RHIANNON DAVIES v MS J ROWAT CAMDEN TRAINING CENTRE [1999] UKEAT 856_99_1110

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 856_99_1110

Case No Appeal No. EAT/856/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

RHIANNON DAVIESAPPELLANT

MS J ROWAT CAMDEN TRAINING CENTRERESPONDENT

Before

His Honour Judge J Hicks

Date 11 October 1999

[1]APPEARANCES For the Appellant MS M MURPHY (of Counsel) Instructed by Messrs Batra Solicitors Kingsland House 122-124 Regent Street London W1R 5FE JUDGE HICKS: Ms Davies, the Appellant, was employed by the Second Respondents, Camden Training Centre, as a teacher of English as a foreign language from May 1997 until 5 January 1998. She brought complaints against them and against her immediate manager, Jean Rowat, the First Respondent. The complaints were of sex discrimination, victimisation, breach of contract and the unlawful deduction of wages. The Employment Tribunal, in reasons given on 4 May 1999, recorded that the contract claim or claims had been compromised and dealt with the complaints of sex discrimination and victimisation by dismissing them. The question for us is whether Ms Davies has sufficiently arguable grounds of appeal to proceed to a full hearing and it is therefore necessary to consider the grounds of appeal advanced on her behalf by Ms Murphy. We shall address them under the headings used in argument, which are in part derived from the Notice of Appeal but in part from paragraphs in a proposed amended Notice of Appeal for which leave is sought. For the purposes of disposing of the matter today it is sufficient if we simply assume that leave for those amendments has been given, although for reasons which will appear it is not necessary actually to grant leave.

[2]The first ground advanced by Ms Murphy is that the Tribunal erred in law in finding that there was no sex discrimination in that it failed to give reasons, or adequate reasons, for its finding that there was no "causal connection". That arises because in their reasons the Tribunal, having in paragraphs 1 to 7 dealt with the history, which included the fact in paragraph 2 that when Ms Davies first took up her position she learnt that the First Respondent was a gay woman and interpreted her initial behaviour as signalling sexual interest in her - having gone through that history, which also records that it was substantially later on 10 February 1998 that Ms Davies introduced allegations of sexual harassment at a disciplinary hearing - the Tribunal goes on to find as follows in paragraph 8:

"The matters raised by the Applicant in respect to her initial meetings with the First Respondent and her subsequent dismissal, were entirely separate and discrete. There was no causal connection between them."

[3]The submission is that further or more adequate reasons should have been given for that finding that there was no causal connection. But we see no error of law on the part of the Tribunal here, and in particular no error of the kind which consists in failing to explain a Tribunal's decision sufficiently to enable the person against whom the finding goes to understand why the Tribunal has reached that decision and to consider whether there is any ground of appeal. The history, as I have said, is set out and it is quite plainly on the basis of the Tribunal's findings of fact as to that history that it reaches the conclusion which it expresses in paragraph 8, and we see no error of law in its expressing itself in that way or in its failing to elaborate upon the finding that there was no causal connection between the initial meeting with Ms Rowat back in May 1997 and the events at the disciplinary hearing in early 1998.

[4]The second complaint is of a similar nature. It is that the Tribunal failed to give reasons or adequate reasons why "it was not a sustainable proposition that the dismissal was trumped up on groundless charges and why the Appellant suffered at the First Respondent's hand for clear breaches of identified procedure". That is a reference to a passage towards the end of paragraph 11 of the Tribunal's decision in which it records that the Applicant claimed that her dismissal was trumped up on groundless charges and found that that was not a sustainable proposition. That comes after the Tribunal has made not only the findings of fact as to the history in paragraphs 1 to 7, but also described the nature of the Applicant's claim and set out in the earlier part of paragraph 11 at some length the nature of the Applicant's case and the evidence called in support of it. It is after reciting that evidence, and in the process of doing so to some extent commenting on it, that the Tribunal reaches this conclusion that the complaint advanced by the Applicant of her dismissal having been trumped up on groundless charges was not sustainable and again, in our view, that was a sufficient way of dealing with the matter and no error of law is shown in the Tribunal's treatment of it.

