Deans & Anor v Spells & Ors [1996] UKEAT 726_95_2803

EAT
Deans & Anor v Spells & Ors
[1996] UKEAT 726_95_2803 · 1996-03-28
For the 3rd Respondent MR E TABACHNIK Q.C.

Messrs Eversheds

Solicitors

Senator House

85 Queen Victoria Street

London EC4V 4JL

MR JUSTICE HOLLAND : This an appeal from decision of an Industrial Tribunal sitting at Leeds over three days, the last such being 28th March 1995. The tribunal had before it complaints by Mrs Janice Dean alleging sex discrimination against Mr John Spells, Mrs Rose Spells and Century Inns Limited. Further the Equal Opportunities Commission who were giving financial assistance to Mrs Dean, itself made a complaint against Mr Spells relying on Section 73(1) of the Sex Discrimination Act 1975 . In the event, all those applications were dismissed by the tribunal.It is against those decisions that Mrs Dean, financially assisted by the Equal Opportunities Commission and the Commission itself appeal.The essential facts are in short compass. The scene is the Commercial Inn, Market Street, in Normanton. That inn was owned by Century Inns as landlord. The tenant of the inn was Mrs Rose Spells pursuant to a tenancy agreement with Century Inns Ltd. Mr John Spells is the husband of Mrs Rose Spells and at the material time worked in the inn as a bar cellar man. The applicant, the present appellant, Mrs Dean started working at the inn on 10th June 1994 her work being behind the bar on a part-time basis.It would seem that in July 1994 there were, as alleged by Mrs Dean, some three incidents affecting her in each of which Mr John Spells, so she says, was involved. The first two incidents amounted to him passing comments upon her, each comment arguably sexual by innuendo albeit that the second such was apparently not so understood by her at the material time. Then, and crucially on 23rd July 1994, when the public house was closing she was kissed by Mr John Spells on the mouth, an incident seemingly witnessed by Mrs Rose Spells who extracted the immediate response from Mrs Dean:
"It isn't what it looks like."
Thereafter Mrs Spells excluded Mr Spells from her inn for a period of time. It seems that he later returned and tensions were inevitably thereby raised. The culmination of this short series of unhappy events appears to have been a telephone conversation between Mrs Dean and Mrs Spells. The evidence is that Mrs Dean said:
"Look Rose, if John is back permanently would you prefer me not to come back to work anymore?"
There was an issue before the tribunal as to the response. Said Mrs Dean the response was "Yes" . Said Mrs Spells the response was "It is up to you." In the event however, which ever version be correct, Mrs Dean did not return, and on 16th September 1995 the IT1 was presented alleging sexual discrimination.The issues before the Industrial Tribunal fell under two heads.First, Head One . Did Mr Spells sexually harass Mrs Dean so that on the ground of her sex he treated her less favourably than he would treat a man? The words are taken from Section 1(1) Sex Discrimination Act 1975 . That essential issue raised as practical issues for the tribunal these questions: first, on the balance of probabilities were there the earlier incidents and did such respectively amount to sexual discrimination? second, on the balance of probabilities did the kiss amount to an assault or was it consensual? and third, in all the circumstances with particular regard to the earlier findings and to the telephone conversation, was Mrs Dean discriminated against by a dismissal, that is, by reference to Section 6(2) was there unlawful discrimination by way of a dismissal? The practical question arising at this stage for the Industrial Tribunal was as to whether it had been proved on balance of probabilities that she had been dismissed or whether she had left of her own accord.The leads on to the second head . If the foregoing be proved, was the employer of Mrs Spells, Century Inns, having regard to the definition of employment in Section 82(1), so that that organisation acquired a vicarious liability for the conduct of Mrs Spells?Dealing with the issues raised under the first head, that is, the issues rising out of the circumstances that led up to and included the alleged dismissal, all such were plainly issues of fact.Turning to the second head, the question thus posed plainly raised a mixed question of fact and of law, in particular as to the proper construction of the definition of employment in Section 82(1). In the event, although that second head could not arise unless and until there were findings favourable to Mrs Dean under the first head, and in particular a finding of a Section 6(2) discrimination by way of dismissal, the Industrial Tribunal for understandable pragmatic reasons, that is to try to make some saving in costs, ruled upon it first, finding that there was no employee/employer relationship as defined by Section 82(1) between Mrs Spells on the one hand and Century Inns on the other. Having made that decision under what we have described as the second head, they went on to consider the issues arising under the first head making findings eventually against Mrs Dean.Before this tribunal, Miss Rose, to whom we pay tribute for her consistent courtesy and tenacity and no little skill, has sought to persuade us to adopt the same course as the Industrial Tribunal, that is, to consider first the issue arising by reference to Section 82(1) and then to go on to consider such points as arise under what we have called the first head.We have declined. What may have been pragmatically desirable at the outset of a three day hearing was not such at the outset of a hearing that cannot possibly last more than a day. There are plainly