MR D R GOULD v (1) THE GOVERNORS OF HAILEYBURY & [2001] UKEAT 635_00_0702

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 635_00_0702

Case No Appeal No. EAT/635/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR D R GOULDAPPELLANT

(1) THE GOVERNORS OF HAILEYBURY &RESPONDENT

Before

Mr Justice Lindsay

Date 7 February 2001

[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of preliminary hearing a clutch of cases where the applicant in each case is Mr D R Gould and the respondents are the Governors of Haileybury and Imperial Service College and the Governors of Lambrook Haileybury School. In this judgment we simply deal with the matter which is marked

EAT/635/00

. It is necessary to give a brief procedural background so that one can understand the foreground a little better. On 28th September 1997 Mr Gould lodged an IT1 claiming unfair dismissal and sex discrimination. On 21st October 1997 the employer responded with an IT3. That case was given a series of numbers at the Employment Tribunal that ends up 68/97. Then on 31st March 1998 there was another IT1 from Mr Gould; it was given a number that ends 56/98 and it was for unfair dismissal, sex discrimination, failure to give written reasons within two weeks of a written request for the same, breach of contract, unlawful deductions and complaint as to health and safety matters. On 30th November 1998 there was yet another IT1; this one was given a number that ends 38/98. This was for constructive dismissal, breach of contract and unlawful deduction from wages. On 21st January 1999 Mr Gould gave further and better particulars. In January 1999 there was an interlocutory hearing at which Mr Gould sought to amend his IT1. The Employment Tribunal refused him leave to amend his IT1 and Mr Gould appealed. On 5th July 1999 the Employment Appeal Tribunal overruled the Employment Tribunal's refusal and leave was given to Mr Gould to amend. On 13th October 1999 there was a direction that the respondents should serve witness statements by 15th October and that the appellant also should do so and that witness statements as to lesser witnesses should be available by the start of the hearing. We do not need to go into the directions in any detail.

[2]On 20th and 21st October 1999, 12th and 13th January 2000 and 27th March 2000, there was a hearing at the Employment Tribunal and the Employment Tribunal also considered the matter in Chambers on 30th March 2000 and 4th April 2000. So, not an inconsiderable hearing.

[3]On 4th May 2000 the decision was sent to the parties. The decision, so far as relevant for immediate purposes was this:

"2. The applicant was unfairly dismissed by the respondents as the respondents concede. 3. The applicant's claim for unfair constructive dismissal is dismissed on being out of time and it being reasonably practicable for a complaint in that respect to have been presented in time. 4. The respondents have unreasonably failed to provide a written statement giving particulars of the reasons for the applicant's dismissal as the respondents concede. The respondents shall pay to the applicant the sum of £886.38 being a sum equal to the amount of two weeks' pay. 5. There has been an unlawful deduction of the applicant's wages by the respondents and by consent the respondents shall pay the applicant the sum of £20. 6. The applicant's claim to sex discrimination and victimisation fail and are dismissed. 7. The applicant's claim to breach of contract succeed in so far as is shown in the extended reasons for this decision and by virtue of a finding that 30 April 1998 was the effective date of termination of the applicant's employment. 8. In so far as is necessary, the applicant's claims to unfair dismissal on health and safety and trade union grounds are dismissed upon withdrawal by the applicant. 9. On the 10th day of July 2000 there shall be hearing before this Tribunal to consider the remedy in respect of the unfair dismissal and breach of contract claims. 10. By way of directions, within 21 days of the date of the sending of this decision to the parties, the applicant is to supply to the respondents full written particulars of his unfair dismissal and breach of contract claims in relation to remedy with any supporting documents."

