MS C D HOBSON v LONDON BOROUGH OF HACKNEY [2001] UKEAT 1363_00_0606

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1363_00_0606

Case No Appeal No. EAT/1363/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS C D HOBSONAPPELLANT

LONDON BOROUGH OF HACKNEYRESPONDENT

Before

Mr Justice Lindsay

Date 6 June 2001

[1]APPEARANCES For the Appellant IN PERSON MR JUSTICE LINDSAY (PRESIDENT) We have before us, by way of a preliminary hearing, the appeal of Ms C D Hobson in the matter Hobson v London Borough of Hackney and, this morning Ms Hobson has appeared before us in person.

[2]The history of the matter is this, that on 27 July 1999 Ms Hobson lodged an IT1 for sex discrimination, breach of contract and "health and safety" that was given the number 390/99. On 26 August 1999, the respondent to that, Hackney, put in its IT3 mentioning, amongst other points, that they claimed that Ms Hobson had never been employed by Hackney but was rather a locum employed by way of an agency. On 25 February 2000, there was a directions hearing and at that directions hearing no order was made for the prior exchange of witness statements. On 13 March 2000 Ms Hobson withdrew the breach of contract and health and safety allegations but on the same day, 13 March 2000, she issued a second IT1; this was given the number ending 27/00, and was for sex discrimination. She had been employed for less than a year, from 18 June 1998 to 20 May 1999. On 17 April 2000, Hackney put in an IT3 as to the IT1 27/00. A time bar point was raised as to events before 14 December 1999 and otherwise there was a denial of Ms Hobson's claims.

[3]There was then a hearing at Stratford between 12 and 15 June 2000 and then the members of the Tribunal met on 10 August 2000 in Chambers and on 8 September 2000 the decision, which was the decision of a three-person Tribunal under the Chairmanship of Mr B.C. Buckley, was sent to the parties and it was:

"The unanimous decision of the Tribunal is that the Applicant was not discriminated against by the Respondents on the grounds of her sex."

[4]On 16 October 2000, Ms Hobson presented a Notice of Appeal. On 21 November 2000 she put in an affidavit alleging and substantiating by her evidence, as she would claim, that there had been bias at the Tribunal hearing. In the ordinary way that affidavit was sent to the Chairman for his comments and his comments were given in December 2000.

[5]We need first to deal with those allegations as to bias and improper conduct on the part of the Employment Tribunal. The complaint really falls into five separate parts. The first is concerned with the admissibility of documents and what Ms Hobson says is this, in paragraph 2.2 of her Notice of Appeal on our page 10. She says:

"On 12 June 2000 a witness for the Respondent was given leave to give evidence prior to the Applicant being cross-examined. In cross-examination a document "

LAC Review 9.3.99" was offered to the Tribunal but was disallowed because the contents were not made anonymous. On 14 June 2000, the Respondent's witness, Elaine Peace, produced a document in an attempt to support her assertions, which the Tribunal allowed time for her to make the contents anonymous. This shows bias towards the Respondents on behalf of the Tribunal and is contrary to the law as stated in Aberdeen Steak Houses Group v Ibrahim EAT 1988 , which stated "tribunals must admit any evidence that may be probative of any issue relevant to the case.""

[6]It seems to us that that complaint represents a misunderstanding. The witness, Mr Roger Smith, appears to have been interposed by consent. Ms Hobson's representative at the time seems to have given consent. Moreover, there was good reason for the interpolation of that witness. The Chairman says in his letter; "On 12 June 2000, by consent of the parties, a witness for the Respondents, Mr Roger Smith, was interposed after the Applicant had given her evidence in chief. This course was taken because the witness was due to give evidence in another case the following day. Mr Smith's evidence took the rest of the day." A little later the Chairman says:

"Had there been any objection to either of the witnesses being interposed, then it would have been necessary to give a ruling. However, this was not required."

