Copley v Madine [1996] UKEAT 1042_95_0406

EAT
Copley v Madine
[1996] UKEAT 1042_95_0406 · 1996-06-04
MR JUSTICE BUTTERFIELD : This is an appeal against the decision of the Industrial Tribunal sitting at Leeds promulgated to the parties on 21st August 1995, whereby the tribunal found that the appellant had not suffered unlawful sexual discrimination contrary to the Sex Discrimination Act 1975 .The appellant, Mrs Copley, was employed by DRM Display Industries, who are manufacturers and suppliers of display equipment. At the material time the respondent, Mr Madine was DRM's operations director. The appellant was employed as his assistant between October 1993 and August 1994.Upon leaving her employment, though not before, the appellant complained that she had been subjected to sexual harassment throughout her employment at the hands of the respondent. The harassment took the form of making indecent suggestions to her, making remarks containing sexual innuendoes to her and, on one occasion, making a physical advance to her. Those allegations were all hotly disputed by the respondent.After hearing evidence over four days on the contested issues of fact, the Industrial Tribunal concluded unanimously that where the evidence of the appellant and her witnesses differed from the respondent and the respondent's witnesses, the tribunal preferred the evidence adduced on behalf of the respondent. Thus the Industrial Tribunal rejected all the complaints capable of amounting to sexual harassment and dismissed the appellant's complaint.The appellant sought a review of the decision, but the application was refused on the ground that it had, in the opinion of the Chairman, no reasonable prospect of success.The central thrust of this appeal is that the tribunal erred in law in refusing to admit in evidence the transcript of a tape recording, said to be of a telephone conversation between the appellant and the respondent. The matter arose in this way. The appellant had left her employment on 9th August 1994, when according to the respondent he criticised her performance and commitment to her work and she walked out. The respondent telephoned her on 9th and 10th August 1994 to try to persuade her to return. She refused and instead alleged that the respondent had been sexually harassing her. So much appears from the respondent's Notice of Appearance. There had been no reference to any telephone calls in the appellant's originating application.When giving evidence before the Industrial Tribunal on the first day of that hearing on 11th April 1995, the appellant said this:
"On 10 August 1994 Mr Madine telephoned me at home - early in morning. My husband had taken our children to school. Mr Madine apologised for what had happened at work the day before. He wanted a relationship which, if it did not include orgasm, it had everything else. Someone was in the office - he would ring back. He did ring back. He did ring back. He said that he wanted me as day-time wife. The conversation went on between us at some length."
At that point the appellant's representative announced that he was in possession of a transcript of a tape recording of that conversation which he wished to admit as evidence. He explained to the tribunal that the recording had been recorded by accident on the appellant's telephone answering machine. The appellant had discovered this accidental recording by chance some time later. The appellant's representative went on to say that the tape recording from which the transcript had been taken was not the original tape, but a later copy. The respondent objected to the introduction of the transcript. The Chairman adjourned the question of the admissibility of the transcript to the next hearing of the application to see if the parties could agree about it. They could not.The parties had in fact met before that hearing on 8th June 1995, when the representative of the respondent informed the representative of the appellant that the integrity and authenticity of the tape recording was being challenged.At the part-heard hearing on 19th June 1995, the appellant's representative repeated his submission that the transcript was admissible, emphasising that the conversation had been taped by accident on the appellant's telephone recording machine and that the appellant was not aware that the conversation was being recorded and had only discovered it later. He explained that the transcript had been made by a colleague and was an accurate record of what was said on the tape. The respondent continued to resist the application to admit the transcript and made clear, as he indeed he had already done to the appellant's representatives before the adjourned hearing, that his case was that the tape was a complete fabrication and did not contain his voice.The Industrial Tribunal refused to admit the transcript in evidence.No further evidence was lead on the issue by the appellant or on her behalf. No application was made to lead further evidence by the appellant or on her behalf. And no application for an adjournment was made.It is perfectly plain that the transcript could not be produced in evidence by the appellant unless the respondent consented or the Industrial Tribunal was prepared to exercise its powers under Rule 9(1) of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993 Schedule 1. That Rule provides:
"9.-(1) The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings."