no cost savings to be made in tackling matters in that order.Furthermore, there is plainly a good logical basis for tackling the matter as we have so far set it out in that judgment, in as much as the issue as to employment does not arise unless certain findings are made in particular as to whether or no there was a dismissal. We return to this particular problem later on in this judgment. Suffice it to note that we proceed immediately to so much of the appeal as relates to what we have defined as the first head.Dealing with the submissions made by Miss Rose, we start by drawing attention in emphatic terms to the respective roles of the Industrial Tribunal and of this tribunal. It is the role of the Industrial Tribunal to carry out the functions of jury, to see the witnesses, to assess them and then in accordance with the burden and standard of proof to draw inferences and to make findings. It is the function of this tribunal to resolve appeals on matters of law. We have therefore two entirely separate functions. All this is trite law. But we are acutely conscious that there are present individuals concerned in this matter who will have never been to this tribunal before, and who deserve that explanation of our role and of our perception of the role of the Industrial Tribunal.Given the respective roles, the ability of this tribunal to interfere with respect to findings of fact is very limited indeed. The matter was well put by Mummery J (P) in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 at 443. His words merit repetition:
" Whenever an appeal is based on the perversity ground, this Tribunal must be extremely cautious not to conclude that the decision of the Industrial Tribunal is flawed because the Appeal Tribunal would have reached a different conclusion on the evidence or thinks that another Industrial Tribunal would have reached a different conclusion on the evidence. An appeal should not be allowed on this ground simply because the Employment Appeal Tribunal disagrees with the Industrial Tribunal as to the justice of the result, the merits of the case or the interpretation of the facts. This Tribunal should only interfere with the decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is `irrational', `offends reason', `is certainly wrong' or `is very clearly wrong' or `must be wrong' or `is plainly wrong' or `is not a permissible option' or `is fundamentally wrong' or `is outrageous' or `makes absolutely no sense' or `flies in the face of properly informed logic'. This variety of phraseology is taken from a number of well-known cases which describe the circumstances in which this Tribunal (and higher courts) have characterised perversity. The result is that it is rare or exceptional for an appeal to succeed on the grounds of perversity. The reason why it is a heavy burden to discharge is that it has been recognised by those with wide experience and practical wisdom that there are many factual situations arising in the field of industrial relations, including sex discrimination, in which different conclusions may be reached by different tribunals, all within the realm of reasonableness. It is an area in which there may be no `right answer'. The consequence of this approach, also approved in cases of high authority, is that it is not appropriate or fruitful to subject the language of the decision of the Industrial Tribunal to `meticulous criticism' or `detailed analysis' or to trawl through it with a `fine-tooth comb'. What matters is the substance of the Tribunal's decision, looked at `broadly and fairly' to see if the reasons given for the decision are sufficiently expressed to inform the parties as to why they won or lost the case and to enable their advisers to identify an error law that may have occurred in reaching the conclusion."
Turning then to the extended reasons, we are entirely satisfied that the issues arising under Head One were decided by the Industrial Tribunal on the basis of its assessment of the witnesses that it saw and heard.Having had that experience of seeing and hearing, they expressly preferred the evidence of Mr and Mrs Spells where such conflicted with the evidence of Mrs Dean. They thus rejected the evidence as to the earlier incidents were alleged, and commented that the circumstances of the second such did not in any event raise an inference of sex discrimination. As to the kiss, they were not satisfied that it was not consensual. As to the dismissal, they found that the telephone conversation did not give rise to such.Crucial to those findings, was, we reiterate their findings as to the witnesses that they preferred. Thus it is dealing with Mr Spells, they put the matter thus:
"39. ... We think for understandable reasons that Mr Spells is perhaps being somewhat economical with the truth when he says that he was kissing the applicant Good Night but we think in the main he has given truthful evidence to the tribunal."
As to Mrs Spells, they put the matter thus:
"38. We naturally treat the evidence of Mrs Spells with the utmost caution because of course she has to defend her corner, but that said, we found her a credible witness and many of the things that she said and the way in which she said them has a ring of truth. We do not propose to go into every detail but she was quite open, for example, about her belief as to what had gone on during the kiss and at the time and indeed now her perception was that this was a consenting man and woman engaging in a kiss. We think that her account of the last important telephone conversation is that one to be accepted namely that her response to Mrs Dean's question was "Its up to you.""
As to Mrs Dean, they said that her credibility was:

"37. ... open to some doubt."

