Murray Anthony Property Co Ltd v Jaffer [1993] UKEAT 773_92_1507

EAT
Murray Anthony Property Co Ltd v Jaffer
[1993] UKEAT 773_92_1507 · 1993-07-15
MR JUSTICE KNOX: This is an appeal by Mr Michael Murray and Anthony Property Company Limited from a decision of the Industrial Tribunal sitting at London (North) on the 12th February and the 8th April 1992 and on the 22nd April, in Chambers. The decision was sent to the parties on the 7th May 1992 and it was that Mrs Jaffer, the Applicant, was subjected to sex discrimination and the Respondents were ordered to pay to her the sum of £1,347.88.The Originating Application that was presented by Mrs Jaffer on the 24th July 1991 stated as the type of complaint that she wanted the Tribunal to decide, the question whether she was unfairly dismissed and/or sexually discriminated against. The details that she gave of her complaint were that she was employed by the Company respondent, Anthony Property Company Limited, but so far as the personal relationship was concerned she was answerable, as a secretary to Mr Michael Murray, who has appeared in person before us, although he was represented before the Industrial Tribunal, along with the Company respondents, by a solicitor. There are two paragraphs in the Originating Application which are relevant, the first one, which is paragraph 3 alleges that Mr Murray made repeated unwanted sexual advances to Mrs Jaffer on an occasion which, in the Originating Application, she puts at about the middle of January. The second paragraph is the last one which reads as follows:
"Thereafter and as a result he continually rejected and criticised my work and humiliated me in front of other workers. This made me unwell and culminated in my dismissal on April 25th 1991. Therefore I have suffered unlawful sexual discrimination . . ."
and she refers to, what are in fact, the relevant provisions of the Sex Discrimination Act 1975 . Section 1(1)(a) which is the well known definition of direct discrimination and Section 6(2), in fact it is 6(2)(b) which incorporates that definition of discrimination into the employment field by providing, so far as relevant:
"It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her - (b)by dismissing her, or subjecting her to any other detriment."
Evidence was given on both sides, both by Mrs Jaffer and other witnesses on her behalf, and by Mr Murray, on his behalf, before the Industrial Tribunal. The Industrial Tribunal made the following critical findings of fact. First of all they found that the event, identified as having occurred in about the middle of January of the unwanted sexual advances, in fact occurred at a date in February which Mrs Jaffer was not able to recall precisely. There is no need to go into the details of that. Then they go on to deal with some allegations that were made by Mr Murray against Mrs Jaffer and a witness on her behalf, a Mr Gradidge, and the Industrial Tribunal rejected a suggestion that Mr Murray had made that those two persons had formed a conspiracy to discredit Mr Murray. More important are their factual conclusions in relation to the allegation that I have read from paragraph 4 of the particulars in the Originating Application. That is all in paragraph 17, which reads as follows:
"We next had to consider whether the applicant's dismissal would have occurred in any event, as alleged by Mr Murray, or whether her refusal of his sexual advances was the real reason for the applicant's dismissal. The view of the tribunal is that Mr Murray found grounds for criticising the applicant's ability, but that he was apparently prepared to put up with this. It is only after the incident in February that it appears that Mr Murray instructed Mr Gradidge to keep a record of the applicant's attendances and times of arriving at work. Mr Murray says that he never shouted at the applicant, nor did he put her under pressure. We had the opportunity of seeing and hearing Mr Murray's behaviour in the Tribunal and we are quite satisfied that he is capable of shouting, has a very short temper. There was no evidence before us to show that there had been any deterioration in the applicant's work. It was the applicant's evidence that there had not been any and on balance, we prefer her evidence to that Mr Murray. We therefore find that we can draw the inference that a large factor in her dismissal was her refusal to accept Mr Murray's advances."
That is a critical finding which is, obviously, pure fact, and so far as we can see, there is no law in any of that paragraph but it is material which, if one accepts it, is capable of coming within the definition of unlawful discrimination which one gets by combining Section 6(2)(b) with Section 1(1)(a) of the Sex Discrimination Act 1975 .Mr Murray's Notice of Appeal, the initial one, does not reveal very much but it has been elaborated by an affidavit that he has subsequently sworn, and we do not propose to deal with this on technical basis of what was in his first Notice of Appeal. The first Notice of Appeal just says this:
"(a)The decision of the Tribunal was not in accordance with the evidence adduced (b)The Tribunal were wrong in law in finding that the Applicant suffered any injury to her feelings and that she had suffered any loss by reason of her dismissal."
