David-John (The Llewelyn Surgery) v Girling [1999] UKEAT 1419_98_2203

EAT
David-John (The Llewelyn Surgery) v Girling
[1999] UKEAT 1419_98_2203 · 1999-03-22

JUDGE PETER CLARK :

This is an appeal by the respondent below, Dr David-John against a decision of an Employment Tribunal sitting at Stratford on 22nd and 23rd September 1998, upholding the applicant, Mrs Girling's complaints of unlawful sex discrimination and unfair dismissal. That decision, promulgated with extended reasons on 23rd October 1998, made an award of compensation totalling £22,210.12 in favour of the applicant against the respondent. We shall refer to that decision as "the substantive decision".The applicant commenced these proceedings by an Originating Application presented on 22nd January 1998. She there alleged sex discrimination and stated that at that date her employment was continuing, although she raised a query as to her employment status in circumstances where she said that she had received no pay since the end of October 1997. It appears that at a directions hearing held on 27th May 1998 the applicant was given leave to present a further Originating Application out of time. She did so on 8th June 1998. That second application, Mr Chesney accepts, raised the issue of unfair dismissal. There was no appeal against that order, which was contained in a letter from the tribunal dated 9th June 1998.The applicant commenced employment at the Llewelyn Surgery in Waltham Abbey, Essex on 18th August 1984. She was a secretary/receptionist.In December 1993 the respondent took over the practice and the applicant remained in the employment.On 1st September 1996 the applicant's husband was diagnosed as being terminally ill with cancer. He eventually died on 29th January 1997. Thereafter, it was the applicant's case, that she was subjected to a campaign of sexual harassment by the respondent, something which he vehemently denied. The tribunal preferred the applicant's account. Examples of this campaign included sending her a birthday card on 20th March 1997 with the inscription "love never fails and I love you." It was her evidence that the David-John family never celebrate birthdays or send greeting cards. The card was signed by the respondent only and not his wife, who also worked in the practice. At around that time the respondent gave the applicant an envelope containing a scripture entitled 'Love'. These, said the tribunal, and other unwanted and distressing messages of love and the like, were also sent. On another occasion the respondent attempted to kiss the applicant on the cheek, however, she turned away saying "please do not do that". On another occasion the respondent visited her home and finding her not in, waited for at least 15 minutes and left a set of books for her. He subsequently claimed that he had been visiting a patient in the area, which struck the applicant as unlikely as she lives in Hertfordshire and the majority of his patients lived in Essex. By now, said the tribunal, the applicant felt seriously threatened. She asked the respondent not pay her attention and told him that she did not want him to telephone her or visit her at home. His reply was that he had "a clear conscious with God." He did stop telephoning her for some time, however, he said that he was hurt that she did not want him to show affection or telephone her at home. He said that he meant nothing by it, that he truly loved her and like God, if love is not returned than that love dies. She made it clear that she was not interested in any relationship with him. She was totally devoted to her late husband and missed him terribly. Other incidents included an invitation by the respondent to the applicant to attend a seminar with him and to go for dinner with him, to which she said that she would only go if Mrs David-John attended. That matter was not raised again.On 10th October 1997 the respondent telephoned the applicant at home, having obtained her new telephone number, she having earlier changed it, and asked her if she had left him a note? That note anonymously expressed love for the respondent. The applicant denied being the author and said that she would show it to Mrs David-John. The tribunal found as a fact that she was not the author of that letter. On reading the note Mrs David-John said that she would speak to her husband and ask for a divorce. Later that day the respondent told the applicant, in front of his wife and their 13 year old daughter, that he was fond of her and of "many people more so that I am of you" to his wife. During the next week he told the applicant that he was very disappointed in her and felt betrayed by her informing his wife of the conversations between them.On 24th October 1997, the applicant was summoned to the respondent's room and told that she had acted in an immature way and that he thought it better for him, his wife, members of staff and the patients if she took leave on full pay until the matter had been sorted out. Thereafter, she took the advice of a solicitor who wrote to the respondent. The applicant then received letters in reply dated 10th November 1997 informing her that her allegations against the respondent were being investigated; and, secondly, accusing her of making personal telephone calls from work and being absent from the office during working hours. The applicant received those letters on 15th November, by which time her solicitor's letter of 14th November had been sent. This was the first time that any complaint had been made about her conduct.On 31st October, she received her wages which as usual had been paid into her bank account. On 21st November the applicant's solicitor sent a further letter to the respondent who replied on 28th November, a letter which the tribunal found was very similar in style and format to the letter which the respondent alleged he found in his tray and had attributed to the applicant.At the end November 1997 the applicant received her wages, but they were £50 short. At the end of December she received no salary and wrote to the respondent on 5th January 1998 asking what was her current employment status and why her wages had not been paid. His reply, dated 21st January was as follows:
