the evidence in a judicial enquiry, there is no necessity to extend the immunity.

(vi) In such cases the principle that a wrong should not be without a remedy prevails.”

 

73.              The exception to the immunity allowed in Singh was then explained as follows:

“70. Ms Singh’s argument is that her cause of action relies on the undue pressure applied by the council to Mrs Heath.  One fallacy in the council’s argument is that it characterises the claim as being founded upon allegedly false evidence and that it is in substance an action against the council for the evidence they have adduced or intend to adduce in court.  On the contrary, Ms Singh’s claim is not based on anything that Mrs Heath might or might not say to the employment tribunal.  She has not yet given her evidence.  It is based on what went on outside the tribunal and in particular the means by which the council procured Mrs Heath to give the statement.  Evidence relating to the process by which the evidence was procured is simply not relevant to Ms Singh’s existing discrimination claim, and will not form part of that judicial enquiry (although it may form part of the judicial enquiry into the consolidated claims).

71. The means by which the council procured the witness statement is a free-standing act.  While alleged untruths in Mrs Heath’s witness statement (and discrepancies between that statement and what Mrs Heath had previously said in interview) may help Ms Singh to prove the allegation that undue pressure was applied, the complaint is not about the content of the statement, but the means by which it was procured.  The complaint that the council is in breach of contract would be just as valid if Mrs Heath had told Ms Singh about the alleged pressure but had stoutly resisted it.  Thus the second fallacy in the council’s argument is the proposition that it is Mrs Heath’s witness statement that is alleged to have caused the damage.  That is not the allegation.  The nub of the complaint is that the council has done something calculated to destroy or damage the trust and confidence that is inherent in an employment relationship.  If an employer, to the knowledge of an employee, is prepared to use underhand and improper means to defeat a claim of discrimination brought against it by the employee that is destructive of the requisite trust and confidence whether or not the employer succeeds.”

 

74.              Here, the Claimant’s complaint is not to the way in which the statements were procured; indeed, she could not make good such a complaint as she does not know how they were generated - all she knows is that they were apparently obtained in the Respondent’s preparation of its case and initially were going to be relied on without calling the makers of the statements themselves (not an uncommon practice in the ET) and were thus disclosed to her.  As has been made clear at this hearing, the Claimant’s objection is to the content of those statements, to what the makers of the statements were saying or not saying. 

 

75.              That being so, I cannot see that this is a case that falls within the Singh exception to the general principle.  Moreover, given that the statements were drawn up and initially intended to be used in the ET proceedings, I cannot see that they are to be seen as covered by Iqbal.  In the circumstances, I consider the Prichard ET reached a conclusion on this issue that was correct as a matter of law and thus that the claim was rightly struck out.  I duly dismiss this appeal.

 

 

 

The Third Appeal

The Parties’ Submissions

The Claimant’s Case

76.              The question on the third appeal was whether the Prichard ET had provided adequate reasons for its decision to make Deposit Orders.  These Orders related to two complaints: (1) the blacklisting/CIVEA complaint, and (2) the surveillance complaint. 

 

77.              In respect of the CIVEA complaint, EJ Prichard accepted that the system that the Claimant had contended for existed (see paragraph 14 of the Decision) but had failed to explain why he should then assume that it had not been applied in her case; after all, the Respondent did not shy away from breaching data protection (as was evident by its surveillance of the Claimant).  The Claimant was not saying - and could not say - that any statement had been made by the Respondent but was arguing that her name was circulated; that would be sufficient for other members of CIVEA to know not to employ her.

 

78.              As for the surveillance complaint, the surveillance itself was not in dispute and the Respondent was unable to say that anyone else had been treated in that way.  In those circumstances, the Claimant was unable to understand how a deposit could be justified.

