McManus v Whittingham Bradwell & Mack [1994] UKEAT 124_93_0807

EAT
McManus v Whittingham Bradwell & Mack
[1994] UKEAT 124_93_0807 · 1994-07-08
MR JUSTICE MUMMERY: (PRESIDENT) This is an appeal by Mrs Colleen McManus against the decision of the Industrial Tribunal held at Nottingham on the 18 September 1992. For the full reasons notified to the parties on the 14 October 1992, the Tribunal unanimously decided to dismiss Mrs McManus's complaint of sex discrimination against her former employers, a firm of solicitors Whittingham Bradwell & Mack who have since the 1 July 1994 merged with the firm of Fraser Brown.At the Tribunal Mrs McManus conducted her case in person. Mr Lucas, a solicitor and partner in the Respondent firm, represented his firm. Mrs McManus was dissatisfied with the decision and appealed by Notice of Appeal dated the 25 November 1992. The point of law identified in her Notice of Appeal was that there had been a procedural impropriety in the hearing as she had not been invited to cross-examine Mr Reginald Green who gave evidence on behalf of the Respondents. There is also a complaint of bias, but for reasons which will be explained later, it is unnecessary to examine and decide that point.Because of the nature of the ground of appeal, as identified in the Notice of Appeal, the Employment Appeal Tribunal instigated the customary procedure for dealing with such complaints. In accordance with that procedure Mrs Mcmanus swore a lengthy affidavit on the 26 March 1993. That affidavit was submitted to the Chairman of the Tribunal, Mr A H Browne, for his comments which he gave in April 1993. In due course an affidavit was sworn by Mr Lucas on the 30 June 1994. That affidavit was also submitted to the Chairman of the Tribunal. He made further observations earlier this month.At the hearing of the appeal today, Mr Smail represented Mrs McManus. The Respondents have not attended or been represented. Before we deal with the substantive appeal we should explain the circumstances in which they have decided not to take any part in the hearing today. A letter was written to the Tribunal, yesterday after a request for an adjournment of today's hearing had been refused. The letter reads as follows, after the introductory paragraphs,:"We have now had the opportunity of considering the Chairman's further observations and discussing the same with Counsel. Counsel was concerned that the Tribunal may wish to hear oral testimony from Mr Lucas" [he was the Solicitor who conducted the firm's case at the Tribunal] "and Mr Green" [who was the witness for the Respondents]. "Neither of whom would be available to attend the Tribunal hearing on the 8 July 1994. It was our understanding that the Tribunal would proceed by way of submissions and that oral testimony would not be required. If that was not the case we would have to seek an adjournment. We are anxious that the appeal should be heard and are grateful to you for indicating that it would be most unusual to call evidence and if the Tribunal consider it necessary for witnesses to be heard, the appeal will be adjourned.As you are aware we have submitted a Skeleton Argument on behalf of the Respondent and Affidavit of Mr D I Lucas sworn on 30th June 1994. The information contained in those documents is based upon the clear and true recollection of Mr Lucas and Mr R H Green of the events which took place at the Industrial Tribunal sitting at Nottingham on 18 September 1992. As such, we do not feel that there is anything we can add by either oral or written submissions at the Appeal to expand the arguments put forward on behalf of the Respondents.In the circumstances the Respondents do not intend to be present at the hearing on 8th July 1994. We would stress that the Respondents do not mean any discourtesy to the Tribunal but feel that the documents which are before the Tribunal contain all the relevant information. In particular the Appellants and Respondents versions of what took place on 18 September 1992."They go on to say that they would be grateful if this letter could be placed before the Tribunal at the appeal.That sets the scene for the hearing of this appeal. In order to understand the point raised in the Notice of Appeal it is necessary to trace the steps of this dispute. Mrs McManus was employed as a secretary/typist by the Respondent solicitors from the 12 March 1990 until the 13 December 1991. It is immediately apparent from those dates that she was not employed long enough to be entitled to make a complaint to the Industrial Tribunal of unfair dismissal. According