[7]As for the document put by the Applicant's representative to Mr Smith, it seems that it was not in fact disallowed; it was used in evidence but with care having been taken so that the clients of the Welfare Service were not named. The Chairman says this:

"As regards the suggestion that the Applicant was not allowed to put a document to Mr Roger Smith because it had not been made anonymous, whereas one of the Respondents' witnesses is alleged to have been assisted to make a document anonymous, I refer to a direction given by a Chairman of Tribunals by a letter dated 6 June 2000 that "both parties should delete all names of the Respondents' clients from the documents and witness statements to be used at the hearing, referring to clients by initials only"

. Consequently I was concerned that no document should be used in the course of the hearing which would enable "clients" of the Respondents' social services department to be identified. When Mr Roger Smith was cross examined, a document was in fact put to him which was not in the bundle and which had not been edited in the manner directed. The document was put to Mr Roger Smith and he was asked and answered questions about it without identifying any of the persons referred to in the document. The document was a "review" in the case of a family with which the Applicant had been concerned." So the document was not disallowed; it was used but, as I mentioned, with care having been taken to ensure that the clients were not named. So far as concerns the admissibility of the document which Elaine Peace, on the respondents' side, wished to produce, there is no reason to think that it was not properly admitted into evidence. If, after the correct procedure had been pointed out by the Chairman, the document was then made anonymous, that was not bias but simply a following through of the correct procedure which had been pointed out to the parties.

[8]A second allegation is perhaps best given the title "Giggling". What the appellant says is this:

"The Applicant wishes to complain about improper conduct and bias on behalf of the Chairman and 2 Lay Members in so far as they joined in and giggled and tittered with the Respondents witness, Ms Elaine Peace when she giggled and tittered on being asked if she had heard the conversation referred to as taking place on October 16 1998 in a supervision session whilst discussing a Child Protection case. The witness, Elaine Peace and the entire Panel's behaviour was improper and showed bias toward the Respondents as it was concerning a conversation that had disturbed and demeaned the Applicant. In fact the Applicant left the Tribunal Hearing Room on her complaint being subjected to the above tittering, in order to compose herself, and the matter had to be adjourned for 10 minutes, leaving the Respondents alone with the Tribunal Panel members."

What the Chairman says about that is this:

"I have no recollection of the witness Ms Elaine Peace either giggling or tittering as described by the Applicant or that "the panel joined in and giggled as well"

. There was an occasion when the Applicant left the Tribunal room and it may be that she was upset by the amused reaction of the witness Ms Peace to a question put to her in cross-examination by the Applicant's Counsel. The proceedings were halted and the parties were sent out of the Tribunal room. The parties returned after a short period when the Applicant was ready to continue. At no stage were the Respondents' witnesses left alone in the Tribunal room with members of the Tribunal."

[9]It may or may not have been appropriate of Ms Peace to be amused. If she was amused, it may be that the Tribunal could not help a moment's amusement as well, but, of course, a moment's spontaneous humour can grow into something quite inappropriate, such as a mocking debasement of one party's case. But Ms Hobson does not gather any support from her Representative or her witnesses, if any, and there is no reason why her version should be more believed than that of the Chairman and the Chairman's version has the merit of being supported by what one would ordinarily expect of a Tribunal and also by the very full and careful decision given at length which, by its careful evaluation of the evidence and arguments which the Tribunal received, is completely inconsistent with any sustained demeaning of Ms Hobson's case. Her case may not have been accepted by the Tribunal but the decision shows that it was fully evaluated.

[10]The next complaint of this character, namely, in relation to the conduct of the Tribunal hearing, is this: it is best given the title Irrelevance , Ms Hobson says:

" Irrelevance The Tribunal consistently allowed the Applicant to be extensively cross-examined about such matters as her previous work experience, which spans some 30 years and other matters that she was doing in non-working time and the Chairman himself even asked questions about some MCT results. By so doing the Tribunal erred by allowing irrelevancies into the proceedings and as such prolonged the Hearing to such an extent that the Hearing ran out of time and used the day that was set aside for deliberations to be used for evidence. This meant that the Tribunal Panel were not able to meet until August 10 th 2000 after hearing and seeing the witnesses last on 15 June 2000, thus putting the Applicant at a disadvantage."

The Chairman's answer to this is as follows:

"The Applicant was asked questions in cross-examination and by the Tribunal about her previous experience in social work and generally. These questions were relevant since the Tribunal were having to consider whether the decisions made by the Respondents not to offer the Applicant a permanent job and, as a consequence, to terminate her locum appointment were taken for credible non-discriminatory reasons. It was the Respondents' case that, having regard to the references which they received, the Applicant was not suitable for the appointment which had been provisionally offered to her subject to references. It was part of the Applicant's case that she was under pressure not only by reason of her workload for the Respondents, but also by reason of the fact that she was attempting to pass her Bar examinations in her own time."

There is no ground that we can see for accepting that Ms Hobson's case suffered by being prolonged in the way that she alleges, nor that irrelevant matters were unfairly pursued by the Tribunal or by the respondents at the Tribunal.