That, as I say, was sent to the parties on 4th May 2000. On 16th May 2000 Mr Gould requested a review on 15 different grounds. On 17th May 2000 Mr Gould added a further two grounds for review. On 21st May 2000 Mr Gould put a date and his signature to a Notice of Appeal which was received by the EAT on 23rd May 2000. On 8th June 2000 the review was refused except in one respect in relation to a question that we can succinctly refer to by saying "Gabbitas". There was to be a hearing as to the Gabbitas review on 10th July 2000. Extended reasons were given for refusing the review otherwise and for allowing it so far as referred to Gabbitas. On 14th June 2000 there was a further request for a review as to a different subject which we can simply call "Mrs Donovan". On 10th July 2000 the Gabbitas review was refused and the Donovan review was refused.

[4]On 10th July and 28th July 2000 there was the remedies hearing that had been foreshadowed in the decision earlier read. On 8th August 2000 there was a remedies decision sent to the parties. So far as concerned breach of contract, Mr Gould was awarded £7,417.03; for unfair dismissal he was awarded £8,745.88, so in all the award was of the order of £16,162.91. On 21st August 2000 Mr Gould requested a review as to remedies. On 7th September 2000 a review of remedies was declined.

[5]This Notice of Appeal with which we are immediately concerned, the one of 21st May 2000, is directed only to the decision sent to the parties on 4th May 2000. We have Notices of Appeal that will have to be mentioned later. Mr Gould, who has appeared in person before us this morning, tells us quite frankly that being only a litigant in person, albeit one with earlier legal training and qualification, he took the view, probably rightly, that if he did not put something in his Notice of Appeal at this first stage he might not be allowed to add it later and that it was better to be inclusive rather than exclusive and that perhaps some of the grounds were not really crucial to his case, but for all that, had been included. Some of the grounds, as we looked at them together in the course of his oral address, he accepted might not have the weight that he had hoped would be attached to them. But none, I think, has been formally abandoned and so we do need to say something about each of them. They are referred to numerically as 6.1, 6.2 and so on, down to 6.15.4. Rather than take up time fully explaining each, although some will need to be explained as we go along, we will take it that the numerical reference should suffice.

[6]The first one is 6.1 "Revelation of a 'without prejudice' offer". The Employment Tribunal does not record the matter as having been one in which matter without prejudice correspondence had been improperly disclosed, but so far as one can tell, deals with it as if it was a disclosure of matter that had earlier been put into the public domain. In their paragraph 4 they say:

"It was at an interlocutory hearing of the Tribunal (differently constituted from this one) on 8 January 1999 that a record was made of the respondent conceding the unfair dismissal of the applicant and also of the respondent being prepared to abide by the terms of a draft compromise agreement by a payment to the applicant of the sum of £15,364 in settlement together with a reference to be agreed and an apology in respect of the unfair dismissal subject to the terms to be agreed. Apart from the concession itself as to the unfair dismissal none of the other matters came to fruition and it has to be made clear that the offer of £15,364 was in respect of those claims referred to in the draft compromise agreement which included those of sex discrimination."

We feel that we cannot form an adequate or contrary view without Mr Gould giving us an explanation and moreover, since it may be necessary to be precisely sure what his explanation is, if only so that it can in a suitable case be sent on to the other side, it is an explanation that needs to be given in writing. There is a danger here for Mr Gould which we have mentioned and should mention again, and that is that, whilst claiming on this account that the decision was unjust, Mr Gould undoubtedly wishes to retain parts of the decision, the parts, of course, that he regards as in his favour. We would doubt whether that can be done. If a tribunal's decision is vitiated by the unjust knowledge and reception of a without prejudice offer, it might well be that the whole judgment has to be swept aside, unless it is clear that in some respects parts of it are, despite that, untainted. So this issue we shall adjourn as we shall later explain. Mr Gould has handed in a letter from Miles & Co, the other side's solicitors acting in the matter at the time, that mentions that an offer had already been referred to in earlier papers and quite what the earlier papers were and whether they were open or without prejudice and closed, is the sort of matter that will need to be explained. On this issue we adjourn so that Mr Gould is given the opportunity to make out precisely what his case is and how it came about that what he claims are without prejudice offers and acceptances were laid in front of the tribunal which should not have learned of them.

