MRS J A MARKS v BOUSTEAD INTERNATIONAL HEATERS LTD [2002] UKEAT 0415_02_1311

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 0415_02_1311

Case No Appeal No. EAT/0415/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS J A MARKSAPPELLANT

BOUSTEAD INTERNATIONAL HEATERS LTDRESPONDENT

Before

His Honour Judge Pugsley Mr S M Springer

Date 13 November 2002

[1]APPEARANCES For the Appellant MR ROBERT HELLAR (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme For the Respondent JUDGE PUGSLEY This is a case in which we have been assisted by Mr Hellar from the ELAAS Scheme who appears for the Applicant. This case is an appeal from a decision of the Southampton Employment Tribunal which was promulgated after the hearing of 25 and 26 February 2002 on 1 March 2002. The Applicant had brought a case on the basis of sex discrimination.

[2]The Tribunal noted that Mr Evans and the Applicant were working colleagues and that the matters against which complaints were made occurred in a context of their working relationship. The Tribunal at paragraph 5 made the findings of fact that they generally prefer the evidence of Mr Evans to that of the Applicant where there is any conflict. They stated that:- "This is because of his immediate reaction when the Applicant complained to him about certain aspects of his conduct in that he immediately telephoned his wife, contacted his manager and began making notes, which subsequently became document R4. During the course of his evidence, he was not evasive and freely admitted certain incidents without in any way trying to hide them. In fact, he freely volunteered information during the course of his evidence which, if he had had anything to hide, he would no doubt have not remembered or attempted to be evasive. For these reasons, we prefer his version of events where there is a conflict, although there was, in fact, very little conflict between the parties as to the actual events.

[3]The Tribunal then went through the allegations, almost like a shopping list, and we do not mean that in a frivolous way, in enumerating the various incidents. It is very difficult to see how a Tribunal could avoid doing it in this way. It is not fair to say that the global finding in paragraph 5 about the reason for preferring Mr Evans' is a simplistic conclusion. For example as we go along in the decision there are a number of reasons which they add for this finding as to credibility; for example at paragraph 39 and again at an incident recorded at paragraph 42 onwards.

[4]Moreover this Tribunal had the benefit of the decision in Driskel v Peninsula Business Services Ltd

[2000] IRLR 151

, a decision of the Employment Appeal Tribunal, presided by Holland J which was a decision which certainly made very clear that there were certain circumstances in which conduct is so gross that it is obviously detrimental.

[5]The Tribunal went right through all these matters and they prefer the evidence of Mr Edwards. They say in their decision at paragraph 44 that the Applicant had not mentioned an allegation in the witness statement but we are told by Mr Hellar it was in her IT1. This is correct and, at paragraph 42, the Tribunal note this. However we cannot see that this impugns the finding made at paragraph 44.

[6]Mr Hellar's argument is that this decision is perverse and adequate reasons have not been given. We have all read this decision individually. We have discussed it collectively since hearing the submissions of Mr Hellar. This is a Tribunal decision of members and a chairman. We have read the remarks of Mrs Marks about the decision. They go to something like thirty seven pages of fairly closed typed comments on the Tribunal's decision. The reality is that in this case the Applicant dislikes the decision. This is understandable and she is seeking to reverse the decision of fact that the Tribunal had made. We do not have jurisdiction to allow the appeal to proceed on that basis. We do not consider that this is a case of perversity. We can find no flaw in the logic or the reasoning of the Tribunal. The findings the Tribunal made were matters that were open to them on the evidence.

[7]We take if we may the decision of the House of Lords in Piglowska v Piglowski [1999] 3 All England Reports at 632 and we take the speech of Lord Hoffmann at 643 where he quotes a former decision in which he said this:

"'The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge's overall valuation.' The second point follows from the first. The exigencies of a daily court room life of such that reasons for judgments will always be capable of having been better expressed. This is particularly true of an unreserved judgement such as the judge gave in this case but also of a reserved judgment based upon notes, such as given by the district judge. These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account."

After dealing with the particular statutory provisions with which that case was concerned, Lord Hoffmann goes to say this:

"An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself. The reason why I have taken some time to deal with the Court of Appeal's assertion that the judge did not realise he was entitled to exercise his own discretion is that I think it illustrates the dangers of this approach."

[8]The reality is that this was a case heard by a Tribunal; that is not merely a lawyer. There were two members of the Tribunal. They came to a decision. In our view it is a well reasoned decision. The fact that we may not have found the facts as they did had we heard the evidence is an academic irrelevance because we have not heard the evidence. We see no error of law in the decision of the Employment Tribunal. We cannot say that they have failed to give adequate reasons. Therefore inevitably we do not consider this is a case where there is an identifiable error of law which justifies this going to a full Tribunal hearing. We therefore dismiss this appeal.