 

The Respondent’s Case

79.              The reasons given by the Prichard ET were adequate to its task, providing enough detail to enable the parties to understand why Deposit Orders had been made.  There was no evidence that any detriment or any unfavourable treatment had actually occurred.  There was, for example, no evidence that the Respondent had notified CIVEA (or any members of CIVEA) of the Claimant’s name, let alone any evidence from which an ET could infer that any such act was discriminatory.  The Respondent’s clear denial had been set out in its ET3 (at paragraph 16) and the Claimant was asking the ET to infer that she was blacklisted from the fact that she had been unsuccessful in obtaining employment with a CIVEA member for a period of time (albeit she had only been out of work for four months post-dismissal so it might be reasonable to infer that her applications for such work declined from July 2014 in any event).  The ET’s decision was straightforward and its reasoning clear; it declined to draw any inference from the Claimant’s employment situation (see paragraphs 15 and 16).  In any event, if there was any evidence of any reference of her name to CIVEA or other CIVEA members, there was nothing to suggest that this was related to her protected act, as opposed to the fact that she had been dismissed for gross misconduct based in part on the Respondent’s belief that she had been dishonest - standard practice for CIVEA members (see the Prichard ET at paragraph 24); this was a small industry which was likely to mean that others became aware of this in any event.  As for the Claimant’s suggestion that the ET should have taken account of the possibility that something more might turn up in the future, that did not overcome the difficulty the Prichard ET had recognised and was not a sufficient basis for avoiding a Deposit Order (see, by analogy, per Mr Justice Underhill (as he then was) in ABN AMRO Management Services Ltd v Hogben UKEAT/0266/09 at paragraph 15).

 

80.              As for the surveillance complaint, the Prichard ET had ruled that it was more likely than not that any finding in relation to that claim was likely to be that the Respondent had carried out the surveillance because it considered the Claimant was using stalling tactics to delay the termination of her employment.  That was an assessment that the Prichard ET had been entitled to make and was the explanation for the Deposit Order and was adequate to the task.

Discussion and Conclusions

81.              The requirement on an ET is to provide reasons such that a party will know why the decision in question has been made: why they have won or lost (see Meek v City of Birmingham District Council [1987] IRLR 250 CA); it is entitled to take a proportionate view in this regard.  The Prichard ET had here relevantly decided to make Deposit Orders; it was not thereby shutting the Claimant or summarily determining her claim.  It allowed that there might prove to be something in what she was alleging but found that her claims had little reasonable prospect of success.  In so ruling, the Prichard ET applied the correct legal test.  The question is whether, applying that test, it provided adequate reasons for its conclusions.

 

82.              On the blacklisting case, the Prichard ET allowed that the system might operate as the Claimant had alleged; it essentially made an assumption in her favour.  It could not, however, see how the Claimant could make good her case, as she simply had no basis for saying her name had been passed on to any other CIVEA member.  Her case before the Prichard ET had relied on it inferring that this had happened based on her search for work.  The ET explained, however, why this did not assist her and concluded that there were other reasons why she might not have been offered work in the enforcement field (see generally paragraphs 15 and 16 of its Reasons); those reasons were adequate to the task.  The Claimant might not agree but the ET was entitled to take the view that her claim had little reasonable prospect of success.

 

83.              For completeness I should note that the Prichard ET did not stop there.  It further considered what was likely to be the outcome of the case, even if it had been found that the Claimant’s name had been passed on.  It concluded that - if that were found to have occurred, although the Claimant had no basis for saying that it had - that it would be because it was something that CIVEA members did when they had concerns about employees.  Given that the Claimant had been found to have been fairly dismissed for gross misconduct, that again seems to me a conclusion that the Prichard ET was entitled to reach and sufficient explanation as to why it made a Deposit Order.

 

84.              As for the surveillance claim I initially had more concern about this.  The Prichard ET’s conclusion is as stated at paragraph 24 (set out above) and I can see the Claimant’s objection that this seems to be forming a view as to whose case will ultimately be accepted.  I remind myself, however, that the Prichard ET was not here striking out the case - it declined to accede to the Respondent’s invitation in that respect - and was not summarily determining the merits; it was, rather, forming an assessment as to whether the Claimant was likely to succeed.  Doing so it concluded - applying a broad brush approach - that she had little reasonable prospect of doing so.  This was an experienced ET, best placed to form that view, and I am satisfied that I should not interfere, either with its approach to this question or with its reasons which again adequately explain both its approach and conclusion.  I therefore also dismiss the third appeal.