[7]6.2 is marked "Implied terms". We are not told precisely what terms were sought to be implied and, of course, one cannot imply a term without it being specified precisely what the term sought to be implied is; nor do we know on what grounds it was argued that implication of whatever term was appropriate. So, again, this is an issue on which we cannot take an informed view at the moment. One has to remember that the broad test for implication of terms is necessity and, therefore, Mr Gould can expect some difficulty, but for the moment, all we do is adjourn it for Mr Gould to be given an opportunity to state precisely what the terms sought were and on what grounds it was argued that they should be incorporated.

[8]6.3 is headed "Interest on damages", but this part of the overall case between Mr Gould and the Governors of Haileybury and so on, was little concerned with sums of money and interest on damages would only figure, if at all, on the relatively small sums that were then awarded, £886.38 and £20. The rest, of course, was left over for a later remedies hearing and it seems to us that the appropriate time to raise interest on damages, unless it is said to be just in respect of the small sums that we have mentioned, neither of which was strictly speaking damages, is best left over to consideration when the remedies hearing is dealt with.

[9]6.4 is headed the "The Respondent's three new witnesses". There is at the moment before us nothing to suggest that Mr Gould sought an adjournment to cope with the evidence of the three new witnesses or sought to exclude their evidence, either altogether or on particular issues, nor applied that the new witnesses should be heard only on terms that they should first supply a witness statement or anything of that order. It is far too late to object to the reception of their evidence unless a strong case is made out as to, for example, objection having been made at the time and precisely what was said and done. This is an issue, again, which requires an adjournment for Mr Gould to make out whatever his case was in detail. He must recognise that in the ordinary way, once evidence is received, it is difficult to dislodge it unless an application for an adjournment was made or objections were made or terms were sought but not ordered, something along those lines. At the moment we do not have any adequate information. So that is another issue that will require to be adjourned.

[10]6.5 is headed "Mr Hare's absence" and what the Notice of Appeal says is this:

"Mr Hare was a key witness in this case. There was a conflict of evidence on many points between that of the Applicant and Mr Hare's witness statement. The Applicant produced evidence of Mr Hare's dishonesty, for example an assertion which the subsequent testimony of a witness proved to be untrue. It is submitted that, under the unique circumstances of this case, it was unreasonable to discount the evidence of the Applicant in favour of Mr Hare's statement. Mr Hare was not even present to give evidence under oath or to be cross-examined."

The tribunal had said at paragraph 10:

"The Tribunal had with its papers an unsigned witness statement of Mr Hare to which consideration was given."

They said in their paragraph 9:

"The respondents were to have called Mr John Hare the headmaster of the school when the applicant was working there who had recently retired. Sadly, when it came to the time for Mr Hare to give evidence, he was not well enough to do so. There had in fact been an earlier adjournment of the Tribunal proceedings in case it would have been possible for Mr Hare to have come but at the adjourned hearing, a report on his medical condition was received from Dr F Hoffman which seemed to give cogent medical reasons for Mr Hare's inability to attend, and no issue was raised that this was not so."

Mr Gould in his Notice of Appeal says:

"It is submitted that the decision to prefer Mr Hare's statement is inconsistent with the evidence and it therefore wrong in law. This is particularly relevant to the tribunal's task of deciding whether a bad reference by Mr Hare to Devonshire House was unfair and/or amounted to victimisation."