[11]The next complaint may be given the title Leading Questions ; the complaint is as follows:

" Leading Questions The Chairman of the Tribunal Panel consistently allowed leading questions to be put to the Respondent's witnesses whilst they gave their evidence-in-chief, despite protestations from the Applicant's representative. In view of the decision of the Tribunal, the applicant complains that the Tribunal gave undue weight to this evidence."

We must have in mind Employment Tribunal Rule 9 (1) which not only relaxes rules of law as to the admissibility of evidence but actually encourages the Tribunal itself to intervene in the questioning of witnesses rather than leaving such matters wholly to the advocates. Ms Hobson gives no example of a single leading question, still less one that operated to her disadvantage. Nor, again, does she show any support from her advocate or any witnesses.

[12]The next complaint is about witness statements and it is this:

"There was no simultaneous or sequential exchange of witness statements. Instead, the Respondents were allowed to introduce unsigned and undated statements and without including statements of truth. The Applicants case followed the complaints in her Notice of Appearance, whereas the Respondents Defence had not been particularised in their Grounds of Resistance. This put the Applicant in difficulties in her ability to rebut the Respondents position. Because of the "laissez faire" attitude of the Tribunal, the Tribunal gave undue weight to the Respondent's evidence."

It is quite common, in the absence of directions to the contrary, for witness statements at Employment Tribunals to be exchanged only on the day. There had been, as we have mentioned, a directions hearing on 25 February 2000 and, so far as one can tell, neither Ms Hobson nor her advisers had then asked for directions as to pre-hearing exchange of witness statements. At all events, no order was made to that effect and, if no such order was made despite an application having been made in that behalf, then there should have been an appeal, and there is no sign of that either. Nor is there any indication of Ms Hobson's advocate at the Employment Tribunal asking for an adjournment, either long or short, in order to consider the witness statements produced by the respondents on the day. Nor can it be accepted that the respondent's case had not been made sufficiently clear. There was the IT3 of 26 August 1999, some two pages of typescript, and the IT3 of 17 April, some 4¾ pages of typescript or so and together they indicated, fully enough one might think, the outline of what was to be the respondent's case. But even if that was wrong, if Ms Hobson had felt that the Respondent's case was not sufficiently particularised then she should, by herself or by her advocate, have applied for particulars ahead of the hearing. But there is no indication that that was done.

[13]I think we have now examined all the allegations of bias made on behalf or by Ms Hobson as to the proper conduct of the Tribunal. We do not find any reasonably arguable case and therefore the issue of bias is not to go the full hearing.

[14]Turning then separately to more straightforward errors of law, Ms Hobson's Notice of Appeal and her skeleton argument are long on assertion but relatively short on identification of errors of law. There is a complaint that the well-known test in Meek v City of Birmingham is not satisfied, but the Tribunal sets out the facts which they found and their conclusions drawn from them to a degree which, in our view, well satisfies the requirement that the loser should be able to see why she had lost and to see also whether any error of law was involved in the reasoning under which she had lost. There is a complaint made by Ms Hobson based on the Qureshi case that the Tribunal looked at incidents only in a fragmented way and never stepped back to see the true picture and evaluate it as a whole. But the Tribunal had the point in mind in referring to another case of a similar kind; they say this:

" In Driskel-v- Peninsula Business Services Limited & Others EAT 2000 IRLR 151 Tribunals were given guidance as to the correct approach to adopt in cases of sexual harassment. It was said that the Tribunal should find all the facts of the case that are prima facie relevant, but without at this fact finding stage making any assessment of the discriminatory significance, if any, of individual incidents. It was said that to make ad hoc assessments of individual incidents may be to overlook the impact of the totality of successive incidents. It was stated that the Tribunal should, having found the facts, make a judgment as to whether those facts disclose that the employer had treated the complainant less favourably than he would have treated a male employee."