"By your own actions of leaving behind the "Surgery Keys" and by your engaging the solicitors "Breeze and Wyles" and by your threatening and impolite ways, you have demonstrated the lack of respect, trust and decency which are essential in any "working environment" and you clearly showed that you are after making easy money. But only succeed in terminating your employment with the surgery."
That letter went on to repeat allegations of misconduct and accused the applicant of blackmail, slander, defamation, negligence towards patients, propaganda, ruining the business environment in the surgery, being bossy and informing her that her nickname in the surgery was 'bitch'. The tribunal found that these allegations were put forward by the respondent to try to divert attention away from the allegations the applicant was making concerning his sexual harassment of her.The tribunal on those facts found that the applicant had been dismissed on 30th November 1997, which was the last day in respect of which she received wages. On 22nd January 1998 she presented her first Originating Application.On those facts the tribunal found, applying the approach of the Court of Session in Strathclyde Regional Council v Porcelli [1986] IRLR 134 , that there was here sexual harassment amounting to unlawful discrimination on the grounds of the applicant's sex. The respondent's behaviour towards the recently widowed applicant was disgraceful.Further, that she had been unfairly dismissed on 30th November 1997. That dismissal had taken place on the last payment of wages. The reason for dismissal, so the tribunal found, was that the applicant had consulted solicitors concerning her job status and the unwanted attentions of the respondent. That was not a potentially fair reason for dismissal.Finally, they upheld her complaint in respect of £50 which they found had been unlawfully deducted from her wages.On 6th November 1998 the respondent applied for a review of the substantive decision. That application was summarily dismissed by the Chairman by a review decision dated 30th November 1998 on the ground that it had no reasonable prospect of success: Rule 11(5) of the Employment Rules of Procedure 1993 .Meanwhile, by a notice dated 19th November 1998 the respondent appealed against the substantive decision.The original grounds of appeal were settled by Mrs David-John, the respondent's wife, who had appeared on his behalf below and had herself given evidence before the tribunal as did the respondent.The appeal was listed for preliminary hearing today and on this occasion the respondent is represented by Mr Chesney, a solicitor now instructed on his behalf.Prior to the hearing Mr Chesney wrote to the EAT, first on 10th March and then on 18th March 1999, seeking leave to amend the grounds of appeal to substitute three grounds for the original grounds. The new grounds (2) and (3) develop the original Notice of Appeal grounds, and we grant leave to amend in those terms. The first ground of appeal raises a different question.In the letter of 10th March 1999 it was contended, in the first ground, that the respondent had not expected unfair dismissal to be an issue at the substantive hearing on 22nd and 23rd September 1998. However, at that stage Mr Chesney had apparently not been provided with a copy of the second Originating Application, which had been consolidated with the first prior to the substantive hearing and to which the respondent had lodged supplementary grounds for resistance in a document dated 9th September 1998. Accordingly he revised the first proposed amended ground of appeal to contend that the tribunal Chairman at the directions hearing on 27th May 1998 improperly exercised his discretion in allowing the applicant to lodge a fresh Originating Application out of time alleging unfair dismissal. Consequently the substantive hearing tribunal was wrong to hear the second Originating Application and to make a finding of unfair dismissal.Having developed that argument it became clear that this was an attack on the order made at the directions hearing, and promulgated on 9th June 1998. It follows that the original Notice of Appeal, let alone the amendment raising the point on 18th March 1999, was out of time in relation to the directions order. No good reason has been advanced for the respondent's failure to appeal against the directions order in time and, applying the principles in UAE v Abdelghafar [1995] ICR 65 , we shall not permit this late appeal against the directions order permitting the applicant to present her second Originating Application. Accordingly we refuse leave to amend the Notice of Appeal to add the first ground contained in Mr Chesney's letter of 18th March 1999.Turning the remaining grounds, (2) and (3), the second ground relates to the tribunal's finding at paragraph 7 of their reasons that the applicant found the birthday card strange, especially in the knowledge that the David-John family did not celebrate birthdays and never sent greetings cards. Mr Chesney submits that the applicant was not competent to give that evidence, and the tribunal should not have accepted it. There are a number of difficulties with that submission on appeal. The first is that issues of fact are for the Employment Tribunal and not for us. Secondly, we are told that neither the respondent nor Mrs David-John challenged that proposition in evidence before the tribunal. Thirdly, that formed only a part of the sequence of events which we have recited in this judgment and which led to the tribunal below to conclude that the respondent not acting out of Christian motives towards the applicant, but was sexually harassing her.The third ground of appeal is that the tribunal did not take into account the biblical context of the greeting in the birthday card. We think that they did. At paragraph 22 of their reasons the tribunal record the respondent's case that he had not sexually harassed the applicant but had indulged her in true Christian love. They rejected that case.In these circumstances we have concluded that this appeal raises no arguable point of law to go forward to a full appeal hearing. Accordingly, it must be dismissed.