MR T WILES v HULL & HOLDERNESS COMMUNITY HEALTH NHS TRUST [1999] UKEAT 528_99_0610

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 528_99_0610

Case No Appeal No. EAT/528/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR T WILESAPPELLANT

HULL & HOLDERNESS COMMUNITY HEALTH NHS TRUSTRESPONDENT

Before

His Honour Judge J Hicks

Lord Davies of Coity

Date 6 October 1999

[1]APPEARANCES For the Appellant MR OLIVER SEGAL (of Counsel) Messrs Gosschalks Solicitors Queen's Gardens Hull HU1 3DX JUDGE HICKS QC : Mr Wiles, the appellant, had been employed as a nurse in the National Health Service for 23 years, the last six of those being with the respondent employers, the Hull & Holderness Community Health NHS Trust. He was dismissed for sexual harassment of staff and complained to the Employment Tribunal of unfair dismissal and also (although Mr Segal, for him, tells us that it was not very strenuously or perhaps seriously pursued at the hearing) breach of contract.

[2]The hearing before the Employment Tribunal came to a premature end at a point when there had been some evidence from the respondent, followed by the whole of the applicant's evidence, but with some respondent's witnesses still to be heard. The parties withdrew for discussions and on their return told the tribunal that they had agreed that the application be withdrawn and that the applicant contribute £100 towards the costs of the respondents.

[3]Mr Wiles seeks to appeal on one ground, based on two incidents. Although the matter is developed in his affidavit and in Mr Segal's skeleton argument it remains the case that essentially the two elements of that ground as set out in the Notice of Appeal are what matters. The first is that at an early stage of the proceedings the Chairman allegedly described the appellant's conduct as "corrupting" more than once until that was acknowledged by the respondent's witness, Mrs Carol Green. The second is that even before two of the respondent's listed witnesses could give their evidence the Chairman expressed a view on the merits of the case and further strongly suggested to the appellant that he withdraw his application, which he eventually did under duress.

[4]The first of those arose because, as is not in substance disputed by the Chairman's comments, during or at the close of the evidence of Mrs Carol Green the Chairman asked her some questions which included a question which the appellant remembers as being "Are you not suggesting that the Applicant's conduct was corrupting?". That is dealt with in the Chairman's comments by reference to his note which, after summarising the immediately preceding passage of Mrs Green's evidence, includes the sentence "Agrees potentially corrupting". We are certainly prepared for the purposes of dealing with this preliminary hearing of the appeal to accept that that note represents an answer to a question by the Chairman.

[5]The Chairman goes on to say, and we accept, that following that question Counsel for Mr Wiles cross-examined the witness further but did not raise anything about that point and that there was then re-examination.

[6]We cannot see that there is any arguable case of misconduct on the part of the Chairman in that regard. It is part of the functions of a tribunal, of course to be exercised with care and not in a partial way, to elucidate the evidence of witnesses. It is important that when that is done the parties be given the opportunity, if their examination or cross-examination has earlier been completed, to cross-examine or re-examine further on that point, but that on the Chairman's report clearly happened here. We cannot see any impropriety on the part of the Chairman in that regard.

[7]The second and more important point, in the sense that much more stress is laid upon it in the presentation of this appeal, is what happened at the stage which I have earlier mentioned, when there had been some of the respondent's evidence followed by the whole of the applicant's evidence. At that point, according to the Chairman's comments, and we take the facts from those, as indeed did Mr Segal, Counsel for the respondents made a submission of no case to answer. It seems from the Chairman's comments that that was confined to the breach of contract claim, but the Chairman records that having retired to consider the matter the tribunal upon return gave the preliminary view "that the Applicant had no reasonable prospect of success but that having discussed the matter with the Members the Tribunal felt that there was no way at this early stage that they could make a decision on whether or not there was no case to answer". Assuming in favour of the appellant, although the submission had been about breach of contract, that that was taken to be an indication of the tribunal's provisional view about the prospects of success on the unfair dismissal claim, the fact is that what happened then, as we accept from the Chairman's comments, was that the parties wanted to retire and were permitted to do so. They did so, the Chairman says, at 3.55 p.m. and they returned at 4.20 p.m., therefore 25 minutes later. Miss Rajgopal, who was Mr Wiles' Counsel, "informed the Tribunal that having discussed the matter with the Applicant and reviewed the evidence and the Chairman's comments the Applicant wished to withdraw all claims. Furthermore, the Applicant had agreed to pay £100 towards the cost of the Respondent." Counsel for the respondent confirmed that. The order was made accordingly.

