Pennington v Scarborough & N E Yorks Healthcare Trust [1998] UKEAT 1038_98_1112

EAT
Pennington v Scarborough & N E Yorks Healthcare Trust
[1998] UKEAT 1038_98_1112 · 1998-12-11
MR JUSTICE LINDSAY : We have before us as a preliminary hearing the appeal of Mr Kevin Mark Pennington in the matter of Pennington against the Scarborough and North East Yorkshire Healthcare Trust. Mr Pennington appeals against a decision that was promulgated on 23rd June 1998. He appeared before the Industrial Tribunal in person, as has done today, and has addressed us with some skill and moderation, and has prepared papers which were lodged with us.The Industrial Tribunal was under the chairmanship of Mr P Hildebrand and met at Leeds. The decision emerged at the end of a hearing of some four days spread between January and March 1998. The decision which was promulgated, as we mentioned on 23rd June 1998, was this:
"The unanimous decision of the tribunal is that the Applicant's claim in relation to unfair dismissal, equal pay, sex discrimination and victimisation, fail and are dismissed."
The Trust has been represented before the Industrial Tribunal by their Personnel Director, Mr Henderson.The Industrial Tribunal's findings of fact are set out from page 1 of the decision to page 10, some eight to nine pages of quite close typing. So there is quite a body of fact found in the matter. The Industrial Tribunal then directed itself on the law on four broad subjects of complaint - unfair dismissal, equal pay, sex discrimination and victimisation. Of those only three are now in play because Mr Pennington indicated that there is no appeal on the equal pay subject.Taking those subjects one by one and looking first, therefore, at sex discrimination, the Industrial Tribunal gave themselves directions on the subject. They looked at the time bar point which results from s. 76(1) of the Act. The Industrial Tribunal form IT1 was received in August 1997. So far as concerns my copy I cannot read which day in August 1997, but it was received in August 1997. The earliest act capable of being complained of within s.76(1) would therefore have been an act which had been done in May 1997. Mr Pennington was actually dismissed on 22nd May 1997. The discrimination on which he chiefly relied was that he had received less favourable treatment than another and the comparator he selected was a Mrs Shimmin. The act asserted as representing a yardstick by which he was to be shown to be less favourably treated was Mrs Shimmin's promotion. That had occurred in October or November 1996. It was in view of that the Industrial Tribunal said in their paragraph 8:
"... It is therefore significantly out of time and it would not be just and equitable for the Tribunal to extend time to deal with this claim. The Applicant did not make out a claim of discrimination in connection with the matter of fact of his dismissal."
So that when they referred there to it not being just and equitable, they were not only saying that the complaint was out of time under s.76(1), but that it was not right to extend time under s.76(5). But, really, that short extract goes further than that. They were saying that even if sexual discrimination had formed some component of his dismissal then his claim failed because he had not made out any connection between discrimination and the fact of his dismissal.On the subject of sex discrimination we, examining the papers as best we can, detect no error of law. Mr Pennington will, no doubt, know that we are not looking at matters of fact. This is not a tribunal that rehears the facts of the case but looks at the case to see whether there are errors of law. On this subject, sex discrimination, we find none.The next subject at which we look is therefore victimisation. That was a claim within s.4 of the 1975 Act. Without reading the somewhat tortuous provisions of s.4, it applies when, broadly speaking, a complainant had been treated less favourably than others would have been in the same circumstances by reason of his having done a "protected act". What the Industrial Tribunal says on that is in their paragraph 6:
"... Section 2 of the Act applies s. 1 to men and s.4 deals with the victimisation which protects persons from less favourable treatment when they are victimised by reason of having brought proceedings or given evidence, or otherwise having done anything under or by reference to the Sex Discrimination Act. Allegations are also protected by s.4(1)(d). Section 6 of the Act applies the provisions to discrimination in the employment field."
The Industrial Tribunal concluded on the facts that neither the dismissal nor any treatment he received was connected with any alleged protected act. What they say on that subject is found in paragraph 9:
"The Tribunal considered next the question of victimisation raised by the Applicant. The Tribunal did not accept that the Applicant's dismissal or any treatment of him by the Respondent was connected with the reference which he made in memoranda in the latter part of 1996 alleging a claim of sex discrimination. The Applicant made this original claim in 1996 by reference to the application of flexi-time and the appointment of Mrs Shimmin. His subsequent treatment by the Respondent was not related in any way to the fact that he made those allegations. The Tribunal accordingly found that his claim of victimisation was without foundation."