They did so because amongst other reasons they were impressed with two witnesses who had given evidence before them, Mr Cain and Mrs Raby. They put the matter thus:
"37. ... The witnesses that impressed us most were undoubtedly Mr Cain and Mrs Raby and the tribunal accepts that the versions given by these two people are undoubtedly true and analysing that evidence we have to conclude ... that the applicant Mrs Dean, because of her actions whilst working for Mrs Raby, amounted to being less than honest."
Having thus made those findings, they summarise the matter essentially in this way:
"40. As to Mrs Dean we have already commented on the impact of the evidence of Mrs Raby and we do think that on balance we prefer the evidence of Mr and Mrs Spells to her evidence and that being the case we have to conclude that she has not made out her case in relation to the allegations on the balance of probabilities."
All those we emphasise are the findings of the Industrial Tribunal acting as a jury, that is, undertaking the task that it is put in place to achieve.We cannot ourselves that approach in any way. True it was perhaps unfortunate that in to this hearing relating to some very specific events in 1994, there was a certain amount of extraneous material introduced, namely some material relating to the earlier history of Mr Spells, namely further some material relating to the earlier history of Mrs Dean as spoken to by Mrs Raby. It is to be noted that Mr Myerson on behalf of Mrs Spells sought to have the earlier material with respect to Mr Spells excluded, but found himself opposed successfully by Mr Brewer then representing the applicant. The scene having been set as it where for the introduction of other material, it is hardly surprising that Mrs Raby's material came in to complete the overview of the matter. As had been conceded, this not being a criminal trial it was entirely open to the tribunal so to receive such material and to deal with it in a judicial manner. As far as we can see, whilst we say it might have been arguably better not to have any of this in, once it was in it appears to have played a perfectly proper part in the resolution of these factual issues.How then can this tribunal ever condemn this as perverse having regard to the citation already made from Stewart v Cleveland Guest (Engineering) Ltd . As to this, Miss Rose has tried valiantly. But with every respect it would be quite astonishing if she was successful, and she has not been. Every single argument that she raised could have been raised before the Industrial Tribunal as a jury. Probably was so raised and if so, was properly raised. The problem is that we are not the Industrial Tribunal and we are not a jury. Thus it is with every respect that all of the arguments have fallen on dead ground. We emphasise as was emphasised in the citation from Mummery J, whether we would have made the same findings hearing the same evidence we simply cannot say, but it is not our job to say and that is essentially the point.That therefore means that the appeal so far as it relates to the issues arising under Head One fails. That further means that there is no factual basis at all for an appeal under Head Two. Thus it is that the appeals against Mr and Mrs Spells and against Century Inn must be dismissed.We do as a tribunal have something more however to say about this matter. This morning we have been confronted by this forlorn attempt to present what is dissatisfaction with fact as a question of law. This is a situation that is very familiar to this tribunal. It regularly however arises when it has unrepresented appellants before it. This tribunal attempts to resolve such appeals at minimum expense to the parties and to the public by listing them for preliminary hearing with only the appellant present. Had this appeal been so listed it certainly would not have gone forward for a full hearing with the respondents present. We do not of course blame the parties for the failure of this tribunal so to list this particular appeal. The decision about listing was entirely one for this tribunal and if there was an error it is this tribunal that made it. But what we do say is that this fundamentally flawed appeal was brought here under the auspices of the Equal Opportunities Commission who should be as well able as any body in the country to identify what is and what is not a point of law. Indeed it may well be that it was the participation of the Equal Opportunities Commission and the understandable belief that that organisation could spot a point of law that did in the event propel this to a full hearing, notwithstanding the lack the essential state of this appeal. We hasten to add that latter observation is mere speculation on our part.All this provides a view point from which to urge the Equal Opportunities Commission to give better consideration to the merits of assisted appeals. They may be able to afford assisting an appeal such as this. But the public cannot afford the legal aid expended in responding to it and no doubt Century Inns have equally strong views as the expenditure that they have had to incur, again by way of response.More importantly, there is the appellant Mrs Dean. She may well think that she has an appeal, why else she may ask herself are we all here if I have not one. In the event however, as I pointed out to Miss Rose at an earlier stage in this matter, were Mrs Dean a private client she could not possibly be responsibly advised to come here to seek to appeal issues of fact before this tribunal, not least because if by some miracle she was successful she would then have to go back to have the whole of this miserable matter re-litigated again before another Industrial Tribunal some time later this year or even next year. Manifestly nobody could have advised her to undertake that particular course at her own expense.Further and finally, there is this tribunal. A day spent repelling points of fact could just have easily have been spent resolving points of law in another matter, that is in justifying public expenditure in us.True, at the back of this there is an alleged point under Section 82(1). But how can this tribunal deal with it? It does not arise; any findings we might make are obiter and therefore of no value and were they to be against Century Inns our views could not then be atested on appeal.These are strong remarks to make and we have made them having had careful joint consideration to ensure that they express joint feelings.It would be nice to think that our concern with this matter has a response from the Equal Opportunities Commission, that is that they have a look at this case. With so many worthwhile cases for that organisation to assist, and such funds as it has at its disposal, why expend effort in pursuing the demonstrably unmeritorous.