[8]The evidence which the parties had in mind during those discussions, and which Miss Rajgopal said she reviewed, had covered some two days of hearing, so it is impossible for us to summarise it in anything like full, and indeed it is not all before us, but two aspects of it are of importance.

[9]The first is stressed by Mr Segal for the appellant, namely that there had been witnesses who were fellow members of staff with the appellant Mr Wiles and in relation to whom the allegations of sexual harassment considered by the employers had been made. It is stressed by Mr Segal, and we accept is the case, that none of those female members of staff had themselves made complaints against Mr Wiles or indeed had done so even when questioned and, Mr Wiles says, prompted by the employer. On the other hand, it is equally clear that the evidence of those witnesses had been to the effect that although a great deal of sexual banter which might have been thought to be offensive had gone on, but which they were not concerned or worried about, it was nevertheless the case that Mr Wiles had gone further than that and further than any other member of staff in some of his actions, in particular in interfering with the bra straps of female members of staff and, in the case of at least one, feeling her breasts. That was one significant aspect of the evidence.

[10]The other significant aspect of the evidence up to that stage was that the note of Mr Wiles' response to some questions put by the Chairman was as follows. (This of course, although as is often the case with Notes of Evidence expressed as if statements by Mr Wiles, must be understood as conflating the question and the answer.):

"I can realise that using sexual banter to "de-stress" could cause "distress" or further stress a person on receiving end. I am not saying that the women gave permission to me to undo their bra straps. I agree that this is a difference in treatment of a woman as against a man. I can now see that the employer cannot condone "culture" and would be liable. I can see that all the evidence the employers had pointed to me and only me. If they know about it they have to act on it."

[11]It was in those circumstances that the tribunal gave the indication that they clearly did give to the parties that although they were not acceding to the submission of no case to answer they had the preliminary, as the tribunal put it, or the provisional view that the applicant had no reasonable prospect of success.

[12]It is the burden of Mr Wiles' case on this appeal that that showed what is sometimes called bias, not of course at all concerned with bias in the sense of a pre-existing relationship of interest, which would prejudice the tribunal's consideration. It is concerned with what, in a broader sense, is misconduct of the proceedings, in this case, it is alleged, by reaching a premature conclusion before the evidence is complete, although of course the evidence that was still to come was the respondents' remaining evidence, not any further evidence by or on behalf of the applicant.

[13]As I have said, we have taken those facts from the Chairman's Notes, not least because Mr Segal presented the matter on that basis and did not rely on the affidavit of Mr Wiles insofar as it went outside those matters. We must confess that we regard that as wise, because there are difficulties about Mr Wiles' affidavit, not least that from beginning to end he makes no reference to the fact that he was represented by a solicitor and Counsel at this hearing, which was of course an extremely material fact in relation to the sort of allegations that are made of his feeling overborne or under duress when he reached the decision to withdraw his claim and pay a contribution to the respondents' costs.

[14]We have reached the conclusion that there is no arguable prospect of success to go forward to a full hearing of this appeal.

[15]There is first the fact that it seems to us absolutely plain that a contract was reached between the applicant and the respondent for the disposal of this application on the terms that were then announced to the tribunal and embodied in the order, namely that the application should be withdrawn and a contribution of £100 made towards the respondents' costs. We see no reason why the principle should not apply here, as elsewhere, that when appealing what amounts to a consent order embodying a contract, grounds have to be shown upon which the underlying contract would be set aside, as well as grounds which would justify an appeal from the order viewed purely as order. However, we do not rely on that as our principal reason for dismissing appeal, not least because it was an aspect of the matter that arose only during the course of the submissions in discussion this morning. We rely on the fact that, contract or no contract, simply viewed as an order of the Court, this was not an order as to which there can be any prospect of success in an appeal on the grounds raised by the Notice of Appeal.

[16]We have already dealt with the first limb concerning the questioning of Mrs Green and we do not accept that such provisional view as the tribunal expressed after hearing all the applicant's evidence, and when he was represented by solicitor and Counsel who requested an adjournment and entered into negotiations with the respondent, can amount to misconduct or bias which would vitiate the decision. The appeal is therefore dismissed.