MINISTRY OF AGRICULTURE FISHERIES AND FOOD v SHIRLEY JOY SWAINE [2001] UKEAT 789_01_2811

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 789_01_2811

Case No Appeal No. EAT/789/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MINISTRY OF AGRICULTURE FISHERIES AND FOODAPPELLANT

SHIRLEY JOY SWAINERESPONDENT

Before

His Honour Judge D M Levy

Date 28 November 2001

[1]APPEARANCES For the Appellant MR DAVID BARR (of Counsel) Instructed By: Ministry of Agriculture Fisheries & Food Legal Division B2 Room 27 55 Whitehall London SW1Q 2EY JUDGE D M LEVY QC : This is the ex parte hearing under the new procedure (which is not quite so new now) of an appeal by the Appellant, the Ministry of Agriculture Fisheries and Food against a decision of an Employment Tribunal sitting in Southampton on 3 and 4 April 2001. There was a reserved discussion hearing on 3 May 2001.

[2]The issue before the Tribunal was whether the Appellant in this appeal had discriminated against Ms S.J. Swaine ("the Respondent") on the grounds of sex. The unanimous decision of the Tribunal was that it had. The decision was sent to the parties on 17 May 2001. Mr Barr, who appeared below (the Respondent was in person) has addressed us this morning on a Notice of Appeal which was lodged here and dated 25 June 2001 and he seeks for the appeal to go forward on omissions of findings of fact by the Tribunal and a submission that the important decision in Chief Constable of West Yorkshire v Vento

[2001] IRLR 124

has been misapplied by the Tribunal. He has provided us with the chronology which unfortunately omitted what is, perhaps, the most significant date in the employment history of the Respondent, namely that the complaints made about her followed an extraordinary good appraisal of her on 15 March 2000, a few weeks before a meeting between her and Mr Longshaw. The Tribunal found that meeting took place on 2 June 2000. It was the catalyst for the proceedings in the Tribunal.

[3]As to the failure to make important findings of fact, we have considered for some 50 minutes with Mr Barr the alleged failures. In our judgment, if one looks at the long letter which was written to the Respondent following a meeting on 2 June 2000, much of the matters of which complaint is made there are included within the Extended Reasons. We therefore feel that on these aspects of the proposed appeal Mr Barr (with respect) is nit-picking and there is nothing to go forward for a full hearing and we will not allow those issues to be raised further.

[4]As to the misapplication of the Vento case, having heard from Mr Barr we are satisfied there is an arguable case to go forward. One of the points which he makes is that the Tribunal used as a comparator a Mrs Norrie and in paragraph 47 of the Extended Reasons all that was known of Mrs Norrie is set out. He has asked that the Chairman be asked to give all evidence with regard to Mrs Norrie. If, however, the fact is that there will be nothing other than that which is in paragraph 47, it will be a little much to ask the Chairman to reproduce what is there. The Respondent was in person below and, therefore, rather than ask her to admit paragraph 47, we think a proper course would be to ask the Chairman to produce such notes (if any) as to Mrs Norrie in his notes of evidence, other than that which is contained in paragraph 47 of the judgment.

[5]We think this is a Category C appeal. We hear Mr Barr as to the estimated length and the normal order for exchange of skeleton arguments will be contained in the order. Amended Notice of Appeal 14 days.