Broadbent v Wirral Borough Council [1997] UKEAT 753_97_1710

EAT
Broadbent v Wirral Borough Council
[1997] UKEAT 753_97_1710 · 1997-10-17
MR JUSTICE MAURICE KAY : This is a preliminary hearing of an appeal by Ms Broadbent from an Industrial Tribunal hearing in Liverpool which ended on 5th March 1997.Ms Broadbent had been employed from October 1995 until 3rd April 1996 in the respondents' finance department as an investment officer. She was involved in the running of the Merseyside Pension Fund for local authority employees.There was an Investment Panel that decided upon the allocation of assets in the pension fund. It had amongst its members representatives of Hambros Bank and Tilney, a firm of Liverpool stockbrokers. The final decision on changes in the allocation of assets rested with Hambros, but others on the panel were able to offer advice.The circumstances which resulted in Ms Broadbent's dismissal arose out of a conversation which she had with a Mr Roe-Eley, a director of Tilney & Co, and a Mr Williams-Hughes, an equities analyst. We should refer to the Industrial Tribunal's findings as to what transpired in that conversation. They found that it had taken place on 21st February, initially between Ms Broadbent and Mr Roe-Eley who were joined later by Mr Williams-Hughes. The findings of the tribunal proceed as follows:
"4. (c) ... The applicant wanted more investment in funds in the USA. Tilney were keen on investing there, too, but the others on the Panel were, as Mr Roe-Eley explained to her, neutral or negative on the matter. He further said that Tilney would be glad to give her guidance on investing in the USA, but that a balanced view must be formed and that she should consult other advisors on the Panel who did not share Tilney's belief in American investment. He ran through with her a Tilney presentation called US Mid Cap. Their discussion progressed. (d) It became clear to Mr Roe-Eley that the applicant's real objective was to gain Tilney's help in influencing Hambros, the Fund's asset allocator, to increase investment in the US. When he demurred, she said that Hambros were keen to generate a higher level of brokerage commission from the Fund; she saw an opportunity to offer them business in the hope that it would sway their asset allocation decision. Mr Williams-Hughes asked:
"Just let me get this straight - you are going to try and influence Hambros' asset allocation by dangling the carrot of more US equity brokerage for them?"
. She replied:
"To put it crudely, yes"
. He then put it to her that the suggestion was unprofessional and she did not reply."The tribunal found that Mr Roe-Eley had assured Ms Broadbent of the integrity of Hambros personnel and told her "the very suggestion of offering equity business to sway the asset allocation decision undermines the whole Panel Meeting process". They also found that Mr Williams-Hughes asked Ms Broadbent whether she really meant to try and influence Hambros equity allocation by offering business at which point she made no reply.The case for the respondents was that the contribution of Ms Broadbent to that conversation was thoroughly unethical. The tribunal report that all the witnesses were unanimous that the suggestion made by Ms Broadbent was highly improper and such as to make it impossible to trust her.It seems from the tribunal's summary of Ms Broadbent's evidence that she did not wholly dispute making such a remark. It seems that her evidence was that any remark that she made, like the one attributed to her, was simply a "throwaway" made when she was leaving the meeting after the atmosphere had become unfriendly. In the event the Industrial Tribunal state in terms that they did not accept her evidence on this point and that on that as on all issues, they preferred the evidence offered by the respondents.In the event, Ms Broadbent was summarily dismissed; and her complaint to the Industrial Tribunal was that she had been wrongfully dismissed, that unlawful deductions had been made from her remuneration and that she had been a victim of sex discrimination. The Industrial Tribunal rejected all those suggestions. The basis upon which they did so was founded on their reasoned preference for the evidence of the respondents' witnesses.The Notice of Appeal referred only to the finding in relation to sex discrimination and stated:
"... being a highly technical complaint in a much misunderstood professional field of investment management it was not appreciated by the Tribunal."
