MS T ANTONIOU v SWIFT TECHNICAL SERVICES LTD [2000] UKEAT 1213_99_1104

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 1213_99_1104Case No Appeal No. EAT/1213/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS T ANTONIOUAPPELLANTSWIFT TECHNICAL SERVICES LTDRESPONDENT
Before
Mr Justice Burton Ms S R Corby Dr D GrievesDate 11 April 2000
[1]APPEARANCES For the Appellant MS Y ADEDEJI (of Counsel) Instructed by: Messrs Collinsons & Co Solicitors 41D Kilburn High Road Maida Vale London NW6 5SB MR JUSTICE BURTON : This is the preliminary hearing of an appeal brought by the Appellant, Ms Antoniou, against the Respondent, Swift Technical Services Ltd, arising out of the decision of the Employment Tribunal sitting at Stratford, which dismissed the Appellant's application by way of complaint of sex discrimination. The background to that complaint should be supplemented in this way: the Appellant, who is of Greek origin, also made an allegation of race discrimination which she withdrew at the Tribunal, although reserving the right to rely on the same evidence as she had wished to adduce on race discrimination to support her case of sex discrimination, and she also brought an application by way of a complaint of unfair dismissal. As she had not been employed by the Respondents for the qualifying period of two years, that complaint was stayed, at that stage, pending the final determination by the House of Lords in ex parte Seymour-Smith . I take it that that decision now having been given by the House of Lords, that stay is at an end, and thus she had no claim for unfair dismissal, but the facts may well have constituted a good claim for unfair dismissal and inevitably Ms Antoniou's feeling of distress and concern arising out her dismissal, which she sought, unsuccessfully in the event, to complain of by way of sex discrimination, inevitably also found a feeling that she was unfairly dismissed for which, in the event, she has no redress. This appeal has been extremely ably brought on by Ms Adedeji of Counsel on the Appellant's behalf, who also represented her below. She has put forward 10 points in support of her appeal, some of which are obviously better than others, but all of which she has ably argued. I summarise the 10 and deal with them shortly.[2]The factual background must be briefly stated. Ms Antoniou joined the Respondents on 29th July 1997 as a senior bookkeeper. The circumstances in which a senior fulltime bookkeeper was employed are that a Mr Tony Ellis, a chartered accountant, had been retained by the Respondents on a temporary basis for some time, and he had recommended that a fulltime bookkeeper be employed.[3]It appears that Mr Ellis was unhappy at the appointment of the Appellant from the beginning on the findings of the Tribunal, forming the view that she was not only defensive and aggressive in her personality, but was also incompetent.[4]The relationship between herself and Mr Ellis, if it ever had any good points, deteriorated quickly. The conclusion of the Tribunal was that it was fatally undermined.[5]By April 1998 Mr Ellis had been taken on as fulltime accountant and at that stage plainly the relationship between them was even more difficult to cope with, because if and in so far as there had been some misunderstanding or lack of understanding as to his position of seniority as between a part-time chartered accountant and a senior bookkeeper before his full-time employment, one anticipates that after his employment there can have been no doubt that, at least on the face of it, she ought to have to been reporting to him. But the Tribunal concludes that the managing director, a Mr Patrick Swift, adopted a paternalistic method of management and, albeit that the atmosphere in the office was, as the Tribunal found, occasionally rancorous, and that complaints were made to him about this, he took no action, and that although it was clear, as the Tribunal found, that the Appellant and Mr Ellis were heading for a potential showdown, he did nothing.[6]In the event, Mr Ellis, it seems, was pressurising from a very early stage that the Appellant should be dismissed. Mr Patrick Swift was defending her position and, in the event, he did dismiss her after deferring it as long as he could. The letter of dismissal of 29th July put forward an explanation which did not mention the breakdown of relationship between herself and Mr Ellis, which was plainly the main reason for that dismissal, as indeed Mr Patrick Swift appears to have made clear when he subsequently gave an oral reference to Rothschild Assurance for the Appellant.[7]The decision is relatively lengthy. It runs over nine pages, it is closely reasoned, both in relation to the evidence, the law and the conclusions of the Tribunal, and the Tribunal sat over two days to hear evidence and it appears spent two days considering its decision.[8]It is important to emphasise that this is an appellate tribunal and must be persuaded that there are arguable points of law involved in an appeal; alternatively, that there is an arguable case that the Tribunal was perverse in its conclusion.