to her Originating Application, presented on the 13 February 1992, her sole complaint was of sex discrimination.According to the IT1, which sets out the details of her complaint, she stated that on the 1 November 1991 she informed the Respondent employers that she was pregnant: the baby was due on or about the 8 July 1992. On the 3 December she was sent a letter by the employers that she would be redundant as from the 13 December. The reason stated in the letter was that it was necessary to make her redundant due to a considerable reduction in the workload. She stated the basis of her complaint that she had been unfairly discriminated against and that the real reason for making her redundant was that she had become pregnant.The Respondents sent in a Notice of Appearance dated the 4 February 1992. The dates of employment were agreed, but it was disputed that Mrs McManus' employment included secretarial work. The Respondents set out the grounds on which they relied to justify the decision to make her redundant. Details were given of the necessity of reducing the number of employees due to the reduction in the firm's workload.The issue of sex discrimination came before the Industrial Tribunal at Nottingham. The Tribunal heard evidence from Mrs McManus. They also heard evidence from Mr Reginald Green. The Tribunal stated in the decision what the claims of Mrs McManus were and what the response of the firm was. The Tribunal considered the evidence and said this: (paragraph 5)
"Mr Green, in his evidence, denies that there was any conversation about pregnancy on the 1 November. He says that he was unaware that the applicant was pregnant until after the decision to dismiss the applicant for redundancy had been made. The respondents further say that if a man had been employed in the position held by the applicant he would similarly have been dismissed."
The Chairman stated that he and another member, Mrs Clarke, considered that it was unlikely that the Applicant would have told the Respondents of her pregnancy at such an early stage. They preferred the evidence of Mr Green that he was not aware that she was pregnant until after the decision to dismiss her had been made. There was, however, a dissentient lay member, Mr B Crossland, who thought that it was probable that the Respondents were told of the pregnancy on the 1 November. By that time, however, redundancy was much in the minds of the Respondents, and the Applicant was a likely candidate for selection. So Mr Crossland was not persuaded that pregnancy was the reason for her dismissal.The result was that the Tribunal were unanimous in reaching a decision that the Respondents did not treat Mrs McManus less favourably than they would treat a man. The Tribunal accepted the explanation given by the Respondents that the reason for the dismissal was redundancy and that any male holding the position held by Mrs McManus would also have been dismissed. In those circumstances the Tribunal concluded that there was no contravention of the provisions of the Sex Discrimination Act.Mrs McManus's complaint, as indicated by the Notice of Appeal, is about the procedure adopted by the Tribunal which came to those conclusions. The details of what happened at the hearing are set out in the affidavit. It is unnecessary to go into the details of it. The substance of the complaint is contained in paragraph 1 where Mrs McManus says that the Tribunal was guilty of procedural impropriety by not inviting her to cross examine Mr Reginald Green, the witness for the Solicitor respondents.A great deal of detail is given about the circumstances which gave rise to the dispute and about the course of the proceedings before the Tribunal. In particular Mrs McManus says this in paragraph 14 of her affidavit. She was accompanied by her friend, Michele at the hearing. She says:
"... Reginald Green took the oath and gave his evidence. David Lucas led him through his evidence. The Chairman and union person then asked Reginald Green some questions. I admit I was getting nervous at this point because I expected the Chairman to ask me if I wanted to question Reginald Green. I already had a list of questions prepared and I also thought of some more questions as Reginald Green gave his evidence. The Chairman then said to Reginald Green thank you very much, folded his book and papers up and then stood up. The panel then retired to consider their decision. I was so amazed at what had happened that I didn't have a chance to say anything or ask the Chairman to let me put the questions I had prepared to Reginald Green.
