SOUTH WEST LOGISTICS v MISS L A COLLINGS [1999] UKEAT 333_99_2210

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 333_99_2210

Case No Appeal No. EAT/333/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

SOUTH WEST LOGISTICSAPPELLANT

MISS L A COLLINGSRESPONDENT

Before

Mr Justice Lindsay

Date 22 October 1999

[1]APPEARANCES For the Appellants MR STEPHEN DAVID WIGG (Proprietor) MR JUSTICE LINDSAY (PRESIDENT): We have before us by way of a preliminary hearing the appeal of Mr S D Wigg, who trades or has traded as South West Logistics. The appeal is in the matter Miss L A Collings v South West Logistics . The Tribunal hearing was on 28 January this year at Exeter under the Chairmanship of Mr P R Anderson and the decision was sent to the parties on 3 February this year. The unanimous decision of the Tribunal was this:

"(i) the applicant [Miss Collings] was unfairly dismissed and the respondent is ordered to pay to her compensation in the sum of £830.00; and (ii) the respondent unlawfully discriminated against the applicant on the ground of her sex and is ordered to pay to her compensation in the sum of £10,401.10 (inclusive of interest)."

Mr Wigg has appeared before us in person today. We have read the reasoning of the Tribunal and with, we hope, a proper degree of agnosticism, looking to see whether we could find some error of law. However, looking at the matter generally to start with, the decision appears to be careful and to be devoid of error of law. True it is that it includes an award of £10,000 for injury to feelings by reason of sexual discrimination and it might well be thought that that was, so to speak, on the high side, especially if Mr Wigg's evidence as to Ms Collings having from time to time relished sexual horseplay was given credence. But the quantification of compensation for injury to feelings is very much a matter in the province of the Tribunal as the fact finding body. They hear the evidence; they see the witnesses. They alone are fairly in a position to assess injury to feelings and what is proper to compensate it. We cannot say that the award of £10,000 is so high as to excite the response "Goodness that cannot be right". So to that extent we find no error of law on that conclusion.

[2]Mr Wigg complains, apart from complaining in a rather general way, in a more detailed way in a letter which he wrote to the Employment Appeal Tribunal on 16 February this year and which has been treated as, in effect, a Notice of Appeal. By way of paying respect to the matters that he has thus put in front of us we think it is right that we should go through the complaints that his letter makes. Thus, looking at our page 2 for example, one sees at Mr Wigg's item 4:

"At one stage – the Chairman on the 28 th Jan hearing had to be reminded by a fellow member [that] I was present and may want to ask questions."

However, a momentary oversight from a Chairman, even were it to be supported (and, of course, we have not yet asked for the Chairman's comments on that allegation) does not represent an error of law.

[3]Then, as to Mr Wigg's item 5, he said:

"I put forward evidence in the afternoon period regarding Ms Collings history but was again ignored."

It is plain that on at least one crucial point the evidence of Mr Wigg, although presented to the Tribunal, was not in fact believed. Thus, looking at page 7 of our papers, paragraph 12 says:

"As indicated in the letter of dismissal dated 15 August, the respondent suggests that the applicant had an attitude problem resulting in disruptive conduct at work, but it clearly states in its Notice of Appearance that it was her threat of Industrial Tribunal proceedings made on 12 August which was the reason for her dismissal."

The evidence relied upon by the Tribunal was otherwise. What they go on to say:

"On the evidence, and on the balance of probabilities, we find that the true reason was the applicant's constant complaining about the sexual harassment from which she was suffering and her agitation at Mr Wigg's failure to take positive steps to prevent it."

That was an area in which the evidence given on the part of the employer was not preferred. One cannot therefore say that where Mr Wigg's evidence is not expressly mentioned, it must have been ignored; it could well be, rather like that particular example, that it was born in mind but was disbelieved. Merely to assert that evidence was ignored, leaving the matter as general as that, represents no acceptable assertion of an error of law.

[4]Going back to Mr Wigg's letter, his third ground was:

"The decision was so rushed that evidence I submitted was supposedly read in the lunch hour!"

Mr Wigg will not know this but it is not at all uncommon for lunch hours at Tribunals to be spent reading material which quite often should have been supplied earlier, but has not been. If weight was to be given to this particular allegation of Mr Wigg he would really need to prove that the material which it was said would be read over the lunch hour could not possibly have been read over the lunch hour and hence would necessarily have remained undigested. But there is nothing that suggests that that is the case and there is no suggestion that the volume of paper that was presented to the Tribunal was such that it could not have been taken on board, so to speak, over a short adjournment. There is nothing here which suggests an error of law.

[5]The two remaining complaints are Mr Wigg's points 1 and 2. What he says is:

"On two occasions I advised the Tribunals in Exeter I could not defend the action against myself as I had no access to records due to my secretary (who keeps all records due to me living in a bedsit was away in New Zealand for December of 98 and Jan 99 period. On the December 10 th hearing I was informed by Mr Tickle that no date for proper hearing would be set for this period. My evidence lacked credibility due to lack of back up."