Mr Hare's written statement was, of course, evidence. Any tribunal would recognise that the weight to be attached to a statement has to bear in mind that it has not been tested by cross-examination. It is conventional to attach less weight to a statement that has not been tested. But once one recognises that Mr Hare's statement was, indeed, evidence, it cannot be said that there was no evidence whatsoever on which the tribunal could have concluded as it did. Once there is some evidence on a point, an appellant has to recognise that it is for the tribunal to decide which evidence to prefer, if differences emerge. If there are differences, it might well be that the tribunal preferred the evidence of Mr Hare, even though not tested by cross-examination. If there were no differences well then, of course, a fortiori, the tribunal could adopt Mr Hare's evidence. But, whichever of those is correct, there is no error of law involved. Mr Gould says that lawyers acting in the case themselves gave evidence, which they should not have done, and also that they created the impression that Mr Hare could not attend the hearing, whereas the doctor's letter, he says, on mature reflection, but as was not visible to him at the time, falls short of making a case out that Mr Hare could not attend. Well, plainly the tribunal took it that it did make a case out for his non-attendance and that is an issue that has now gone. It was very much an issue for the time. It was for the tribunal to take a view on the matter presented to them and it does not lead to any error of law. So on 6.5 we see no arguable error of law fit to go forward to a full hearing.

[11]6.6. is headed "Two witness statements identical". The fact that two witness statements from different witnesses are identical goes, if anything, to credibility. But credibility is essentially a matter for the tribunal itself. It is not a matter of law for the Employment Appeal Tribunal. Under the same heading the point is taken that Mr Gould and his witnesses were in some way required to be kept separate from one another during the hearing, whereas the respondent and its witnesses were not required so to be separated. In fact, no order is in front of us as having been made by the Employment Tribunal on the point, but a further point is this: that where a party is an individual, who is a party and who is a witness is usually relatively easy to find out. But where one has as a party a corporate body, a legal person, then officers of that legal person are as if part of the legal person. So a gathering of individuals on the corporate side may not represent a gathering of witnesses and of the party but simply a gathering of different constituents of the party, albeit constituents who were intending to give evidence. Thus one has to bear that possibility in mind when alleging that whereas there was required separation on one side there was not required separation on the other. There seems to us here no arguable point of law. If objection was to be taken it should have been raised at the time.

[12]The next is 6.7 which is headed "Witness supplement not allowed as part of Applicant's evidence". What Mr Gould says on that is this:

"The Applicant provided a further supplement to his witness statement at the March hearing. He was told that it would not form part of his statement, even though he was prepared to be cross-examined on it; instead it was admitted as submissions, carrying less weight. It is submitted that this was unreasonable, considering the Employment Appeal Tribunal's decision dated 13th October 1999."

The Employment Appeal Tribunal's decision of 13th October 1999 did nothing to authorise delivery of a further witness statement on the fifth day of the case. Employment Tribunals quite often have to say, in relation to evidence, that enough is enough. Mr Gould felt that he was unfairly treated here, but a rather loose feeling of unfairness is not necessarily the foundation of an error of law. It is very much a matter for the tribunal in its discretion to permit or to exclude further witness statements at a late stage of the case. We do not see any error of law that is arguable here and, again, we emphasise that it is only errors of law with which we can deal.

[13]6.8 is headed "Indirect discrimination". The Employment Tribunal found, in effect, that whilst section 1(1)(b)(ii) of the Sex Discrimination Act 1975 was satisfied in conjunction with section 2(1), there had been justification within 1(1)(b)(ii). In their decision at paragraph 15 b) they say:

"… Even if we were to adopt a wider and more purposive interpretation of "requirement or condition", on the evidence such a requirement or condition is justified irrespective of the sex of the applicant by the nature of the policy adopted by the respondents namely, that only those members of staff who taught in the senior school were required to undertake the evening and Sunday duties. This was a reasonable and justifiable policy. It is not possible to construct a claim of indirect discrimination from these facts and so the claim cannot succeed."

It seems to us there is no arguable error of law here. There may have been a form of indirect discrimination, but, because justification found, it was not actionable.

[14]6.9 is headed "Exclusion of claim for accommodation" and there are some references that we ought to take up. The tribunal said, on what is our page 29 at subparagraph b):

"The applicant claims by way of breach of contract compensation in respect of his fringe benefit of living accommodation. The respondents' counsel submits that by virtue of Article 5 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 the Tribunal does not have jurisdiction to hear this claim."