Earlier this month Ms Broadbent produced a skeleton argument for the tribunal, and as we construe it, it was mainly directed to the assertion that she had been dismissed for something, whereas a male colleague, a Mr Burrows, had not been dismissed for something similar. It seems to us that to the extent that the appeal was intended to reflect that assertion, it had no prospect of success because the Industrial Tribunal found in terms that what Mr Burrows had been involved with was of a totally different kind and had not had any improper connotation involving improper influencing of the allocation of assets.When the matter was called on today, Ms Broadbent had the assistance of Mr Bryant under the ELAAS scheme. He of course appreciates that appeals to this Employment Appeal Tribunal are only sustainable if they raise issues of law, and he confined his submissions to two propositions. We deal with them in reverse order.He submitted that the whole basis upon which Ms Broadbent had been dismissed assumed that there had been mention of some improper dangling of a carrot of extra commission in the direction of Hambros. He said, on instructions, that in reality that simply was not the case and that if circumstances had taken their turn, then no such commission would have been earned by Hambros of a kind that could properly be described as extra commission. It was all something at that particular point in time which would have been conducted on a fee basis. In the circumstances, his submission seems to us to be this: that even if the tribunal were correct in finding that the conversation on 21st February took the form which we have described, it was in reality surreal nonsense, because of the underlying reality. We do not think that that is an arguable point at all. Whatever the underlying financial reality, it is obvious from the findings of fact made by the Industrial Tribunal that they were satisfied that a conversation took place in the terms which we have described; that that conversation was indicative of highly improper and untrustworthy remarks by Ms Broadbent; and that in view of such a manifestation the employer was entitled to dismiss summarily. Accordingly, we think there is nothing in that ground.Before leaving it, it is worth referring, as Mrs Marsland did in the course of argument, to the terms of the skeleton argument that was received by the tribunal only a week or so ago. In it Ms Broadbent, when dealing with the conversation that was alleged to have taken place, said this:"The applicant commented that this statement was a priori true since stock investing would inevitably follow any asset allocation change".That, it seems to us, makes it even more difficult for Mr Bryant, who had not seen this document, to advance this so-called point of law.The second matter which Mr Bryant sought to raise was a wholly new point. It was this: the tribunal hearing apparently spread over two days, 20th January and 5th March 1997. On all accounts, the important evidence related to the conversation between Ms Broadbent, Mr Roe-Eley and their colleague. Mr Bryant says on instructions, that on 5th March, but not on 20th January, the Chairman of the Industrial Tribunal disclosed that he was a friend of a man who was or is the legal adviser to Tilney & Co. The stockbrokers, as we have observed, are not actually parties to these proceedings. The Industrial Tribunal Chairman may have only then realised or remembered this connection or only recently discovered the place of employment or connection. We can only guess about that. Be that as it may, no application was made by Ms Broadbent nor by Wirral Borough Council to the effect that the Chairman should disqualify himself, nor did he feel that that was a necessary step.If this matter is to be raised now, it must be in a form which one way or another asserts bias on the part of the Industrial Tribunal. This Employment Appeal Tribunal regularly receives appeals which include allegations of bias. The phenomenon is so well known that for a long time there has been a set procedure for the pursuit for such allegations necessitating detailed particularisation, affidavit evidence and an opportunity on the part of the Industrial Tribunal to make observations on such allegations when they are made. None of that has taken place in this case. Nor, as we have observed, was any application made to the Chairman to disqualify himself. It seems to us that it would be wholly inappropriate to grant leave for an amendment to raise this issue in these circumstances now. Accordingly, we find nothing in the second of Mr Bryant's submissions.He made it clear at the outset this morning that he would limit his submissions to those two points, but said at the same time that Ms Broadbent would or might wish to add something's of a more general kind. We permitted her to do so, but we have to say that we find nothing in what she said that could possibly be converted into an arguable point of law in this tribunal.Accordingly, we have found no arguable point of law which might sustain this appeal. It would be inappropriate for it to go any further and it is hereby dismissed.