Harris v Opus (Hrd) Ltd [1998] UKEAT 160_98_2207

EAT
Harris v Opus (Hrd) Ltd
[1998] UKEAT 160_98_2207 · 1998-07-22

JUDGE J HULL QC :

This is an appeal to us by Ms Margaret Harris. She appeals against a decision of the Industrial Tribunal sitting at Birmingham on 15 August 1997, under the Chairmanship of Mr Williams with two industrial members, who dismissed various claims which he brought against the Respondents, her employers, Opus (HRD) Ltd.Unhappily that firm has gone into liquidation. It is a creditors' voluntary liquidation, that is to say that it is one in which the company owes money which it cannot pay and we have been shown by Ms Harris a letter of 16 April of this year, in which an insolvency practitioner writes, as liquidator, to all creditors. He encloses a summary of the statement of affairs, and he says:
"You will note from the estimated statement of affairs that there is no prospect of a return to either preferential or unsecured creditors, after taking into account the costs of liquidation."
No doubt there may be security given to some well-organised creditors, such as the bank, but so far as the unsecured creditors are concerned, and that is the position which Ms Harris, unhappily, would be in if she were successful, there is nothing there. Indeed, she might be caught, in due course, by statutory provisions which entitle the liquidator to apply for a stay of proceedings on the basis that he might be put to expense and that that is a matter which should be dealt with in the liquidation.However that may be, for present purposes we must deal with the appeal which is before us, noting that there is no prospect whatever, so far as we can see, of Ms Harris ever receiving any financial or other relief in respect of her various claims.Her employment began in August 1991 with the Respondents who were concerned in supplying educational services to various bodies. She was an administrator and was employed in, she tells us, Bromsgrove and Worcester - the Industrial Tribunal found that it was in Worcester that she was employed in the end. I should explain, with regard to these various matters of fact, that we are a Tribunal purely concerned with points of law. We have no jurisdiction to go into facts and make findings of fact and we cannot hear a complaint on the basis simply that the Industrial Tribunal did not understand the facts correctly, or matters of that sort. The facts are for the Industrial Tribunal.As I say, Ms Harris was in employment, we have seen her employment contract, dated 13 September 1995, at p43 of our bundle. Starting at the beginning of last year she made a number of complaints to the Industrial Tribunal. On 15 January 1997 she presented her first complaint - they are known by their numbers - this one, the last three numbers were 284, in this one she complained of disability discrimination against her - I should explain that Ms Harris is a disabled person. She is not a well person, she has suffered from chronic kidney disease, or failure, and she has other disabilities or illnesses as well - She complained of disability discrimination and she also wished to complain that there had been discrimination on the basis that she was raising a Health & Safety matter, under section 44 of the Employment Rights Act 1996.Then the employers put in an answer to that complaint, saying that disability discrimination could not arise. They were exempt from the provisions of the Act because they, at material times, had less than 20 employees.As a result of these proceedings and, no doubt, the unhappiness which flowed from them, the employers suspended Ms Harris. They said they were doing that because there was a breakdown in the essential confidence between employer and employee but we are told, unhappily, the employers felt that because of the complaint that she was making against them. We are sorry to see that they thought it was necessary to suspend her but we know so little about the facts that we cannot comment further on that. It may be that they might have laid themselves open to some charge of victimisation in the circumstances, but there it is. She remained suspended after that.On 17 March Ms Harris presented another complaint, saying that she had not received an itemised pay statement as she was entitled to and there had been a breach of contract. Then, also on 17 March, she presented a third complaint, complaining that she had not enjoyed equal pay and conditions. In other words that there had been discrimination in that important respect on the grounds of her gender. Then she received on 22 April 1997 an answer to the first of those two IT1s to which I have referred.The Industrial Tribunal met on 28 May to consider various matters. First of all they considered the question of giving directions. They said all the applications were to be heard on the same day. They said that witness statements were to be prepared and exchanged not less than 14 days prior to the hearing:

"...these statements to form the evidence in chief of the witnesses."