They quote part of the contract. They say:

"The contract also provides as follows. "

The Teacher's occupation of the Accommodation shall not imply that the Employer shall as a condition of employment be obliged to provide the Teacher with housing accommodation". We conclude that the claim is in respect of a term imposing an obligation on the employee in connection with the provision of living accommodation and thus we have no jurisdiction to hear it. …" So to escape that form of exclusion Mr Gould says:

"It is submitted that as the contract did not oblige the employer to provide the teacher with accommodation, the provision of accommodation does not fall within the exemption submitted by the Respondent."

Mr Gould does seem here to be on the horns of a dilemma. If, as he says, the contract did not oblige the employer to provide accommodation, then the loss of accommodation is not a claim that can be entertained as a consequence of a breach of contract. If, on the other hand, there was an obligation to provide the teacher with accommodation, then, as the tribunal thought, the question of the specific exemption applies. One way or another we see no arguable error of law under that heading.

[15]6.10 is headed "Mr Cox and victimisation". Mr Gould here contrasts a finding of the Employment Tribunal with a single line or two of Mr Cox's witness statement. But Mr Cox gave oral evidence as well and the tribunal had the task of evaluation his evidence as a whole. That is the tribunal's particular province. To point to a possible inconsistency between evidence in a witness statement on the one hand and the finding by the tribunal on the other, is not to demonstrate an arguable point of law and none, in our view, arises on 6.10.

[16]6.11 is headed "Applicant's complaint to Mr Collins". Well, often a tribunal has to draw inferences as to how a person would have reacted or behaved without having received direct evidence on the point. It is quite often that evidence falls short of what really is needed. Mr Gould does not say that the relevant finding was contrary to the evidence, nor that it was an inference that could not have been drawn from the evidence, but, in effect, that if only he had been asked by the tribunal, he would have given a different answer to that which, by inference only, the tribunal ascribed to him. We see no arguable error of law there.

[17]6.12 is headed "The housemaster". This is a reference to paragraph 17 c) of the extended reasons; again there are some quotations from the extended reasons which we ought to set out. In 17 a) the tribunal says:

"… However, we will deal with the allegation which relates to the applicant's claim that matrons took photographs of the children in the dormitory which was acceptable but when the applicant did so with permission from a deputy matron, and under her supervision for the school magazine, he was given a written warning and the school purported to dismiss him. A little later: "b) The applicant had been on an outing at Thorpe Park with some of the pupils and the deputy matron. It was later in that day that the applicant took these photographs. They were taken in the boarding house of Mr Carr who was not happy when he discovered it. He reported matters to the headmaster and the applicant was interviewed about it thereafter. c) The applicant certainly did not have the permission of the housemaster to take these photographs but the point that we need to look at here is in relation to Section 1 of the Sex Discrimination Act 1975 and to ask ourselves whether the applicant received less favourable treatment on the grounds of sex. The matron certainly took photographs of the boys in similar circumstances but we find a clear distinction between the status and duties of a matron and those of a master unconnected with caring for boarders. A matron looks after the personal needs of the pupils. When the boys go to bed they are the responsibility of the housemasters and the matrons. The applicant did not need to be present in the dormitory for any purpose and we cannot accept that he was treated less favourably than the matrons were on the grounds of his sex. The grounds for the difference in treatment were not related to the sex of the applicant but to the difference in the roles of the applicant and the matron. Moreover, the applicant was disciplined because he did not have the permission of the housemaster which was a reason unconnected with his sex and it was the housemaster who was unhappy about the state of affairs. The matron and housemaster would be the persons one would expect to see in a dormitory and their presence is unlikely to be misconstrued in any way. The reason for the distinction being drawn with the applicant was that there could be some misconstruction or embarrassment in a situation where the applicant had no direct responsibilities for the welfare of those boys in their house."

