MISS J PICKERSGILL v (1) ALLDERS DEPARTMENT STORES LTD (2) MR GERRARD CAPPER [2000] UKEAT 549_00_0507

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 549_00_0507

Case No Appeal No. EAT/549/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS J PICKERSGILLAPPELLANT

(1) ALLDERS DEPARTMENT STORES LTD (2) MR GERRARD CAPPERRESPONDENT

Before

Mr Justice Keene Mr A E R Manners Mr R Sanderson

Date 5 July 2000

[1]APPEARANCES For the Appellant MR N MILES (of Counsel) MR JUSTICE KEENE : This is a preliminary hearing of an appeal to determine whether a reasonably arguable point of law is raised. The appeal is from the decision of the an Employment Tribunal sitting at Sheffield and entered in the Register on 7th March 2000.

[2]The appellant had claimed that she had been unlawfully discriminated against within the terms of the Sex Discrimination Act 1975 . She made a number of specific allegations in support of that claim.

[3]The appellant was employed by the first respondent, Allders Department Store Ltd, at Rotherham and her allegations were, in essence, that she had been subjected to sexual harassment by the second respondent, Mr Capper. He had initially been the appellant's immediate superior in the Light Household Department of that store. The appellant alleged that a number of acts of harassment had occurred on various occasions.

[4]The appellant had herself been suspended in December 1998 after being charged with misconduct by the first respondent. At the time of the tribunal hearing she was still absent from work due to sickness and depression. The tribunal recorded that the first respondent had been unable to hold a disciplinary hearing relating to the alleged misconduct, although an investigatory hearing had been held.

[5]The general manager of the store, Mr Hasan, had also been charged with misconduct and was under suspension. The allegations by the first respondent against the appellant and Mr Hasan were connected and they included borrowing goods from the store and receiving cash refunds, in some cases, for the goods. At the hearing before the Employment Tribunal Mr Hasan gave evidence on the appellant's behalf.

[6]The Employment Tribunal stated at paragraph 6 of its extended reasons:

"6. It was accepted by all parties that sex harassment amounts to sex discrimination within the terms of Sex Discrimination Act 1975, sections 1 and 6. It was accepted by all parties that the allegations made by the applicant would have come within the definition of sex harassment and therefore sex discrimination. Therefore the tribunal had to decide upon the credibility of the applicant and also the applicant's witnesses compared to the evidence given both by Mr Capper and the witnesses who gave evidence for the respondents."

It is clear from that, that the case turned upon credibility and findings of fact to be made by the Employment Tribunal. In the event the tribunal did not accept the appellant's allegations. It went through them in some detail, but it rejected her evidence as it did that of Mr Hasan who it found was not credible. Amongst other things, the tribunal found that contrary to their evidence at the hearing, the appellant and Mr Hasan had been having an affair.

[7]The tribunal found overall that there had been no sexual harassment. It stated towards the very end of its extended reasons, before dealing with the question of costs:

"10. … The unanimous conclusion of the Tribunal is that the allegations were fabricated in order to set up a smokescreen relating to the charges of fraud … made against the applicant and Mr Hasan."

[8]On behalf of the appellant this morning, Mr Miles raises, effectively, four matters which he contends justify allowing this appeal to go through to a full hearing. He refers first of all to the allegation raised in the grounds of appeal of bias on the part of the tribunal Chairman. Mr Miles chose not to press this particular ground in any detail, and in our judgment he was right to do so. Having read the papers, we can find no evidence which indicates actual bias or even the appearance of bias on the part of the Chairman.

[9]Next, it is contended that the finding of the tribunal that the allegations were fabricated to set up a smokescreen relating to the charges of fraud, implied a finding that the appellant was guilty of those offences of fraud and, emphasises Mr Miles, there was no evidence to establish that. Indeed, it is entirely right that the tribunal itself expressly recorded in the course of its extended reasons that it did not hear any evidence relating to those charges. We regard this particular ground as being wholly unsustainable. The tribunal did not find that the charges of fraud had been made out. That was not its task and it is clear to us that it was well aware that it did not have evidence allowing it to make any such finding. Its conclusion, set out earlier in this judgment, was that the allegations of sexual harassment were fabricated to set up a smokescreen relating to those charges. It was not a necessary precondition to that conclusion that the fraud charges were true. A smokescreen could well have been though desirable and helpful, even if one knew that the charges were not true, as a means, perhaps, of getting rid of the charges and the risks that inevitably accompany such charges. We therefore do not find any logical implication of the kind which it is suggested is to be found in the tribunal's conclusion.