If we ask ourselves is there, in that reasoning, an error of law, we are unable to find one.The next subject was unfair dismissal. On that the Industrial Tribunal directed themselves in paragraph 5:
"In relation to the law on unfair dismissal it is for the Respondent to show the reason for the dismissal. In this case it is the Applicant's conduct and some other substantial reason being the reorganisation of the Respondent's department. These are prima facie fair reasons for dismissal. ..."
Well, that is uncontroversial as a finding. The Industrial Tribunal was, in effect, surprised at the tolerance or patience of the Trust, perhaps even the weakness of the Trust, and they hold in their paragraph 11:
"... The Tribunal finds that the Respondents had substantial grounds for the various disciplinary stages undertaken by them and their level of responses were within the band of reasonable responses to those demands. ..."
The Industrial Tribunal went on to say that they had some concerns about the procedural standards of the Trust, but they did, having considered them, nonetheless go on to their conclusion:
"... Having raised those queries the Tribunal took those into account in assessing the overall fairness of the dismissal and did not find that deficiencies identified were sufficient to render the entire procedure unfair. The Tribunal accordingly find that the dismissal was for good reasons, being the conduct of the Applicant, and was procedurally fair. The sanction imposed was within the band of reasonable responses to the misconduct identified. The Tribunal did not therefore find it necessary to find in relation to the Respondent's second ground of justification for the dismissal being some other substantial reason. The Tribunal's conclusion was therefore that the dismissal was fair in this case and all the Applicant's claims accordingly fail."
Mr Pennington complains of the procedural deficiencies, but it is plainly the case from those quotations that the Industrial Tribunal considered the complaints but rejected them. It is essentially a matter for the Industrial Tribunal hearing the witnesses and assessing their credibility and taking a view of the strength of their evidence, to detect whether something such as the evidence received of procedural deficiency is such as to amount to true prejudice or not. Here, plainly, having considered the allegations of procedural deficiency, they took the view that nonetheless the dismissal was procedurally fair. That goes to procedure before the time of hearing before the Industrial Tribunal. However, Mr Pennington also complains that at the Industrial Tribunal itself there were procedural irregularities. In particular, he says that papers were produced so late on behalf of the Trust that that meant that in relation to the argument that he wished to present and the evidence which he wished to adduce he was at a disadvantage. But the classic way of responding to the late production of paper is to ask for an adjournment in order to meet the case as it emerges. Mr Pennington accepts that there was no such application. He was, I suppose, at a disadvantage in the sense that he was appearing in person, but even a person appearing on his own behalf can reasonably be expected, if he is faced with late paper, to make a request for an adjournment in order that it might be considered, and none such was made. We do not feel able to say that this is a case where there was such procedural irregularity at the hearing before the Industrial Tribunal itself that Mr Pennington was truly prejudiced to any material degree in the presentation of his case.Mr Pennington finally complains of perversity. It is, of course, recognised to be a very heavy burden on an appellant. Different cases put the test different ways. Some require the EAT to ask itself whether the conclusion reached by the Industrial Tribunal was a permissible option? Other cases ask whether the EAT reacts, looking at the decision of the Industrial Tribunal, by saying "my goodness that must be wrong". We do not feel that any such response is a justified response to the conclusion of this Industrial Tribunal set out, as it is, at considerable length. We cannot say that the Industrial Tribunal's conclusion was not a permissible option. Mr Pennington has sought to take us, and has taken us, to quite a number of specific points, quite often minor points of detail and relatively tiny errors in the papers. He says that the respondent employer had been brutal, had been arrogant and had been unjust. Those are, essentially, matters of fact that could and should have been ventilated below. This is not an opportunity to rehear the case as it should have been below. That sort of allegation does not point to any error of law, and, returning to that subject - whether we detect errors of law in the conclusion in the conclusions of the Industrial Tribunal - we find none. Accordingly, we dismiss the appeal.