*********************************************

MR JUSTICE HOLLAND : In this matter we now have to adjudicate upon applications made by the successful respondents first, second and third for costs.As to this, we have first of all rightly been referred to Rule 34(1) Employment Appeal Tribunal Rules 1993 which so far as material is as follows:
"34.-(1) Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings."
In the course of submissions before us the respondents invited this tribunal to focus on the words "other unreasonable conduct in bring or conducting the proceedings." It is upon that aspect that we have again concentrated during quite a prolonged retirement, reviewing what we believe to be the relevant factors. In the end we draw attention strongly to that which we felt constrained to say at the end of our judgment as to the merits. Having regard to that which was said, and to the views there expressed, we rule in the end that the respondents do have a good case for the payment of costs by the Equal Opportunities Commission and we so order.We would put the matter on a little more detail than that.First of all so far as the third respondents, Century Inns are concerned, we have noted that they are privately funded and we have noted that so far as the appeal laid against them it was speculative in the extreme. It would seem to us that their case for costs is a very high one indeed.Turning then to the case respectively put on behalf of the first and second respondents, we have again considered very carefully their position. We have taken into account the point brought to our attention by Mr Myerson himself, namely that the order we make is in a sense ordering one part of the public funds to go to the other part. But with respect to him, we are quite satisfied that that is a bit too simplistic. The fact is that the Legal Aid Fund is an identifiable fund and is no way unlimited, that the whole function of the Legal Aid system depends upon those who are financed by the Legal Aid seeking to conduct litigation with the same rigorous approach that they would do if they were appearing for private clients. Hence, when Mr Kelly and Mr Myerson stood up they very properly pointed out that they were obliged to make the application under the Legal Aid Fund, and absolutely right too. We can see in the end no real reason why the Legal Aid Fund should not have orders in its favour. The last thing we wish to convey to that fund is any impression that their support for parties to this tribunal will be regarded as simply open-ended, with no prospect for ultimate redemption if they happen to support what has proved to be a very good case indeed.The one further matter that we want to say and say very forcefully is this. In turning to the submissions made by Miss Rose in response, that which weighed strongly with us and which accounts for the delay in arriving at a decision, was her submission that in this tribunal findings as to unreasonable conduct are not frequently made and that there is a high threshold. Thus far, if we may so in respect, we listen very carefully and it is on that part that our debated has centred. She will forgive us, however, if the point that perhaps made ex improviso, namely that there should be some gesture in favour of her clients because this tribunal of its motion did not pick out the essential weakness of her case by listing it for a preliminary hearing and there dismissing it. She will forgive us if that particular point has not only fallen on bad ground, but it is emphatically rejected. It is not the function of this tribunal as a tribunal to, as it were, act as a long stop for the Equal Opportunities Commission. It is no good coming to this tribunal at this stage and saying in effect `you should have stopped us from going on.' This is not this tribunals function at all. This passes the buck quite unacceptably. It is the function of the Equal Opportunities Commission as with any other responsible party to heed what the jurisdiction of this tribunal is, and to confine appeals to such as fit in with that jurisdiction. Of course this tribunal has of its own volition tried for the benefit of the public to devise and put in to course a system that is designed to weed out cases. As we ventured to hint in the course of the judgment, it is not something that this tribunal would normally would think of exercising when it is spotted that a body like the Equal Opportunities Commission was assisting the progress of the appeal. We know not whether that had any influence or not in the event, but it would not surprise us if that were the case. If the Equal Opportunities Commission is in an event dubious as to the weight of its appeal, and if it wants, as it were, to test the water, then it is very easy for the Equal Opportunities Commission to draw this to the attention of this tribunal, to the problem that it sees and to ask for the case to be listed for a preliminary hearing and we are in no doubt that this tribunal would oblige. At this stage of the argument that we have identified has, we firmly say cut no ice.Therefore the orders are for costs to be taxed if not agreed.