The transcript was of what was said to be contained on the copy tape. The only person who could produce that transcript was the person who created it. However, the evidence only related to the copy tape. There was no evidence before the Industrial Tribunal and no application to adduce any evidence to that effect as to what had happened to the original tape, or as to how the copy came to be made, by whom, and when, and why the original tape was no longer available.There were thus a number of unsatisfactory and unresolved matters at the time the application to put in the transcript was made. The tribunal could have permitted the appellant to put in the transcript and wait to see whether its accuracy and veracity which were plainly in issue, could be proved. On the other hand, the tribunal was not obliged so to do.In this case there was no problem in continuing the hearing without the transcript. The appellant had given evidence of the conversation she said had taken place with the respondent. If evidence could be called proving the provenance, accuracy and integrity of the copy tape this could be played to the tribunal at a later stage. All the tribunal were faced with was a decision as to whether to admit an unproven transcript of a copy tape, the authenticity of which was vigorously contested. They refused so to admit it. They were, in our judgment, fully entitled to take that view, and indeed in circumstances such as this, it was, in our judgment the only sensible decision to make. The transcript, if established to be an accurate reproduction of the original tape, would ultimately be available to them. If necessary at that stage, the appellant could be recalled. But if it was not possible for the appellant to establish the integrity of the tape, it would not be admissible. Had the tribunal succumbed to the temptation of looking at a transcript which ultimately was not capable of proof, there existed the possibility that their minds might have been effected, however subconsciously, by inadmissible evidence.Before us Miss Harrison seeks to challenge the tribunal's decision on the central ground that the tribunal should have asked whether there was an original tape, and if so directed its production. The tribunal should, it is said, have not proceeded in this case on the basis of submissions only, and should have required evidence before ruling as it did. It should have admitted the tape and transcript de bene esse and at the conclusion of all the evidence decided for itself as to whether or not the tape was a genuine and authentic artefact.Further Miss Harrison submits that even if the evidence was not admissible as a matter of law, the tribunal should have admitted the evidence under its discretion under Rule 9(1) and in refusing so to do exercised that discretion unfairly and unreasonably.In our judgment those submissions are not well-founded. The transcript was not admissible in law at the evidential stage at which its admission was sought. Since the evidence was prima facie inadmissible, it was a matter for the Industrial Tribunal to exercise its discretion under Rule 9(1). It is plain from the comments of the Chairman who has been supplied with a copy of the Notice of Appeal in this case, that the tribunal did consider exercising its discretion under Rule 9(1), and decided, in the interests of justice, that they should not exercise it in favour of the application. That was a reasonable and proper exercise of the discretion of the tribunal in the circumstances of this case, and in no sense could it be described as unfair or unreasonable.Further, it is not the duty of the Industrial Tribunal to tell parties what evidence they should or should not lead. There is no duty on the Industrial Tribunal to act pro-actively, that is to say involving itself in the way in which the case is conducted on behalf of either party. It is true that in certain circumstances, particularly where a party is unrepresented, the tribunal may seek to assist a party by suggesting lines of enquiry which might be made. Here the appellant was represented. There is no reason to suppose that the representation was anything other than adequate. In those circumstances there was no duty on the Industrial Tribunal in our judgment to intervene in the way it is now suggested it should.Furthermore, it is plain from the sequence of events that certainly by the hearing in June, the appellant was aware that the authenticity of the tape recording was being challenged. It was therefore open to her or her advisers, to obtain evidence dealing with the issue of authenticity. She did not do so. If it was not plain to her before the hearing in June, it was certainly plain to her after that hearing. The matter was then adjourned until July. It would have been open to her to obtain evidence in the intervening month. She did not do so.Before us today the appellant applies to introduce fresh evidence in a report from an expert, Dr French, who has examined not a cassette from a telephone answering machine, but from a video camcorder, which, it appears, he has been told was used to record the conversations and was indeed switched on in order to record them. He having examined a video cassette from such a system, had apparently concluded that it has not been tampered with. However, it is to be noted that that is a very different version of events than that put forward on behalf of the appellant before the original tribunal.Be that as it may, it is perfectly clear that the evidence which it is now sought to be introduced from Dr French, could with reasonable diligence have been presented to the Industrial Tribunal. We decline to admit the fresh evidence and do not act upon it.In those circumstances the first ground of appeal in relation to the admissibility of the tape recording fails.Miss Harrison makes a second submission concerning the reasons expressed in the tribunal's extended reasons for rejecting the evidence of a particular witness, Miss Howson. At paragraph 7 of the extended reasons, the tribunal says:
" Miss D Howson, who was receptionist at the company in March 1994, gave evidence of hearing indecent suggestions by the respondent to the applicant. The tribunal again did not accept this evidence as being correct."
It is submitted that the decision is deficient and that accordingly an error of law is disclosed, because, it is said on behalf of the appellant, it was incumbent on the tribunal to give some reason for rejecting the evidence of Miss Hewson. Had that paragraph stood on its own, it may be that there is some substance in Miss Harrison's submission to us. However, it does not stand alone. In paragraph 4 the tribunal having heard evidence over four days state as follows:
" ... The unanimous conclusion of the tribunal was that where the evidence of the applicant and the applicant's witnesses differed from the respondent and the respondent's witnesses, the tribunal, on the balance of probabilities, preferred the evidence of the respondent and the respondent's witnesses. In relation to the most important evidence, that of the applicant herself and the respondent himself, the tribunal preferred the respondent's evidence because of his demeanour and consistency in providing that evidence which was not apparent in the evidence provided by the applicant."
Looking at the decision as a whole, it is perfectly clear that the tribunal gave adequate reasons for its rejection of Miss Hewson's evidence. It is not incumbent upon a tribunal to articulate its precise mental processes in respect of each witness, it is sufficient if it gives a general indication of its preference and the reasons for that preference of one side or another. We are helpfully reminded of the decision in Stewart v Cleveland Guest (Engineering) [1994] IRLR 440 in which in dealing with a similar issue, Mummery J had this to say:
"This tribunal only has jurisdiction to determine an appeal against the decision of the Industrial Tribunal if there is an error of law. If the error of law relied upon is the argument that the Industrial Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the facts and law, would have reached, an overwhelming case to that effect must be made out."
In our unanimous judgment, the appellant does not begin to make out a case of unreasonableness in relation to the rejection of the evidence of Miss Hewson in this case. In those circumstances that ground too fails.For those reasons this appeal is dismissed.