We have no reason to think that the Tribunal did not obey that self-direction. The Qureshi case can all to easily be overplayed. If a Tribunal fails to look at each separate incident an appellant will then complain that no weight at all seems to have been given by the Tribunal to the incidents (let us suppose) numbered 4, 8 or 17, or something on those lines. If a Tribunal does look at each incident, an appellant will then complain that in its assessing each incident, numbers 1 to 20, let us say, the Tribunal failed to look at the total picture. Two things, as it seems to us, emerge. Firstly, whilst an Employment Tribunal must step back to examine the whole picture, it needs also separately to assess clearly separate alleged incidents. Secondly, if each such separate incident can be seen to amount to nothing at all , (and we would want to underline nothing at all), then, however many incidents there are, the total picture will also be blank. To use an analogy, that corresponds to 20 x 0 or 40 x 0 still being 0. But, before assessing the final figure as 0, or regarding the picture overall as blank, one has to be very careful to ensure that each separate incident truly does amount to nothing at all because (to continue with the mathematical analogy) 20 x ¼ is 5 or 40 x 1/10 is 4. One can see that in a corresponding way minor but not wholly nugatory or negligible incidents can have a cumulative effect. Moreover, where there is a history of not entirely negligible events, incidents may require more weight to be ascribed to them than otherwise would be the case. The mathematical examples that I gave are not to be thought to be the whole case by any means and a sort of progressive loading can be appropriate to be given to incidents fairly to evaluate the total picture.

[15]But all this is very much a matter for the Tribunal to evaluate for itself against the background of a proper direction on the law. Here, that direction, based on the Driskel case, seems to us entirely proper and we have no reason to think that the Tribunal failed to obey it. Accordingly we see no arguable error of law in that part of Ms Hobson's case.

[16]In her skeleton argument, Ms Hobson takes a point about her reference, written by a Mr Mason. It obviously formed a large part of the case. She said of it:

"He describes myself as a woman in language that he would not describe a man and shows his latent and unconscious hostility and motivation of vindictiveness towards me"

The Tribunal set out that reference in full. They carefully set out, too, the complaints made by Ms Hobson as to the reference. What they concluded was this:

"The terminology of Mr Mason's reference is said by the Applicant to be stereotypical of a discriminator against women We have read the terms of the reference carefully and we cannot find that any reasonable reader would consider it to be couched in any such terms."

A little later they said:

"In our assessment this reference was not, in its language, discriminatory. If the name and gender had been obliterated no reasonable reader of the reference would conclude from its terms that this must relate to a woman. In so far as it expressed judgments as to the Applicant's abilities, this is one of the purposes of providing a reference."

It is impossible, in our view, to describe the Tribunal's reaction as being in arguable error of law.

[17]Then, in her skeleton argument, Ms Hobson complains about the withdrawal of a job offer. There was an offer made to her but it was conditional on satisfactory references being available. Mr Smith of the Borough gave a satisfactory reference but, as to him and in relation to the reference, the Tribunal said:

"It was a satisfactory reference, however it did not purport to cover a period of time other than from June until November 1998."

Mr Smith had, in fact, only a very limited knowledge of the applicant's work as a direct manager. There was therefore every good reason for the Borough to have sought some other reference and Mr Mason's reference was unsatisfactory in the sense of not commending Ms Hobson for the job. The Tribunal look into this; they said:

"In a discussion on 27 April 1999 between Ms Peace, Mr Smith and Mr Mason, it was decided by Ms Peace to withdraw the offer of the permanent position, because of the lack of satisfactory references."

Ms Hobson's complaint, and this is as recorded by the Employment Tribunal, was that:

"She felt that Mr Mason manipulated Ms Peace and caused her to withdraw the offer."

While the Tribunal held this, they said at paragraph 9:

"When Mr Mason wrote his reference, it expressed serious concerns as to the Applicant's abilities. It led to the withdrawal of the position by Ms Peace. Ms Peace also had some other relevant information to support her decision from the London Borough of Southwark, as well as other information as to the standard of the Applicant's work. She believed this to be below the standard to be expected of someone at the Applicant's level. In particular, she was aware of the criticisms of her report in the 'S' Case by the Respondents' legal officer, Miss Doreen Forrester-Brown. The decision not to confirm the provisional appointment was clearly taken by Ms Peace, applying her own assessment as to the qualities of the Applicant from the references obtained and other information before her. The Applicant's suggestion that she was manipulated into this decision by Mr Oliver Mason has not been established. The terminology of Mr Mason's reference is said by the Applicant to be stereotypical of a discriminator against women. We have read the terms of the reference carefully and we cannot find that any reasonable reader would consider it to be couched in any such terms."

A little later the Tribunal said; "The decision to withdraw the offer of a permanent post was made by Ms Peace on 27 April 1999 on the ground that the Applicant's references were not satisfactory." And later again:

"This was not done in response to the Applicant's complaint of 20 May 1999. We are satisfied that the decision to terminate the agency job was, in fact, made on 27 April 1999. The fact that it was not put into effect until 26 May 1999 was because it was anticipated that there would be a discussion between Ms Peace, Mr Mason and the Applicant as to her last day of agency working, following the decision that she was not appointable to the permanent post."