[10]Thirdly, it is contended that the tribunal went wrong when it dealt with the question of the affair between the appellant and Mr Hasan. The grounds of appeal put this in terms which Mr Miles this morning has not strictly speaking sought to uphold. The grounds refer to the weight of the evidence and to the particular nature of the evidence that there was an affair, as contrasted to the express denials by the appellant and Mr Hasan. It is of course right that the appellant and Mr Hasan did deny that there was any affair between them and the tribunal was clearly well aware of those denials but it rejected their evidence. It said on this, in the course of its extended reasons:

"9. … On the evidence the tribunal has heard, particularly in relation to witnesses giving evidence for the respondents who said that both the applicant and Mr Hasan had said to them that they were having an affair, the unanimous conclusion of the tribunal is that this was true. …"

It is for the tribunal which hears the witnesses to determine who is telling the truth. There was evidence that the appellant and Mr Hasan were having an affair, and the tribunal was entitled to accept that and to reject the denials of the two individuals concerned. This morning the matter has had a somewhat different gloss put on it in the course of argument by Mr Miles. He concedes that the Employment Tribunal was entitled to take account of hearsay evidence, but he draws attention to a sentence in the extended reasons where the tribunal stated that it "believed that it had been misled in this respect and it therefore concluded that it is likely that it had been misled in other areas as well both by the applicant and Mr Hasan." Mr Miles submits that it is dangerous for a tribunal to reach such conclusion, bearing in mind that there may be particular reasons why a couple involved in an affair would choose to deny it, particularly when one of them was married. In essence, he is suggesting that it did not follow from the finding that lies had been told about the affair, that the individuals concerned were likely to have lied about other matters. This is a situation which frequently arises in the criminal context where a jury has to be directed somewhat along those lines in what is colloquially known as a Lucas direction.

[11]It seems to us that, while that comment may not have been entirely justified as such, in the present case the tribunal in fact went through all the various alleged incidents and heard the evidence not only of the appellant and Mr Hasan, but also of a considerable number of witnesses called on behalf of the respondents. Having done so, the tribunal preferred the evidence of the respondents' witnesses. They found expressly, at paragraph 8 of their extended reasons, that the evidence of the respondents' witnesses was reliable and they were particularly impressed by that evidence because many of those witnesses had actually been made redundant upon the closure of the first respondent's Rotherham store and had no reason to give evidence in favour of the first respondent. The tribunal regarded the evidence from those witnesses called by the respondents as being very significant. When we put that together with the fact that the tribunal heard all the witnesses in this case and reached decisions on credibility and reliability on the detailed allegations, it does not seem to us that there is any arguable point of law which truly arises as a result of the one comment upon which reliance is placed.

[12]Finally, it is contended on behalf of the appellant that the tribunal failed to take into account certain evidence which was given on her behalf. Mr Miles draws attention to the fact that there was some evidence called by the appellant before the Employment Tribunal that certain complaints of harassment by her predated the issues of fraud which only arose in about December 1998. Specific complaints, it is said, had been made by her and were known to the first respondent before that date. Certain witnesses were called who indicated that they knew that complaints had been made as early as September 1998. In effect, therefore, it is said, this is not compatible with the tribunal's conclusion, to which we have already referred, that the allegations of sexual harassment were a smokescreen to conceal or to distract attention from the charges of fraud.

[13]In fact in its extended reasons the tribunal does refer to the appellant making a complaint in September 1998. It sets out the details of that and refers to certain of the evidence in respect of it, but in dealing with that particular complaint, the tribunal found that while the appellant had made a complaint against the second respondent at this time, the reason for that was that the appellant had been resentful of certain other actions by the second respondent at that time. The matter is dealt with at paragraph 5(v) in the extended reasons. In dealing with this the tribunal said:

"The Tribunal was satisfied that this was a reason for her complaint about Mr Capper and did not relate to any alleged sex harassment."

[14]It seems to us from that, that in regard to the complaints that were made in or about September 1998, the tribunal's general conclusion about a smoke screen was not applicable. That, however, does not, in our judgment, undermine the conclusion arrived at by the tribunal. It clearly did not regard that particular incidence of complaint as something motivated by the desire to create a smokescreen on the fraud charges, but as something which had been motivated by a quite different factor. It had dealt with that explicitly in the course of its extended reasons, and clearly it was implicit in its decision that that was not covered by the overall and general conclusion which it reached, which it described as the smokescreen. In those circumstances, it does not seem to us that it can properly contended that the tribunal failed to take into account the evidence about earlier complaints, because it expressly sets them out in course of its judgment. It deals with them, it finds that they were not justified, and it also arrives at a conclusion as to why those particular allegations predating September 1998 had been made.

[15]Overall, the Employment Tribunal's decision was essentially based upon its findings of fact. Those findings of fact were ones open to it on the evidence, particularly in the light of the conclusion reached by the tribunal about the credibility and reliability of the considerable number of witnesses which it heard. The findings were not perverse and for our part we can see no arguable point of law which arises on this appeal. In those circumstances, it follows that this appeal must be dismissed.