[9]The first ground of appeal, adumbrated by Ms Adedeji, was the submission that the dismissal of the Appellant was itself the culminating act of discrimination, and that the Tribunal had reached no finding in that regard, not referring specifically to the dismissal letter and not making any particular finding of fact in relation to the dismissal. This was forcefully argued by Ms Adedeji. She coupled it with the second ground, which is that Patrick Swift gave the oral reference subsequent to the dismissal of the Appellant to Rothschild Assurance, to which I have earlier referred, in which, while making clear what the reason for the dismissal of the Appellant had been, namely her falling out with Mr Ellis, did include very flattering references to the Appellant about her work being of an excellent standard at all times, and that no mention was made of that reference in the Tribunal decision, notwithstanding that, in the event, when he came to give evidence, although previous indications had been given on the Respondent's behalf that there would be no challenge to the content of that reference, resulting in the Appellant not seeking to call the recipient of the reference, when it came to it, Mr Patrick Swift did not accept that he had used the words ascribed to him in the oral reference. Ms Adedeji submits that the reference itself was relevant to the question of the dismissal, and that the change of stance by Mr Patrick Swift, set against the clear wording of the letter which had previously been said not to be subject of challenge, was a matter going to Mr Patrick Swift's credibility, which ought to have been addressed in terms by the Tribunal.[10]We have considered the points carefully, but we do not conclude that either of those two grounds can support an appeal. So far as the first point is concerned, it is clear to us that the Tribunal well understood that the dismissal itself was the culmination of the discrimination. The Tribunal considers the question of the history culminating in the dismissal in its conclusions in paragraph 15((i), reference to Mr Ellis, and in particular that "she was the only employee that he hoped would be dismissed." 15(ii) and 15(iv), with the specific reference to Mr Patrick Swift's being keen subsequently to retain the Appellant when others advocated her dismissal, and deferring her dismissal. The conclusion of the Tribunal was, in paragraph 15(i), that there was less favourable treatment of the Appellant, because, as Ms Adedeji has pointed us to us, she was the only one who was dismissed, but also that she was the only one whom Mr Ellis "hoped" would be dismissed, and yet the Tribunal accepted the explanation of the Respondent's conduct and was satisfied "that Mr Ellis' treatment of the Applicant [which led to the dismissal] was motivated by his perception of her abilities and performance, and not by her gender." As for the question of the credibility of Mr Patrick Swift, perhaps it is inappropriate for us to take judicial notice at this stage of the vigour and ability of Ms Adedeji before us, but we have no doubt at all that she would have used the same vigour and ability before the Tribunal, and indeed she confirms that she made the point about the credibility of Mr Patrick Swift in terms to the Tribunal, and it is clear that the Tribunal reached conclusions about Mr Swift which did not include any finding that he had lied or that they had any doubt of his credibility, notwithstanding those submissions. It is not necessary or indeed possible for the Tribunal to set out every submission that is made to them or every piece of evidence, particularly evidence going to credibility, and we are satisfied that this Tribunal, in its detailed conclusions, will have carefully considered all submissions made to it by Ms Adedeji, including written submissions.[11]The third ground blends together with the fourth, fifth and sixth. They all relate to Mr Ellis, in relation to which the Tribunal reached the conclusion to which I have earlier referred. They are as follows: (3) That there was no or inadequate dealing by the Tribunal with the case made on behalf of the Appellant that the nub of the breakdown in relationship between Mr Ellis and the Appellant arose out of the issue of seniority. (4) That the wrong comparator was adopted by the Tribunal in paragraphs 15(i) and (ii) of its conclusions. (5) That there was no evidential basis for the Tribunal's conclusion that Mr Ellis was of the view that the Appellant was insufficiently skilled for his purposes, as found by the Tribunal in paragraph 8. (6) That there was no ground for any conclusion that the Appellant was incompetent, certainly at the earlier stage even if at the later stage of her employment.[12]We conclude that there is no substance in this case, which again depends upon the conclusions of fact by the Tribunal, notwithstanding submissions to the contrary, no doubt by Ms Adedeji below, with which there is no ground to interfere. The issue of seniority, although the word is not mentioned, is quite plainly lying behind the conclusions of the Tribunal that the relationship between Mr Ellis and the Appellant completely broke down.

