Edwards v London Borough Of Brent [1999] UKEAT 1503_98_1702

EAT

Edwards v London Borough Of Brent

[1999] UKEAT 1503_98_1702 · 1999-02-17

JUDGE PETER CLARK :

The Appellant, Ms Edward, presented two Originating Applications to the Employment Tribunal. In the first, presented on 2 October 1997, she alleged racial and sexual discrimination on the part of her employer, the Respondent London Borough of Brent. In the second, presented on 1 December 1997 she alleged breach of contract, a claim later withdrawn and victimisation.

Those consolidated complaints came before a Tribunal sitting at London (North) under the chairmanship of Mrs M H Don. By a reserved decision promulgated on 19 October 1998, the Tribunal dismissed both complaints. Against that decision Ms Edward now appeals.

This is a preliminary hearing held to determine whether the appeal raises any arguable point of law which ought to proceed to a full inter partes appeal hearing. Before adjudicating on that issue, two questions arise on which we require the assistance of the Tribunal Chairman.

By her notice of appeal and the skeleton argument, developed in oral submissions before us by Mr Barber on her behalf, the Appellant contents;

(1) that the Tribunal failed to make a necessary finding of fact, and

(2) made a material finding of fact unsupported by, and indeed contrary to the evidence in the case.

Both contentions, if made out, are capable of amounting to errors of law on the part of the Tribunal. See, respectively, Chapman v Simon

[1994] IRLR 214

and Piggott Bros & Co. Ltd v Jackson

[1992] ICR 85

As to the first point, it is submitted that evidence was led from the Appellant herself and a Mr Scott concerning two other employees, Terry White and Mark Platt. That evidence, Mr Barber tells us, was designed to show that the Appellant was less favourably treated than Mr White and Mr Platt, both white males, who were accused of financial irregularities in the course of their employment with the Respondent. Whereas the Appellant was suspended as part of the disciplinary proceedings brought against her they were not, and unlike the Appellant no disciplinary sanction was imposed on them.

It is said that this difference in treatment arose as a result of the Appellant's first complaint to the Employment Tribunal, a protected act, and constituted victimisation under both the sex and race discrimination legislation.

We can see no reference to this comparison in the pleadings, both the Originating Application and Further and Better Particulars, however Mr Barber tells us that the point arose as a result of discovery and we do see that at paragraph 1 of the Tribunal's Extended Reasons they record that it was maintained that white and/or male employees were treated more favourably than was the Appellant.

For the purposes of dealing with this point in the appeal we would invite the Chairman to provide her notes of the evidence given by the Appellant and Mr Scott on the one side, and the Respondents' witnesses Terry Gardner and J Bussey which touches on the references to both Mr White and Mr Platt.

As to the second point, the material finding appears at paragraph 22 of the reasons where the Tribunal say:

"....... We find, as a fact on the evidence, that the delay in bring the grievance to a conclusion was unavoidable in that it is clear that the Respondent's procedures provide that, if there is a grievance procedure and a disciplinary procedure running concurrently, the disciplinary procedure should take precedence. ......."

Mr Barber submits that there was no evidence to support that finding of fact; he submits that such finding was contrary to the Respondent's written procedures, although we are told that only the disciplinary procedure and not the grievance procedure was in evidence before the Tribunal.

In these circumstances we should be grateful if the Chairman would provide us with her comments by reference to the oral and documentary evidence that was before the Tribunal, on this particular allegation.

Once the Chairman's comments are received, I shall give a further direction as to the future conduct of this appeal. In particular, whether this preliminary hearing is to be resumed or the matter proceeds directly to a full hearing.