and there was to be a common bundle of documents, in other words, one bundle which was to enclose all the documents which each party wanted.Those were very important directions. If the Industrial Tribunal is to do its job it must give directions of that sort to try and prevent waste of time and shorten the hearing. The witness statements which were to be prepared were to stand as the evidence which was to be given and then those witnesses would be called and cross-examined if necessary.They also considered on 28 May whether Ms Harris was entitled to pursue her claim under the Disability Discrimination Act. They found that at the material time there were fewer than 20 employees and they found, therefore, that the Respondents were exempt from complying with the Disability Discrimination Act under section 7 and they therefore in effect dismissed the first summons except in regard to the Health & Safety matter which Ms Harris wished to raise under that.Then there was a letter of dismissal on 5 June (p33 of our bundle) and under that Ms Harris was dismissed: "...we have reluctantly reached the decision to make redundant your current post", the employers say, having set out various matters to justify their contention that she was redundant.
"This is, therefore, your formal notice that your employment will cease on 11th July 1997 by reason of redundancy following the closure of the Worcester office."
We are glad to say that, whether that was right or not, Ms Harris tells us that she has received her redundancy money.Having received that, on 18 June (p29) Ms Harris launched yet another complaint, complaining of unfair dismissal and also asking for a written statement of her employment particulars. On 7 July the Respondents put in their answer to that.So this was, on the face of it, quite a complicated matter and it came before the Industrial Tribunal on 15 August. Their decision is at p6 of our bundle. They were chaired on this occasion not by Mr Tickle, who had heard the interlocutory matters in May, but by Mr Williams with two industrial members. The Tribunal started by finding that this rather difficult matter had not been attended to in accordance with the orders of their own Tribunal. They say this:
"On examining both parties on this matter it became clear that the respondents had made reasonable efforts to comply with the terms of the order, that is to exchange witness statements and produce a common bundle of documents. The applicant appeared," (Ms Harris) "to have ignored this order. The tribunal did not accept her explanation that ACAS had told her there was no need to comply with the order and the tribunal wished to place on record their displeasure that the applicant ignored the terms of the order."
We note that. It is not unnatural that they should be displeased because they had hoped that the matter would be presented tidily, to this extent at any rate, that each witness, if called, would simply have a statement which they would have read and any documents would be in this one bundle and could be referred to by that witness. That was not to happen.They then referred to the various complaints which were still outstanding. In connection with the first claim:

" Failure on the part of the respondent to provide itemised pay statement."