[18]It cannot be said, in our view, that there was anything irrational or insufficiently explained in this part of the case. The Tribunal, as it seems to us, came to conclusions that appeared to have been available to the Tribunal on the evidence which it heard. We are not able to find any arguable error of law (and we must emphasise, of course, that it is only errors of law with which the Employment Appeal Tribunal can deal) in relation to the withdrawal of the job offer.

[19]Next, the skeleton argument seems to challenge whether there was, indeed, a meeting on 27 April 1999. We have already quoted some passages from the Extended Reasons of the Tribunal giving findings of fact in relation to that meeting. It was for the Tribunal to assess the overall effect of the evidence which they received. It is no impediment to a finding that there was a meeting on 27 April at which it was decided to withdraw the job offer that Ms Peace had written a memorandum to that effect a few days earlier. Nothing could be more usual, surely, than a memorandum by one member of a team advocating a particular course, followed by a meeting of all members of the team including that one then resolving to adopt that course. Ms Hobson complains in her skeleton:

"The Tribunal do not adequately explain why it took another month to dismiss the Applicant from the meeting of 27 April 1999."

But the Tribunal does deal with that, as we have already cited. They said the fact that it was not put into effect until 26 May was because it was anticipated that there would be a discussion between Ms Peace and Mr Mason and the applicant as to her last day of agency working following the decision that she was not appointable to the permanent post. Then Ms Hobson complains that the Tribunal relied upon a critical memorandum, that of Miss Forrester-Brown of 10 May 1999, in support of the respondent's failure to offer her the permanent post, a decision made earlier, as the Tribunal found, on 27 April 1999. But the respondent did not write to Ms Hobson as to the termination of the temporary agency contract until 26 May 1999 by which time it would have been possible for the Respondent to have had in mind the critical memorandum of 10 May. The Tribunal said of Ms Peace:

"Ms Peace also had some other relevant information to support her decision from the London Borough of Southwark, as well as other information as to the standard of the Applicant's work. She believed this to be below the standard to be expected of someone of the Applicant's level. In particular, she was aware of the criticisms of her report in the 'S' case by the Respondents' legal officer, Miss Doreen Forrester-Brown."

Nowhere does the Tribunal say in terms that the respondent relied upon the memorandum of 10 May in relation to the decision of 27 April and, indeed, one only has to say that to make it plain that they would not have been able to come to such a view. But it was material to mention the memorandum of 10 May because the Employment Tribunal had to consider whether the cesser of the agency contract on 26 May was an act of sex discrimination or victimisation. The fact that by then Ms Peace was aware of the critical memorandum could properly conduce to a view, which the Tribunal held, that the cesser of the agency contract was for reasons other than sex discrimination or victimisation. One has to accept that the point could have been better explained by the Tribunal but we do not see that there had been any arguable error of law in the reference that it made to the 10 May memorandum.

[20]And then Ms Hobson has a head of complaint marked Reasonableness of Dismissal , and she refers to the well-known Burchell case, a case as to unfair dismissal. But there was no complaint by her of unfair dismissal, nor could there be, given the relatively short length of her employment. And next she has a heading marked, or which could be given the label, Demeaning attitude . The Tribunal heard the evidence. They said:

"We believe the Applicant was hypersensitive in giving the words of Mr Mason this meaning, and in the months that followed she has put an interpretation on the words used by Mr Mason that no objective observer would have taken to be the case. With the benefit of hindsight, it is always possible to say that things should not have been said, or should have been expressed differently, however we come firmly to the conclusion that no sexual harassment occurred in what was said by Mr Mason on 16 October 1998 to the Applicant."

Of another incident the Tribunal says this:

"As to the incident when supervision recommenced on 7 May 1999 and Mr Mason is alleged to have used both hands over his stomach to indicate a woman in pregnancy, this is not an action which a reasonable person would regard as demeaning of women. We consider that the Applicant has seized upon this gesture to support a decision which she had come to that the only reason for the bad reference was the fact that Mr Mason was a discriminator against women."

