Moss v Schering Health Care Ltd [1995] UKEAT 378_94_1611

EAT
Moss v Schering Health Care Ltd
[1995] UKEAT 378_94_1611 · 1995-11-16

JUDGE P CLARK :

This is an appeal by Mrs Moss (née Foxall) against a unanimous decision of the Brighton Industrial Tribunal chaired by Mr M.A. Rich, following a hearing extending over seven days, that her former employer, Schering Health Care Ltd, had not unlawfully discriminated against her on the grounds of her sex. The full reasons for the Industrial Tribunal decision are dated 28 February 1994.Following an ex-parte preliminary hearing before this Tribunal held on 24 June 1994 the matter came before the Appeal Tribunal, inter partes , again on 16 December last. On that occasion it was ordered that the appeal should be allowed to proceed to a full hearing on a single point.That point is identified at paragraph 6 of the Amended Notice of Appeal signed by the Appellant and dated 9 January 1995 in these terms:
"The Industrial Tribunal erred in law when it directed itself in respect of the statement in paragraph 6 of the Decision, in that it could not see the relevance of the matter before the Tribunal."
Although Mrs Moss appeared in person at both interlocutory hearings before this Tribunal, it is right to record that the grounds of application annexed to her form IT1, which launched these proceedings, were signed by Counsel, Mr Thomas Keith; she was represented by Counsel, Mr Dulovic, before the Industrial Tribunal, and has been represented by Miss Brown of Counsel before us today. The Respondent has been represented throughout by Mr Lynch of Counsel. We are indebted to Counsel who have appeared today for directing their submissions to the single point remaining in this appeal, and for taking us to material relevant to that issue.In order to understand the point that is made it is necessary to set out some of the background, and in particular the chronology of events to which both parties, for quite different reasons, attach considerable significance.Mrs Moss, then Miss Foxall, commenced employment with the Respondent as a Clinical Trials Co-ordinator (CTC) on 21 May 1990. She attended an interview with Dr Markland, her line manager, on 28 August and scored well under various heads relating to her work performance. That was followed by an appraisal by Dr Sheila Thorpe on 13 September and on 9 October Dr Markland carried out a further appraisal of the Appellant's performance.The Industrial Tribunal, at paragraph 8(c) of its reasons, described that appraisal as fairly satisfactory overall, but found that there were a number of matters in it which are significant in the light of what occurred later. Although not spelled out by the Tribunal we think this is a reference to Dr Markland's comments that she was:
"A little slow in sorting out the best approach to other staff members in getting co-operation necessary for work. ...
Jacqui feels however that she does not receive the necessary support from the Unit head [that is Dr Azmatullah] ...... There is still a feeling that the Unit SOP's [Standard Operating Procedures] are over-restrictive ... "That appraisal was passed to Dr Azmatullah for counter-signature, but he declined to do so, indicating that he did not agree with it and felt there were problems.On 15 October the Appellant gave notice to Dr Markland that she was pregnant. On 7 November Dr Azmatullah prepared a handwritten document headed "Preliminary Assessment" which contained reference to what is described as "conflict" with various members of staff, who are identified; and her contempt for SOPs, and for senior managers.One specific area of conflict identified by Dr Azmatullah was with Glyn, that is Dr Belcher, to whom I shall return. The document, near its conclusion, sets out the words: "Value for money? Absence Record" which the Appellant contended was a reference to her pregnancy, but the Respondent claimed was a reference to her attitude.On the following day, 8 November, the Appellant was interviewed by Dr Azmatullah in the presence of Dr Markland and Alison Smith. There was a wide-ranging discussion. Thirteen numbered matters were raised with the Appellant, including a complaint which she had made about Dr Belcher's behaviour. She alleged that he was actively harassing women and she would not stand for it. However, she went on to say that she no longer had any problems with him after she had told him several times to stay away from her. During the course of that interview, as the Industrial Tribunal found, the Appellant made very serious allegations about Dr Azmatullah in particular, and the Respondent Company in general.Following those allegations being made by the Applicant, Dr Azmatullah and Dr Markland took the matter up with the Managing Director, Mr Wallace. He investigated the Appellant's grievances and saw her on 13 November. On 27 November he saw her again to tell her that he could not uphold those grievances. On the same day Dr Azmatullah dismissed her.That is a brief summary of the Appellant's employment history. In her grounds of application to the Industrial Tribunal, settled by Counsel, she alleges that the true reason for her dismissal was her pregnancy. She does not there mentioned Dr Belcher.In its defence, the Respondent contended that the reason for dismissal was the irretrievable breakdown of relationships between the Appellant and her managers, and I add culminating in her expressed attitude at the meeting on 8 November.That was the issue for determination by the Industrial Tribunal. What was the true reason for dismissal? Her pregnancy or the breakdown in relations caused by the Appellant's complaints about her managers and the Company which Mr Wallace had concluded were unfounded. The rival contentions are set out in paragraphs 1 and 2 of the Industrial Tribunal reasons. They go on to set out the facts as they found them, preferring the Respondent's evidence to that of the Appellant, and conclude firmly and unequivocally that the reason for dismissal was that advanced by the Respondent, and that pregnancy was not the reason. In so finding, they expressly reject what they describe as the Appellant's giant conspiracy theory, involving the many witnesses called on behalf of the Respondent.I return now to paragraph 6 of the Industrial Tribunal reasons:
"6. As we have said, the sole grounds of this complaint relates to the fact that the Applicant was dismissed because she was pregnant. Indeed, Mr Dulovic opened the case on that basis, stressing to us that the timing of all this was particularly significant. It was, therefore, something of a surprise when the Applicant's evidence contained a number of allegations of what on the face of them appeared to be some form of harassment against various females by Dr Belcher. Significantly the only allegation which the Applicant makes of Dr Belcher in regard to herself was of some form of assault where he is said to have grabbed her by the throat and shaken her. The Applicant admits that she made it clear to Dr Belcher she did not like what in effect were some youthful high spirits or practical jokes, she mentioned it to Dr Azmatullah, her Senior Manager, who also mentioned it to Dr Belcher. Dr Belcher desisted from such conduct towards her thereafter. All this occurred more than three months before the presentation of the Application. We saw, and still see no relevance of these matters to the issues before us, but it did assist us in assessing the weight we should put upon the Applicant's evidence."
I should also read paragraph 11.
"11. We have deliberately kept this Decision short for the reasons which we described earlier in our Decision. We would only add, bearing in mind the accusations that have been made against Dr Belcher, that we do not accept on the evidence we have seen that Dr Belcher did anything in the nature of sexual harassment of the Applicant or anyone else. His personality was described to us vividly by Dr Azmatullah and others. We have all met individuals with that type of personality and sense of humour. The matter was best summed up for us by Miss Nichols, the young lady whose skirt was said to have been lifted by him. She simply said `we all loved him, he was a great boss' . We also have a vivid description by Dr Soranson and it may well be it was her evidence that explained the allegation of the Applicant that she had been grabbed by the throat and shaken. As Dr Soranson put it to us `one could be working away in the morning and suddenly one would feel a pair of hands round ones throat' and she said `you did not have to look round, you just said Good Morning Glynn' . All females employed by the Respondent, from whom we heard evidence, denied that Dr Belcher harassed females at all. If there was any form of harassment it was in the way of his exuberant spirits and, from the evidence we heard, he certainly did not discriminate between the two sexes as was vividly described to us by Dr Azmatullah."
The way in which the point in this appeal is put by Miss Brown is this. She says that by dismissing the Appellant's evidence concerning Dr Belcher as irrelevant, the Tribunal failed to appreciate its significance. The relevance of such evidence to the overall question to be decided by the Tribunal was that this was an example of a matter, long since resolved, which was dredged up by Dr Azmatullah on 7 November in his document of that date, and again at the interview the following day, in order to erect a basis for dismissing the Appellant on grounds other than the real reason, which was her pregnancy. Consequently the Industrial Tribunal has failed to take into account a relevant consideration, and that is an error of law under the Wednesbury test.We cannot accept that submission. First, we accept Mr Lynch's approach to paragraph 6 of the reasons. What the Tribunal is there doing, having identified the real issue in the case, as appears from the pleadings, is to indicate that allegations of sexual harassment against Dr Belcher are, in themselves, not relevant to the main issue. They may constitute a separate ground for complaining of sex discrimination, namely sexual harassment, but if that were to be the case, then a complaint to the Industrial Tribunal ought to have been made within the three month time limit. Secondly, the issue having been raised by the Appellant during the hearing, the Respondent felt obliged to call evidence in rebuttal, including the evidence of Miss Nicholls and Dr Soranson referred to in paragraph 11 of the reasons. Faced with this conflict of evidence, the Industrial Tribunal resolved the issues of fact, and preferred the Respondent's evidence to that of the Appellant. It follows, as the Industrial Tribunal went on to hold, that the significance of those factual conflicts could be relevant to deciding questions of credibility, particularly in relation to the Appellant's evidence as a whole. That was a matter for the Tribunal as the fact-finding body.Further, we cannot say that in expressing itself as it did in paragraph 6 of the decision, the Industrial Tribunal deemed the Appellant's submission that dredging up the Belcher complaint on 7 and 8 November was a pointer towards establishing pregnancy as the real reason for dismissal, was irrelevant. That was a separate matter which went into the Industrial Tribunal's overall consideration of the rival contentions.It follows, in our judgment, that far from demonstrating any error of law in the Tribunal's reasoning, this appeal in fact shows that the Tribunal was careful to distinguish between those matters which were and those which were not relevant to the real issue in the case and in those circumstances the appeal must be dismissed.