One can see the nature of the complaint but when it is looked at in a little more detail, it seems to us to fall apart. The position is that on 30 October 1998 Mr Wigg wrote a letter to the Employment Tribunal and on the second page of that letter he says:

"As a bankrupt and having to meet certain legal requirements I shall want to make the best defence of the allegations and we may require witnesses from her previous employer, people who I work under contract for, and, my other female employees, one of which is away December 98, January 99, I may also need to call upon Somerset Avon Constabulary regarding my call to them (regarding Miss Collings phone call to myself in itself a form of harassment of myself)"

[6]So one of the potential witnesses is said - and it is only a potential witness - to be away "December 1998 January 1999". That is not a request that there should be no hearing for the whole of December 1998 or January 1999. It could be, for example, that that person's evidence, on reflection, was not thought truly to be necessary or it could equally be that, even though necessary, the evidence could be put in writing and personal attendance would be unnecessary. So one cannot read that, properly understood, as an application that there should be no listing in December 1998 or January 1999. Something far clearer would need to be told to the Tribunal if that had been intended.

[7]Then on 10 December - this is at our page 24 - there was the preliminary Tribunal hearing before Mr Tickle to which I apprehend Mr Wigg refers in his letter. Mr Wigg attended in person. There is no record in the decision of any request having been made that the substantive hearing should not be until after January 1999. One would expect if there had been anything decided on that day as to the listing of the case that it would appear in the order, but it does not. But let it be assumed in Mr Wigg's favour that he did then touch on the fact that he might like the hearing to be until after January 1999.

[8]The next stage, which is our page 22, is that there was sent to Mr Wigg on 16 December a Notice of Hearing that says:

"The application will be heard by an Employment Tribunal [and then it gives the address] on Thursday, 28 January 1999…"

If Mr Wigg had been under the impression that Mr Tickle had clearly indicated that there would be no hearing until after January 1999 it really did behove him immediately to get in contact with the Tribunal and ask for the matter to be adjourned on the ground that there had been a mistake and an earlier indication that there would be no hearing in January 1999. I should add that the Notice of Hearing goes on to say: "You are responsible for ensuring that all the witnesses you may wish to call can attend on the hearing date. Unless there are wholly exceptional circumstances, no application for postponement due to non-availability of witnesses or for other reasons will be entertained if it is received more than 14 days after the date of this notice." and it goes on to provide how such application should be made. So nothing could be clearer than that if Mr Wigg was truly saying that it had already been agreed that there should be no hearing in January, something must have gone adrift, and moreover, consistently with that notice, he would have had to respond immediately to indicate to the Tribunal that there had indeed been a mistake. Unfortunately that was not done.

[9]The next stage - which is our page 27 - is a long letter from Mr Wigg of 9 January and it sets out Mr Wigg's argument on the substance of the case but it does not ask for an adjournment; it just deals with the merits of the case. This makes it extremely difficult for Mr Wigg to claim later that he had thought that there would be no hearing until after January because no point is there taken that he had been deceived by Mr Tickle or that he had been led to believe that there would be no hearing until after January or that he made application for an adjournment.

[10]On 12 January this year, the Employment Tribunal wrote to Mr Wigg mentioning that the Tribunal would be hearing the matter on 28 January and the Tribunal has confirmed that there was no request received for an adjournment of the hearing that was fixed for 28 January 1999 and that there had been no indication of difficulty with any of the witnesses that were intended to be called by Mr Wigg. In those circumstances, reverting back to Mr Wigg's letter which we have taken to be a Notice of Appeal, we do not feel able to see any error of law in the first two points which we have cited. We add that there was an earlier provisional hearing at the Employment Appeal Tribunal on 9 July 1999 and at that hearing, which is recorded on our page 18, it said: "The Tribunal orders that the matter be adjourned to be re-listed for preliminary hearing before Mr Justice Charles before the end of July 1999 The Tribunal directs that Mr Wigg do lodge prior to the re-listed preliminary hearing copies of those documents which he says would have been available if the hearing had not taken place in December/January and also full details of his communications with the Employment Tribunal as to the fixing of the date of the hearing." and then, on our page 40, that invitation having been given and that opportunity having been given, the matter returned to the Tribunal, again before Mr Justice Charles and two lay members, on 29 July, and Mr Wigg did not attend.

[11]So opportunity had been given to Mr Wigg and it was indicated to him what he needed to bring forward if he wished to make the case that it seemed that he wished to make, yet he failed to take that opportunity. That is not alone what we rely upon, but, looking to his letter, which we have taken to be his Notice of Appeal, we are unable to find any error of law in the matters there asserted and, although it is plain that Mr Wigg feels strongly that his case was not adequately dealt with, we are not in the position to offer anyone a rehearing of the Tribunal case below merely because one party feels in that way. What we have to find is some error of law in the Tribunal's approach, and, although we have sympathy for Mr Wigg's position, we have not been able to find an error of law. So, even at this preliminary stage, we dismiss his appeal.