[5]The next ground is that the Tribunal exercised its discretion improperly in taking improper matters into account. It appeared on enquiry that this is not actually a complaint about the exercise of a discretion at all. It is a complaint about a finding of fact, namely, that at the disciplinary hearing the parties agreed that allegations of sexual harassment should not be dealt with and that the disciplinary panel for that reason, did not consider them. That is a straightforward finding of fact and the allegation therefore is that in reaching that finding of fact, the Tribunal took 'improper', which I suppose means in this context 'irrelevant', matters into account, and what is said to be the irrelevant matter which was taken into account was the very reaching of that agreement between the parties.

[6]The complaint is that since the First Respondent herself was one of those parties, that agreement was an improper matter to take into account. That proposition has only to be stated to be seen to be unarguably wrong. The finding of fact itself that agreement was reached is not, and on the face of it cannot be, challenged - certainly it is not challenged. It is obvious that any such agreement would involve the Applicant, Ms Davies, and the Respondents and certainly the First Respondent, Ms Rowat, and why the fact of that agreement should be irrelevant to the Tribunal's conclusions on the issues of fact, in particular whether there had been unlawful sexual discrimination, we find it impossible to imagine. Of course, as Ms Murphy I think was really submitting, it would be wrong to treat that fact as conclusive of the decision on the substantive issue before the Tribunal, but there is no suggestion that they did treat it as conclusive. It is simply one of the matters of history which they recount in dealing with the background and events leading up to the decision which they had to make.

[7]Substantially the same comments apply to the next ground, which is the converse of the one with which I have just dealt. It is alleged that in, as it said, exercising its discretion (but again it is actually a finding of fact) the Tribunal acted improperly in failing to take into account a necessary matter, which amounts to an allegation that in reaching its conclusion the Tribunal failed to take into account relevant evidence. What is said here to be the relevant evidence that was not taken into account is really an absence of fact rather than the fact itself. It is said that the Tribunal made no finding of fact that the Appellant found the First Respondent's alleged conduct welcome, and therefore in substance this seems to be an allegation that the Tribunal should have made such a finding, namely that the Appellant did not find it welcome and then should have taken that into account. What the Tribunal of course conclude was that there was no causal connection between the conduct of the First Respondent in May 1997 and the dismissal in early 1998 and this particular allegation of something they should have found and then taken into account is therefore beside the mark and founds no arguable ground of appeal.

[8]The fifth point is that there was procedural irregularity or the appearance of bias in that two of the members of the Employment Tribunal had been members of another Employment Tribunal which shortly before this hearing had dealt with a Preliminary Hearing in Ms Davies' complaint against her union, UNISON. That is dealt with in Ms Davies' affidavit, which does not set out any of the circumstances except that at that earlier hearing against UNISON, which was a Preliminary Hearing, it was decided that the Tribunal did not have jurisdiction to consider her complaint of sex discrimination. We understand from Ms Murphy that that complaint against the union was of failing to advance Ms Davies' case against the same employers, the Second Respondents here. To some extent, therefore, there was overlap in the facts which would have had to be considered at a full hearing of that complaint, in particular as to the alleged (and as the Tribunal found, actual) agreement that sexual harassment would not be pursued at the disciplinary hearing, but first the Tribunal sitting on the UNISON case was never asked to and never did go into the underlying facts and merits of that application because the hearing was, as the affidavit says, a Preliminary Hearing on the issue of jurisdiction turning, as such hearings commonly do, on the question whether the complaint was brought in time. Nor, as we understand from Ms Murphy, was it a case where even that issue turned on credibility, so that the Tribunal might have been thought to be biased by having formed an adverse view of Ms Davies' truthfulness or credibility as a witness, because that did not arise. It was a case, as we understand it from Ms Murphy, of dealing with a straightforward question of chronology on the basis of facts which were not really in dispute. In those circumstances we see no reason why there should have been any appearance of bias on the part of those two members. Ms Murphy accepts that Ms Davies recognised them and understood perfectly well that they were two of the persons who had sat on the previous hearing and did not object to their sitting on this hearing. It is true that the Chairman, or indeed those members, apparently did not further invite Ms Davies to take any objection or ask her views. That might be very material if there had been the apparent possibility of bias, but for the reasons we have given we do not see this as being such a case and therefore this ground, in our view, is not arguable.