15. The panel retired for about 15-20 minutes and then came back and the Chairman gave the decision. David Lucas ... confirmed that there was no application for costs."Mrs McManus goes on to explain how she came to the decision that she wished to appeal on the grounds that the Tribunal had not adopted a correct procedure. She sets out in paragraph 20 of her affidavit a number of questions which she particularly wanted to ask Mr Green, but was not able to ask him because she had not been invited to cross-examine him. It is not necessary to read out that list of questions which covers a number of pages. It is sufficient to say that, in our view, a substantial number of those questions would be relevant questions for Mrs McManus to put to Mr Green on the issue of sex discrimination.When that affidavit was put before the Chairman for his observations the Tribunal Chairman read again the decision of the Tribunal. He had also referred to his personal notes of the evidence taken at the hearing. He said that he did not think any useful purpose would be served by commenting on differences in recollections of the details of the evidence and his own notes. He stated that he did not have knowledge of a number of matters that were raised in the affidavit. The most pertinent part of his comments is contained in paragraphs 4 and 5 of his observations where he says this:
"I have read paragraph 14 of the affidavit and I have also referred to my own notes. I took a note of the evidence given by Mr Green during his examination in chief and this is followed by a note of his answers to questions put to him by the Tribunal. There is no note of any cross-examination of Mr Green by the applicant and I accept that due to an oversight I did not expressly invite the applicant to cross-examine Mr Green. I strongly deny any allegation of bias."
The allegations of bias have not been explored at this hearing. It was unnecessary to do so. He says in paragraph 5:
"At the conclusion of the evidence, I gave an opportunity to each side to say anything further. My note records that Mr Lucas, for the respondents, said that he had no more to add. The applicant only said "never was informed I was to be redundant". The applicant did not then, or at any time, indicate that she would like to put some questions to Mr Green. If she had done so, she would certainly have been allowed to do so."
That was the evidence before the Employment Appeal Tribunal when this matter came on at preliminary hearing on the 6 October last year. The Tribunal, differently constituted than today, ordered that the appeal should proceed to a full hearing of this Tribunal. After that direction was given an affidavit was sworn by Mr Lucas. It was sworn just over a week ago. Mr Lucas based his affidavit on the fact that he had appeared and represented the Respondents at the Industrial Tribunal hearing. He pointed out in the affidavit that the Chairman of the Tribunal was extremely considerate to Mrs McManus during the hearing and indicated in his affidavit that one feature of the hearing was Mrs McManus' misunderstanding of the nature of her complaint.He commented in paragraph 3:
"She failed to fully understand the difference between a complaint of sexual discrimination on the one hand and of unfair dismissal or unfair selection for redundancy on the other hand."
He set out his recollection of the course which the Tribunal hearing took. He said that Mrs McManus gave her evidence and he cross-examined her. Then the Tribunal Members asked questions of Mrs McManus. Mr Green then gave evidence in chief on behalf of the Respondents. Mr Green was asked a number of question by Members of the Tribunal. There are no notes of any cross-examination of Mr Green by the Appellant.He continued in paragraph 5:
"It is my clear recollection that the Appellant did begin to cross-examine Mr Green. However, the Appellant's questions reflected her misunderstanding referred to herein between a claim of sexual discrimination and unfair dismissal and her questions were relevant to a complaint of unfair dismissal and not sexual discrimination. Upon being advised thereof by the Chairman the Appellant declined to ask any further questions."
It was in those circumstances that Mr Lucas submitted that it was necessary for the Chairman to consider and then comment on the version of events set out in his affidavit.The Chairman submitted further observations. He said in that that nearly two years after the hearing he does not recall having to explain to Mrs McManus on a number of occasions that her complaint was of sex discrimination and not unfair dismissal. He said he was unable to say with confidence after this lapse of time whether Mrs McManus began to put questions to Mr Green as claimed by Mr Lucas or not.He said:
"I would not have felt a need to note the answers to any questions which I deemed to be irrelevant, but I think that I would have made some kind of note such as:
"Cross-examination - no relevant questions"."
He does not seriously depart in those observations from what he said in his initial observations. Most important, in our view, is the fact that the Chairman accepted in his first observations that he appeared to have overlooked the fact that Mrs McManus had not been given an opportunity by him of cross-examining Mr Green. His recollection is reinforced by the notes which we have. They have been transcribed and are stated by the Chairman to be a true copy of the notes which he took at the hearing.There is a note of Mr Green being sworn and giving his evidence in chief. There is a note of evidence given by Mr Green in response to questions by the Tribunal. There is no note of any cross-examination by Mrs McManus.Those are the facts about the hearing on the 18 September 1992. On the basis of those facts Mr Smail presented to the Tribunal, on behalf of Mrs McManus, an excellent set of submissions; clear and concise in every respect. He drew the Tribunal's attention to the relevant provisions of the 1985 Industrial Tribunals (Rules of Procedure) Regulations which were in force at the time of the hearing.The relevant Rules are 8(1) and 8(2). Rule 8(2) provides:
"Subject to paragraph (1) of this Rule, at the hearing of the originating application a party (unless disentitled by virtue of Rule 3(2)), the Secretary of State (if, not being a party, he elects to appear as provided in Rule 7(5) and any other person entitled to appear shall be entitled to give evidence, to call witnesses, to question any witnesses and to address the tribunal."