Ms Hobson asserts in her skeleton argument the motive and intention of the conversation of 16 October 1998 was to demean and degrade the applicant but there is no hint of any evidence having being given to that effect other than perhaps on Ms Hobson's say so and certainly there is no finding to that effect. Next, Ms Hobson complains that the Chairman's reference to her case as having been that she was under pressure not only by reason of her workload but "also by reason of the fact that she was attempting to pass her bar exams in her own time." She says in her skeleton:

"This is utter nonsense. At no point has the Applicant attributed her part time endeavours to any of the problems at LB Hackney. It was stated in the reference by Oliver Mason that the Applicant had been under stress because of her Bar Exams, but like everything else in the reference there is not a shred of evidence for this and in fact does not add anything to an allegation of unlawful sex discrimination and does not have any particular relevance to their decision."

However if Mr Mason had said as it is there suggested he did, then there was some evidence from which the Chairman could have formed the view which he did, but, more importantly, Ms Hobson herself, in the letter of 9 April to which the Employment Tribunal refers, made a number of observations in the area, and there are other references on the same topic. Thus the Tribunal said:

"On 2 November 1998 the Applicant and another social worker (Ms Michelle Dixon) began to "job share"

. They both wished to reduce their hours from full-time to part-time. In the Applicant's case this was because of the need to work for her Bar examinations. However, the Applicant found that she became "snowed under" with work in that her workload did not decrease. She complained to Mr Mason, but it did not result in any immediate lightening of her caseload." A little later the Tribunal says:

"Carol started in this team as a full-time worker. She requested to go part-time due to her commitments for qualifying for the Bar. Since October 1998 she has been job-share with another locum worker in the team, with an agreement to work two days per week. Since becoming part-time, Carol has had a high caseload, whose demands have exceeded her contracted hours. She has held one particularly complex case which has absorbed much of her time. Carol has also been under particular stress due to the demands of exams for her course."

That is part of the reference which was in issue. Then, later still, the Tribunal quotes the letter of 9 April 1999 which was a resignation letter written by Ms Hobson which was later retracted. The letter said, amongst other things, of her team manager:

"He has known of my study commitments and much earlier in the year I gave him a timetable of my exams and course commitments, but both of us have been too busy to sit down and sort it out in an organised way. Unfortunately, when my team manager was on annual leave, I made the decision that I needed to leave in order to concentrate for the last two months on my course requirements. Whilst it was probably not a surprise, the urgency which I gave it probably was. This was precipitated by two factors:- The second of those factors was: "

I received some results from an MCT exam I did in January 1999. I have to retake this and the civil procedure rules changed entirely in April 1999. I have to learn completely new set of procedures. This adds to my existing demanding workload …" That, presumably, is a reference to the Woolf reforms coming into effect in April 1999 and obviously the Chairman would have taken there to be a reference to Bar Exams. She also said a little later that she hoped her performance would improve. She said "My Team Manager discussed my letter of 9 April 1999 with me on 13 April 1999 and reassured me that there may be some strategies that could be implemented to help improve my performance and service delivery. Consequently I wish to withdraw my notice as from 16 April 1999 and apologise for any inconvenience this may have caused." Leaving aside when the conduct of the Tribunal is in issue or questions such as bias arise, criticism of a judgment of a Tribunal is properly to be limited to what the judgment says; later comments by the Chairman are unlikely to be appropriate to be considered on appeal. But, in the circumstances, Ms Hobson's complaint "this is utter nonsense" seems to us more indicative of fault in Ms Hobson rather than error of law in the Employment Tribunal.

[21]Her final complaint is this:

"The fact that the Tribunal reached this conclusion shows a fundamentally flawed approach and is founded on their comments at their paragraph 9 (g): "

In so far as it expressed judgments…" Based on the assumptions that it is all right to write what Mr Mason wants, then the Tribunal are going to accept what is written. This is so fundamentally flawed in law that is therefore reasonably arguable that the Tribunal accepted LB Hackneys version of events without too much analysis such as is required by them." This seems to us a misunderstanding in the Tribunal's comment. First, they state her complaints about Mr Mason's reference. They said:

"She stated that by referring to her need for consultation and reassurance Mr Mason was patronising of her and implying childlike qualities. In stating that she was not able to prioritise or contain her thoughts, he was making judgments of her work"

The Tribunal in a passage which we have already cited said, inter alia:

"In so far as it expressed judgments as to the Applicant's abilities, this is one of the purposes of providing a reference."

They are not saying that Mr Mason's evidence has to be accepted, right or wrong. What they are saying is that it is no criticism of a document required to be judgmental that it expresses a judgment.

[22]We have now attempted to deal with all the issues raised by Ms Hobson's skeleton, I hope in sufficient detail, and we have found no arguable error or law to be raised there. We must therefore dismiss the appeal even at this preliminary stage.