[9]The next ground is a further allegation of procedural irregularity or appearance of bias in that the Tribunal did not allow Ms Davies to call a witness, Karen Peterson. The situation as we understand it here was that there had been, as is nowadays usual, procedural directions including directions for the exchange of witness statements and that Ms Peterson did not appear among the witness statements served by Ms Davies. On the last day of the hearing, as the Tribunal records in paragraph 11 of its reasons, Ms Peterson appeared after the Applicant's case had closed. It is not said in the reasons what stage had been reached in the Respondent's case, but Ms Murphy accepts that some at least of the Respondent's witnesses must already have been heard, because one of the submissions made by Counsel for the Respondents was that if Ms Peterson's evidence went in then some at least of those witnesses would have to be recalled. The Tribunal dealt with the matter by asking that the evidence which Ms Peterson would give, if called, be reduced into the form of a witness statement. They read that statement and then they ruled against her being called. Ms Murphy says that it was wrong to rule against the evidence once they had seen it, but we do not understand that objection. This was a case where the Appellant, Ms Davies, was having to ask the Tribunal for what amounted to an indulgenc, in the sense that she had not complied with the directions as to service of witness statements; she was making the application very late in the case after her evidence had been closed and some at least of the Respondent's evidence had already been called. There was nothing at all wrong, indeed it was potentially of some assistance to her, that the Tribunal, before ruling on the matter, which they might have done against her without more ado, should say "we are prepared to look at the evidence this witness can give to see whether that persuades us that, notwithstanding the lateness and non-compliance with the directions, this evidence should still be called". Having done so, they came to the conclusion that even if given the evidence would not affect the outcome and ruled against it. We see no error whatsoever in that procedure and no arguable ground of appeal.

[10]Then in paragraph 3 of Ms Davies' affidavit and in ground 7 of the proposed amended Notice of Appeal there are further allegations of improper conduct and the appearance of bias on the part of the Tribunal in two respects, but only one of them was seriously advanced by Ms Murphy, and that was that as to one of the Appellant's witnesses, a Jeanne Howe, the Chairman said that he wanted, in Ms Davies' recollection, to get rid of her as soon as possible. Ms Davies in her affidavit accepts that he immediately, as she puts it, "laughed embarrassedly and apologised" for using those words and the Chairman in his comments says:

"Yes I was guilty of a slip of the tongue at one stage during the Applicant case. In an exchange with the Respondents' counsel I did say "when we have finished with the witness" as opposed to "we are finished with the witness's evidence."

I corrected myself virtually in the same breath."

[11]Ms Murphy seeks to make much of the difference of phraseology between Ms Davies' recollection and the Chairman's but we see no substantial difference, and indeed their accounts seem to be strikingly at one in that it is common ground that the Chairman said something which might have been construed as being prejudicial. It manifestly was, as the Chairman says, a slip of the tongue, because they are at one in agreeing that he immediately, as he puts it, corrected himself, or as Ms Davies puts it, apologised. There is no possible case that could be argued in our view of improper conduct or the appearance of bias in that respect.

[12]It is further alleged in the affidavit and in the ground of appeal, although not as we have said pressed by Ms Murphy, that the Chairman curtailed Ms Davies' cross-examination of Jean Rowat, the First Respondent or, as she puts it, she felt bullied to the extent that she felt she had better stop examining her. We accept the Chairman's comments that he did, on occasions, ask the Applicant to move on when she had made her point and as he believed was merely lingering on it to exacerbate any embarrassment that she might have inflicted on Ms Rowat. Since it is plainly for the Tribunal, through its Chairman, to control the conduct of the proceedings and not allow time to be wasted in unnecessary and prejudicial matters, we see no arguable error of law in that respect either.

[13]The other grounds are either expressly abandoned or not pursued by Ms Murphy and that therefore disposes of all the grounds put forward and, for the reasons I have given, we shall dismiss the appeal.