(i) the Tribunal say that:

"… the Respondent submits that there was no less favourable treatment, since a male employee who failed to come up to Mr Ellis' expectations would have been treated in the same way."
The Tribunal concluded that they considered:
"that this unnecessarily narrows the pool for comparison and that the proper comparison is with other male employees generally. In that the evidence discloses that the Applicant alone was criticised by Mr Ellis, and that she was the only employee that he hoped would be dismissed, we conclude that she establishes less favourable treatment and a difference of gender."
But the Tribunal go on to say in paragraph 15(ii):
"We do not conclude or infer that the treatment by Mr Ellis was on the grounds of the Applicant's sex. … We have not upheld specific allegations made against Mr Ellis. On the facts that we have found, it is our conclusion that Mr Ellis' treatment of the Applicant was motivated by his perception of her abilities and performance, and not by her gender."
Ms Adedeji submits that the comparator chosen of all male employees was an inappropriate comparator, and that the proper comparator should have been a male senior bookkeeper. It is clear to us that that was rejected by the Tribunal, not on grounds that it was an inappropriate comparator, but that it was insufficiently fair to the Appellant to restrict comparison to such a person and that before reaching a conclusion which it clearly otherwise would have done, that a male senior bookkeeper in the position of the Appellant, with the dispute and problems about seniority, would have been treated the same, the Tribunal pause to look at a wider pool to see whether any other male employees or indeed female employees, would have been treated differently, and concluded that the basis of the maltreatment, if maltreatment there was, or inappropriate conclusions, if inappropriate conclusions there were by Mr Ellis, were not on grounds of sex. We are satisfied that a perfectly proper test by way of choosing the comparator was adopted by the Tribunal. As for the question as to whether there was evidence to support the conclusions of the Tribunal, it is clear to us by marrying up paragraph 4 and 8 of the decision, that the conclusion the Tribunal came to was that from the beginning Mr Ellis had a dim view of the Appellant and did not get on with her, but not on grounds of gender, and that within a relatively short time he did have grounds for his conclusions; whether or not objectively the Appellant's conduct and capability could well have been of the highest order, by Mr Ellis' standards, rightly or wrongly, he concluded that her performance was not up to those that he required. That is carefully and fully dealt with in paragraph 8 of the decision, and it appears to us to be a conclusion which the Tribunal was entitled to come to on the evidence as interpreted by it.[13]The seventh ground for the appeal related to some allegations made against Mr Ellis in paragraph 7 of the decision. This was, in the event, not enthusiastically pursued by Ms Adedeji when it became clear that there was a clear finding of fact by the Tribunal, both in that paragraph and repeated in paragraph 15(ii), that having considered the evidence the Tribunal was not satisfied that the Appellant had proved any of the specific allegations that she made against Mr Ellis.[14]The eighth ground related to a specific occasion in April 1998, when a specific statement was ascribed to Mr Ellis by the Appellant in her witness statement confirmed in evidence, which he denied. In rejecting that allegation in paragraph 8, which again formed part of the specific allegations against Mr Ellis which were referred to as having been not upheld in paragraph 15(ii), the Tribunal mentioned two matters which had weighed with them, first, the generalised nature of the conversation alleged by the Appellant, not supplemented by any further detail in evidence, and secondly, the fact that it was absent from the further and better particulars of her claim, albeit that it featured in her witness statement. Those alone, particularly the second, may well not have been very sturdy foundations upon which to reach a conclusion, but it is entirely clear to us that they were matters which were considered by the Tribunal, but that at the end of the day it knew, although not specifically recited, that Mr Ellis had denied that conversation, and it was not accepting the Appellant's evidence and was either accepting, or certainly not rejecting, Mr Ellis' evidence. The fact that that specific sentence is not added to the passage referred to cannot in any way amount to a complaint against the Tribunal, when it clearly addresses the question as to whether the allegation is proved and find that it was not.