That reasoning seems to us to be entirely sensible and practicable. It seems to us sound, whether or not Mr Gould had permission of the deputy matron and even supposing that the deputy matron had authority to give it. We see no arguable error of law arising under this heading, 6.12.

[18]6.13 is another reference to accommodation. The tribunal held that Mr Gould did not use the accommodation very much but that he had the opportunity to use it and did in fact use it. He asserts that he did not use it overnight but we do not understand the tribunal to have said that he used it overnight. He used it, at all events, because his furniture remained there. To assert that there was inconsistency because he did not use the accommodation overnight is, it seems to us, an entirely false point and does not amount to an arguable error of law.

[19]6.14 is headed "Sussex House School". Mr Gould says that one remark of the Employment Tribunal contradicts the evidence that he had given. So be it; it is for the tribunal to form their views on the evidence as a whole. The fact that a conclusion is reached that does not accord with the evidence of one party is, of course, no indication of an error of law.

[20]6.15 is divided up into .1, .2, .3 and .4, and is all under the broad heading "Decisions not ruled on by the tribunal". Mr Gould gives, therefore, four subheadings which, he says, were matters that were not ruled upon. He refers to the submissions that he made at the Employment Tribunal. We do not have those. We do not feel that we can come to an informed view on these issues and will have to revert to that issue.

[21]There is also 6.16 that could be headed "Mrs Donovan". This lady gave evidence and Mr Gould has come up with some questions that he could have asked but did not and to that extent no error of law appears on the tribunal's part.

[22]Therefore, summing up the position at this stage - and we emphasis that we are still at the preliminary stage - we do not permit any issue here and now to go to a full hearing. We adjourn this preliminary hearing to come back yet again, still as a preliminary hearing. At the restored preliminary hearing and in good time beforehand (as we shall explain) Mr Gould is going to need fully to explain on affidavit or sworn statement the facts surrounding his ground relating to the improper disclosure of a without prejudice offer. He does need to consider whether he wants to take the point, because there is the risk, that we mentioned earlier, that if he vitiates the conclusion of the Employment Tribunal he might vitiate the whole of it and might therefore have to start again. But that is a consideration that we merely warn of as a possibility. It is for him to consider.

[23]Secondly, Mr Gould is to indicate in writing the precise implied terms that he sought to have introduced and his grounds for saying that they should have been introduced. If he made written submissions on the point those will need to be seen; if he made oral submissions on the point, then he ought to summarise them.

[24]Thirdly, we mentioned the ground 6.4 which we earlier said was adjourned for further information and he must give that information.

[25]Fourthly, we are going to need copies of his written submissions in relation to the issues which he said should have been dealt with but failed to be dealt with by the Employment Tribunal. He needs to describe why they were of significance. It is not every issue, of course, that needs to be decided, and if one is going to make an argument that amounts to an allegation of error of law, there needs to be shown a powerful case why a decision on relatively subsidiary matters is not that, but is, in fact, truly significant.

[26]We will discuss in the moment how long Mr Gould will need. I would have thought that he ought to be given 28 days, but he might wish to be given less time or indeed more. That is a matter for him. When those subjects are dealt with, then this Notice of Appeal can be restored still for a preliminary hearing. The other issues where we have said that there is no arguable error of law are dismissed even at this preliminary stage today and they go no further, at any rate, without appeal to the Court of Appeal. But the issues that we have said need further development are in limbo, so to speak, and can be ruled on at the adjourned preliminary hearing and will be ruled upon in the light of whatever further information in writing has then been laid in good time before the Employment Appeal Tribunal. [ Discussion with Mr Gould about how much time he requires to put in his amended Notice of Appeal, affidavit or sworn statement and written submissions ]

[27]We will give 42 days then. I hope you have understood. You will get a transcript of today's hearing, which should, I hope, assist. But we will give 42 days from today to attend to the matters that we have described in this appeal.