- they said, on the evidence which they heard, that there were pay slips and in their view, with the other documents, those provided a proper itemised pay statement. So that complaint failed.With regard to sex discrimination they said Ms Harris' claim was based on the fact that she was entitled to sick pay at full pay for the first month and half pay for the second month. She contended this was discriminatory because "the men in the company had better conditions than that". The Respondents produced evidence to the effect that the only man employed by the company at that time was the person who was managing director and, in effect, owned the company. There was no evidence of any term in the contract between that gentleman and the company that gave the managing director any better terms.What Ms Harris says about that is "that may have been true at the time, but earlier there had been other men employed and they had different terms." Of course there is a time limit for presenting claims for sex discrimination and the Tribunal left it like that; that the only contemporary male employee was a gentleman who appeared to be treated not in any way differently.Then there was unfair selection for redundancy. The Tribunal were quite satisfied that a redundancy situation existed. She was the only person working permanently out of the Worcester office and her sole raison d'être was to administer one particular contract; that had gone. What Ms Harris says about that is that, in fact, she also worked out of the Bromsgrove office. The Tribunal, as we say, were the tribunal of fact and it was up to them to consider the evidence and decide what the position was. That was their finding and Ms Harris complains of it.The Tribunal record that the employers had done their best, in their view, to provide her with alternative employment, asked her to apply for alternative jobs and she declined to do so.They then went on to the question of failure to provide a written statement of contract and they said they were satisfied that a written statement of contract was provided and "we reject her claim". We have seen, as we say, the contract (p43). It is dated 1995. It is a full contract.Then they go on to say with regard to breach of contract:
"the applicant could direct attention to no term or condition of contract that had been breached and the tribunal for themselves could not identify any such breach. We therefore dismiss this claim."
They went on to consider the claim about the Health & Safety at Work Act.
"Even if the tribunal could have given her a remedy for this we conclude that the claim [is] purely without merit."
They went on and said her complaints about the deficiencies at her place of work were without merit. They said she had chosen to go straight to the Health & Safety Authority rather than to her employers - the matter could readily have been put right.We look at the Employment Rights Act. It appears to be section 44 that is relevant, and that gives a right to an employee not to be subjected to any detriment if he raises certain matters of Health and Safety with the employer. The employer's case was, of course, that they had not subjected her to any detriment. It seems that what she was endeavouring to do, in the view of the Tribunal, was to get some relief in respect of this actual failure to have the central heating in proper working order at her place of work, which they found could have readily been put right.Those were the conclusions of fact of the Tribunal and Ms Harris has expanded on what she said in her Notice of Appeal. This is how it appeared to her, she said, "I was not allowed to give evidence. My evidence was not looked at as it should be," she told us, "because I had not produced a written statement. The case should have been adjourned." We do not know whether she applied to the Tribunal to adjourn it. The effect, inevitably, would have been even more disastrous because, of course, further expense would have been incurred and probably, by the time the case came back on, the employers would have been insolvent, but there it is. She says "I should have been allowed to bring evidence which I had not got. I had evidence, in a bundle, they would not look at it: it should all have been adjourned."It appears, from what we have been told - we have only heard Ms Harris on this - that the Tribunal were taking a fairly firm line about all this, perhaps, if you like, a tough line. They were saying "well, our orders have not been complied with. There is not "a single bundle of documents". There are not witness statements from Ms Harris and her proposed witnesses. We are not going to go around among the documents at her request and look at other documents. Her case was to be made in the way we have indicated."So, speaking for myself and, I think, my colleagues, I was concerned about whether she got a chance to have her say at all and she says "yes, I did give evidence to this Tribunal. I took the oath. I gave evidence on oath to the Industrial Tribunal" and I think she added she was cross-examined about that. Witnesses were called for the employers. There was Mr Trevitt and Mrs Griffin. They both gave evidence. Ms Phythian's witness statement is with the papers, and Mr Trevitt's. All that evidence was given to the Tribunal.The burden of her complaint is that the Tribunal were, in effect, saying "well, you cannot do that because you have not complied with our orders. We are not going to have you fishing out statements and bits of paper from other people's bundles; you have failed to comply with our directions and we are going to get on with this case and try it simply on the evidence which we have heard." That seems to have been their attitude. She says "the Industrial Tribunal did allow me to make my points and they saw a copy of my wages slips, but the Chairman would not let me go to their evidence because I had not prepared my witness statements."It seems to us that what she is saying is that there were a number of documents available in court in the other side's bundles that she wanted to refer to and normally we would certainly hope that an Industrial Tribunal would not stand on any technicality and would allow a party to go and look at any documents which were in the Tribunal room. But we have to bear in mind that Tribunals are anxious, in everybody's interest, to shorten their proceedings and complete them in a summary way.This Tribunal had given orders which had been flouted. It is open to a Tribunal to take a severe view of that and to say, "very well, if you are not going to comply with orders we are not going to help you. We are here to do justice to both sides. Think of the injustice to the employers of being brought back here simply because you, Ms Harris, have not complied with our orders. We are going to take a robust line about this." It does seem that that is what this Tribunal was doing and, within limits of justice, a Tribunal is entitled to take that approach. The duty is laid on them, not on us, by Parliament to make such inquiries as they think right and they are not embarked on an indefinite and unlimited inquiry; no litigant is entitled to ask a Tribunal or Court to go on an unlimited inquiry. A Tribunal is always entitled to set limits to its inquiry and say "we think that we have heard enough and we are not going to go wider than we have been going."It is the sort of case in which we might be anxious to hear the comments of the other side on certain of these points which have been made, because we have no doubt that Ms Harris is here in perfectly good faith to give us an account of matters which have disturbed her and left her with a sense of injustice. We have to try and see both sides. There is, in fact, no prospect whatever of the employers attending here, whether by their directors or their employees or by their liquidator, there is simply not going to be anything of the sort happening. So we shall not get that assistance. Furthermore, there is no prospect whatever, so far as we can see from this letter [16 April] of Ms Harris obtaining any useful relief in respect of any of these complaints. We therefore have to consider whether there is anything here in which we should, in our discretion, find that there are fairly arguable points. We are inevitably affected by the feeling that we cannot do anything, with the best will in the world, which will actually help Ms Harris.Having considered the matter as carefully as we can, bearing in mind what is said by the Tribunal itself, bearing in mind what Ms Harris has told us about how she did indeed give evidence, and the Tribunal heard a lot of other evidence, and she was not prevented from giving her evidence: we think that the Tribunal was not, as a matter of law, to be criticised for failing to grant an adjournment in the circumstances and was, we think, on balance, justified - as it was regulating its own procedure - in saying that it would not go wider than it had gone and saying that they were able to reach, on the basis of their inquiries, conclusions adverse to Ms Harris in the way that they did.We are sincerely sorry to hear from Ms Harris that she is left with this sense of grievance. It may well be that the justice which she received and the other party received can be described as 'rough justice' but we do not think it can be said that it was injustice in respect of which we can properly give leave for this appeal to continue any further. We have heard Ms Harris in person. We are grateful to her. We all say that we are not prepared to allow this appeal to go any further and we must dismiss it at this stage.