[15]The ninth ground relates to a Mr Eamonn Swift, who is the son of the Mr Patrick Swift. The evidence so far as Eamonn Swift is concerned is primarily set out in paragraph 9, although the Tribunal return to it in paragraph 15(iii). The finding of fact by the Tribunal, corroborated by evidence, to which Ms Adedeji referred us from her own note, by Mr Ellis, is that there were indeed incidents of shouting and indeed no doubt swearing and screaming, in the office, but the Tribunal conclude that it was mutual, so far as the relationship between Eamonn Swift and the Appellant were concerned. The Tribunal refer to the "body of evidence" in the case in that "each would shout at the other." The Tribunal then refers to the evidence to which Ms Adedeji referred us, from Mr Ellis, that there would be arguments between Eamonn Swift and the Appellant when if he were told off by the Appellant "he would react by shouting at her and she would then explode." The finding of fact of the Tribunal includes the words "We find that there were occasions when each was confrontational with the other; and when there was swearing on both sides." Ms Adedeji complains about the fact that there was the use of the word "swearing" ; she would accept that there was shouting by the Appellant and even screaming, on the evidence that had been given, but not swearing. It appears to us that this is a very small area in which one could criticise, if one can criticise, the Tribunal, and if it had limited its finding to say that there was shouting and screaming on both sides, that was the nub of the point, namely that the relationship was one which involved both the two shouting at each other, and that it did not result from any discrimination against the Appellant by Eamonn Swift on grounds of her sex. It arose out of the uncomfortable relationship in which she was in fact superior to Mr Eamonn Swift, even though he was the son and a rather unsatisfactory son it may well be, of the managing director.[16]The last ground of appeal and the tenth, is one relating to Mr Patrick Swift. In this very detailed decision, in which a large number of the allegations were made by the Appellant that, throughout the period of her employment, she was treated badly and differentially on the grounds of her sex, there was not a specific mention of one particular piece of evidence when Mr Patrick Swift is said to have said, we are told in the Appellant's presence, that the reason for taking on a new male employee was because he was not a woman or, at any rate something to that intent. Plainly that evidence, no doubt taken together with other evidence, could have been, and presumably was, relied upon by the Appellant as part of her case that she was discriminated against. If it stood alone as not having been, and was not, mentioned, and the whole case revolved around it, it would be extraordinary if it were not specifically dealt with. But the fact is that it did not, it was part of a large amount of evidence and indeed, features as only the tenth in the Appellant's grounds of appeal. The issue we have to ask ourselves is, when, after there has been this very careful consideration by the Tribunal of all these matters said to have occurred over the entire period of the Appellant's employment, all the abuse and discriminatory remarks have been rejected, or alternatively not found to have been based on gender, but there is no specific mention of this one incident, which, Ms Adedeji has fairly told us, was denied by Mr Patrick Swift, does that cause us any doubt as to whether this Employment Tribunal has not properly considered the evidence, or has come to a perverse conclusion? We are satisfied, given the very careful consideration that is apparent from the decision, that the failure to mention this one specific, and in any event denied, allegation, does not in any way cause us to consider that the whole decision should be challenged.[17]In those circumstances, we dismiss the appeal.[18]Legal Aid taxation granted.