Those are not issues that actually reveal any question of law at all. It would, of course, be a question of law if there was no evidence upon which the Tribunal could come to the conclusion that it did reach. That would be what the law calls "perversity". But this was not that type of case. This was a case where there was hotly disputed evidence, on one side, and on the other, and the Industrial Tribunal took a view as to who they believed and it is not for us acting under Section 136 of the Employment Protection (Consolidation) Act 1978 , which limits our jurisdiction to questions or issues of law, to interfere with the Industrial Tribunal's decisions on fact, if there is evidence upon which it was possible for the Industrial Tribunal to reach the conclusion that it did. It seems to us, perfectly clear, that there was evidence, in the shape of what Mrs Jaffer said on oath to the Industrial Tribunal, from which they could reach the conclusion (a)that there had been the unwanted advances, and it makes no difference to the substance of the matter whether it was in January or in February and (b)that the rejection of those advances continued to have the effect, that they describe in the paragraph that I read earlier in this judgment and do not at this stage repeat.Mr Murray, needless to say, does not accept these conclusions of fact and regards it as unjust that he should be unable to appeal them, but that I fear is not anything that anything short of an Act of Parliament amending the Employment Protection (Consolidation) Act, can put right. He has sworn an affidavit, as I mentioned earlier, which raises a variety of matters which go significantly beyond what was revealed by the Notice of Appeal that he put in. It was called for by this Tribunal because there appeared, if not in the Notice of Appeal, in a letter that Mr Murray sent when this Tribunal wrote to say that the Notice of Appeal did not seem to raise an issue of law and in that letter Mr Murray elaborated the grounds that he had for criticising the decision of the Industrial Tribunal to quite a considerable extent. That was asked to be substantiated in so far it contained allegations of bias, which the letter did, because for example, in the third page of that letter Mr Murray said this:
"If the `short temper', even partly, influenced the Decision then this is bias. Altercations happened between the Chairman and my Solicitor and between the Chairman and myself. The Chairman constantly interrupted and rebuked us while showing unaccountable leniency to the other side. We were very hampered indeed in pressing our case."
That was accepted by this Tribunal as raising a case of bias, and in accordance with the usual practice in this Tribunal where a case of bias is raised against the Industrial Tribunal, it has to be supported by affidavit evidence. So Mr Murray swore this affidavit. It went as he himself recognised, in the covering letter that he sent with it, well beyond any question of bias and debated the validity of the decision, or more precisely the invalidity, of the Industrial Tribunal at some considerable length.Dealing with those, first of all there was a claim that evidence from a Mr Armstrong was taken in by the Tribunal although it was hearsay. The answer to that is that an Industrial Tribunal is permitted to take in hearsay evidence, by Rule 8 of the Industrial Tribunal Rules of Procedure. Next it was said that a Mr Gradidge, who gave evidence on behalf of Mrs Jaffer, was discredited because it was proved that part of his testimony, in relation to an office diary, was shown to be untrue. Accepting all that it does not, in our view, raise a question of law it merely shows that there were grounds for disbelieving Mr Gradidge. Whether the Industrial Tribunal did disbelieve him or not and whether it made much difference whether his testimony was accepted or not, are pure questions of fact with which we have no jurisdiction to interfere. In fact it looks as if Mr Gradidge's evidence was of marginal significance, but that is again in itself, only a question of fact. Then there was a point about the layout of the office which Mr Murray was asked about and he produced a clear plan, which in fact we have with our papers, and wished that the plan should be taken by Counsel for Mrs Jaffer "and Counsel declined to do this giving no reason" to quote Mr Murray. This again is(a) an issue of fact and(b) peripheral in the extreme, because nothing really turned on the configuration of the rooms. Then there is a point raised about Mr Murray taking over the closing speech. We can not find any issue of law arising in relation to that. The Tribunal allowed him to do that, although there was an objection by Counsel on the other side, and we can see nothing of any practical significance in that. Then it is claimed that there were altercations between Mr Murray and his Solicitor and between the Chairman and Mr Murray. Mr Murray says in his affidavit:
"It appears the Tribunal have taken a biased view based on external factors. It was pointed out to the Hearing that their purpose was not to decide whether Michael Murray was mild or short-tempered. The purpose was to decide whether Michael Murray did the things alleged by Mrs Jaffer."
That, of course, is absolutely right but it misses the significance of the point. The significance of the point is, merely, that some of Mrs Jaffer's evidence was to the effect that Mr Murray, to use a colloquialism, "operated off a short fuse" and it was not an irrelevance that the Industrial Tribunal should have come to a similar conclusion as a result of what happened in front of it. But that is all that there is in that. It is very far from establishing the proposition that Mr Murray tried to persuade of, namely, that the Industrial Tribunal took the view that because Mr Murray's temper was shorter than some other peoples, therefore, they had to decide the case against him. There is nothing to that effect in the decision. I should perhaps, in fairness, say that Mr Murray has behaved with impeccable calm throughout the hearing before us today. The affidavit sums the matter up by saying that the Tribunal erred in law on matters that I have already gone through, that it was contrary to the evidence, that there was no evidence to support the decision and that it was contrary to the evidence that was in the possession of the Appeal Tribunal, referring back to the relevant paragraphs earlier in the affidavit which I have gone through.We have searched through perhaps rather wider than we strictly need have done in the light of the form of the Notice of Appeal to see, particularly since Mr Murray is not legally assisted, whether there really is a ground of law on which we could, or should, upset this decision of the Industrial Tribunal and the last one that we need deal with in terms is the question whether the Originating Application was in time. It was within three months of the dismissal, which occurred on the 25th April, and therefore it was within time in so far as it related to that dismissal and the paragraph that I read, paragraph 17, shows that the conclusion that the Industrial Tribunal reached was that a large factor in Mrs Jaffer's dismissal was her refusal to accept Mr Murray's advances.For all those reasons we have been unable to find an issue of law and that means that it would be of no assistance, either to Mr Murray or anyone else, for there to be a full hearing of this appeal and we therefore dismiss it at this stage.