Mrs McManus' complaint is that she was not accorded her entitlement of questioning the Respondents' witness, Mr Green. Mr Smail submits that paragraph 2 of Rule 8 must be read in the context of paragraph 1 which provides:
"The tribunal shall conduct the hearing in such manner as it considers most suitable to the clarification of the issue before it and generally to the just handling of the proceedings; it shall so far as appears to it appropriate seek to resist formality in its proceedings and it shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law."
Mr Smail submitted that the Tribunal had not made any deliberate application of paragraph 1 of Rule 8 to override the entitlement of Mrs McManus under the Rules to cross-examine under paragraph 2. Accordingly, the Tribunal had failed to invite her to exercise the right she had to cross examine. That was a procedural irregularity. It was a material procedural irregularity because the affidavit sworn by Mrs McManus identifies a conflict of fact which had to be resolved by the Tribunal. It also identifies the questions which Mrs McManus would wish to put to Mr Green to challenge his evidence. Cross-examination is an essential tool in resolving conflicts of fact and issues of credibility.That, quite simply, is the case of Mrs McManus. It seems to us that it is a sound basis for this appeal. A material procedural irregularity is an error of law on which this Tribunal can entertain and allow an appeal. We are satisfied both by the evidence of Mrs McManus and the Chairman's observations, reinforced by contemporary notes, that there was an unfortunate oversight which led to Mrs McManus being deprived of her entitlement to question Mr Green.Before making an order on the appeal we should however refer to the skeleton argument submitted on behalf of the Respondents. The argument is based on the assertion that the Chairman was in error in his recollection that he had not invited Mrs McManus to cross-examine Mr Green. The argument submitted by the Respondents seeks to challenge the evidence not only of Mrs McManus but also of the Chairman.The argument is one which we cannot accept. The Chairman is quite clear in his initial observations. He does not seriously modify his comments in his further observations that there was no cross-examination of Mr Green. As we have already mentioned the contemporary notes are a powerful indicator that his recollection is correct.The skeleton argument goes on to make a number of points which we do not find persuasive: for example the questions which Mrs McManus wanted to ask Mr Green would not have had any effect on the Tribunal's decision. That is more a speculation than a submission. Nobody can tell what effect those questions would have on the evidence of Mr Green and on the material on which the Tribunal made their decision.It is argued that, contrary to Mrs McManus' recollection, the Tribunal did not retire to consider its position immediately after Mr Green gave evidence. The Tribunal only retired after both parties were given an opportunity to say anything further. It was not suggested by the Tribunal that Mrs McManus indicated that there were further questions she wished to ask Mr Green.Finally, it is submitted that, even if there was a procedural impropriety of the kind relied on, there was no prejudice to Mrs McManus. The decision of the Tribunal would have been the same. Again, that is pure speculation. The legal position is that a party to proceedings before an Industrial Tribunal is entitled to have a hearing conducted in accordance with the Rules. The Rules entitled Mrs McManus to question witnesses of the Respondent. She was not given that entitlement by an unfortunate oversight. There was no clear decision by the Tribunal applying Rule 8(1) on the grounds that the most suitable way of clarifying the issues and of justly handling the proceedings was not to have a cross-examination of Mr Green.There has been a material procedural irregularity. This Tribunal is unable to put the matter right by any other means than allowing the appeal and remitting this matter to be heard by a different Industrial Tribunal. As Mrs McManus was never able to put the questions in cross examination there simply is not the evidence before this Tribunal on which it could make a decision itself one way or the other on the claim of sex discrimination.For all those reasons the appeal is allowed. The matter remitted to an Industrial Tribunal at the Birmingham Regional Office.