MR M NEWNHAM T/A DIAL-A-ROD ENVIRONMENTAL SERVICES v MS L BERRY [2002] UKEAT 0506_01_2706

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0506_01_2706Case No Appeal No. EAT/0506/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M NEWNHAM T/A DIAL-A-ROD ENVIRONMENTAL SERVICESAPPELLANTMS L BERRYRESPONDENT
Before
Mr Justice Maurice Kay Mr P DawsonDate 27 June 2002
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT MR JUSTICE MAURICE KAY This is an appeal by Mr Newnham against a decision of an Employment Tribunal which sat at Southampton in January and February 2001. That Tribunal found that Ms Berry's claim for sex discrimination was well founded and it adjourned the matter for a remedies hearing, unless in the meantime the parties were able to reach agreement.[2]Mr Newnham now seeks to appeal against that finding of sex discrimination. In essence the appeal is put on the basis of perversity. It was common ground before the Employment Tribunal that the outcome of the case depended upon the credibility of Ms Berry.[3]She was employed as an accounts officer from 14 October 1999 until August 2000. There was a dispute as to whether she was dismissed at that time or whether she remained employed or whether she had voluntarily resigned, but that dispute, in the event, did not fall to be decided by the Employment Tribunal.[4]She made a number of allegations about the way in which Mr Newnham had behaved towards her from the beginning of her employment. 6 allegations had been set out in the Originating Application and a further 6 were referred to in the course of evidence and their absence from the Originating Application explained.[5]The allegations set out in the Originating Application were as follows: 8(i) "On 16 March 2000 [Mr Newnham] subjected [Ms Berry] to unpleasant remarks of a sexual nature, saying that he "only employed her for a shag" and that had backfired.(ii) On 23 March 2000 [Mr Newnham] said he would "only keep her on if she shagged him".(iii) On 4 May 2000 [Mr Newnham] took hold of her head and pulled it between his genitals. She states that this was in the presence of [another employee] who did not give evidence to us.(iv) On 22 June 2000 [Mr Newnham] came behind [Ms Berry] and touched her backside. On the same day he dropped a piece of blood-soaked cotton wool on the floor and asked if she had dropped anything, insinuating that she had dropped a tampon. This was witnessed by Dale Whitehall. Also on the same day [Mr Newnham] said that [Ms Berry] had something in her hair and then forcibly pinned her on the desk. The Applicant broke down in tears and went home.(v) On 27 June 2000 [Mr Newnham] subjected [Ms Berry] to criticism which was unjustified. [It was alleged that] the criticism was made because the Applicant would not co-operate with the Respondent over sexual matters.(vi) On 29 June 2000 [Mr Newnham] pulled up [Ms Berry's] skirt, placed a mirror up her skirt and remarked that there was a crack. The Applicant then left work because of stress and did not work after the beginning of July 2000."[6]The further allegations that emerged in the course of evidence were as follows: 9(i) "On 9 May 2000 [Mr Newnham] came behind [Ms Berry] in her upstairs office, slipped his hand around her waist and moved his hand towards her breast and said "Nice tits".(ii) On 18 May 2000, when collecting her wages, [Mr Newnham] said that he had lost a ball off his earring. He then said that the ball had been "attached to his dick". He had the earring in his mouth and offered it to her son, Thomas, saying, "Do you want something to eat?"(iii) On 30 May 2000 [Mr Newnham] came up behind [Ms Berry], pressed himself against her and said, "I'll show you what a real man is". He tried to put a pen and his hand down the back of her trousers. [Another employee] was present.(iv) On 31 May 2000, when borrowing a van to move rubbish, [Mr Newnham] came up close to [Ms Berry] and made a remark about her father and incest. He then tried to put his hand up the back of her skirt. [Ms Berry] ignored [Mr Newnham].(v) On 21 June 2000, when [Ms Berry] asked for a sub on her wages, he said that he would "come round at 9.00pm and shag her".(vi) On 29 June 2000, there was a second mirror incident, separate from the first one alleged in the Originating Application."[7]The conclusion of the Employment Tribunal was that Ms Berry had told the truth about these matters and proved that they had taken place. Clearly it was a difficult case for the Tribunal on the evidence. On the one hand it was faced with the evidence of Ms Berry, which was completely denied by Mr Newnham, so far as these unpleasant allegations are concerned. On the other hand there were called, as witnesses, employees who had been present on some occasions but who stated that they had not seen or heard that which Ms Berry was alleging.[8]However, Ms Berry gave evidence that she had kept a diary of events from 16 March. The diary played a significant part in the deliberations of the Employment Tribunal. The Tribunal examined the original and a photocopy of the entries and came to the reasoned conclusion that it was a genuine document, having been compiled at the times stated by Ms Berry, and relating to genuine incidents. The Tribunal described their assessment of that diary as "crucial".[9]So far as the other witnesses are concerned, the Tribunal concluded that they were being honest in their evidence that they had not seen or heard anything corroborative of Ms Berry's allegations but the Tribunal concluded that this might have been because of a different perspective or might have been the result of genuine forgetfulness.[10]As we have said, the appeal to this Appeal Tribunal is put fairly and squarely on the basis of perversity and in particular it is suggest that, having found these other witnesses to be honest, it was perverse of the Employment Tribunal to make factual findings in favour of Ms Berry. Moreover, there is the complaint that, if the Tribunal were impressed with the honesty of these other witnesses, they out to have caused those witnesses to be questioned about the possibility of forgetfulness, (or other explanation) rather than simply come to a conclusion about it.[11]When the matter came before our colleagues on 15 November 2001 the judgments given by His Honour Judge Levy QC was at pains to point out that, whilst they found an arguable case: 4 "…it is one that may have many problems for the Appellant."[12]We have considered the grounds of appeal and the findings of the Employment Tribunal. It is axiomatic that anybody seeking to challenge such findings, purely on the grounds of perversity, has a high handle to surmount. That has been well known for a considerable time and has recently been reiterated by the Court of Appeal in Ubella v Crofton , a judgment given on 31 May 2002, where it was stated that:
"an appeal to the Employment Appeal Tribunal, based on perversity should succeed only if an overwhelming case was made out that the Employment Tribunal had reached a decision which no reasonable Tribunal, on a proper appreciation of the evidence and law, would have reached. Even if the Appeal Tribunal had grave doubts about the decision it had to proceed with great care and resist any attempts by the parties to present appeals on facts as raising questions of law."
Lord Justice Mummery gave the lead judgment. It is reported in the Times for 20 June 2002.[13]In our judgment it is simply not possible for Mr Newnham to establish perversity in the present case. The case before the Employment Tribunal was one which cried out for a detailed assessment of the witnesses by that Tribunal. It is apparent from the Extended Reasons that it received such an assessment.[14]In what was, no doubt, a difficult case for the Tribunal. It was quite appropriate for it to place emphasis on the diary as an aid to determining where it considered the truth lay on a balance of probabilities.[15]It was also appropriate for the Tribunal to attach significance to independent evidence that Mr Newnham is a man given to vernacular, vulgar and uncouth sexual remarks. This, no doubt, assisted the Employment Tribunal in reaching its conclusions.[16]We are not retrying this case; we are simply examining it to see whether there is legal error in the determination of the Employment Tribunal. We are entirely satisfied that there was no such error and in those circumstances the appeal will be dismissed.