MISS S DELANEY v NORD ANGLIA INTERNATIONAL LTD [2002] UKEAT 1061_01_2207

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1061_01_2207Case No Appeal No. EAT/1061/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS S DELANEYAPPELLANTNORD ANGLIA INTERNATIONAL LTDRESPONDENT
Before
His Honour Judge Jr ReidLord Davies of CoityDate 22 July 2002
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT JUDGE REID QC This is the Preliminary Hearing of an appeal by Miss Delaney against a decision of the Employment Tribunal held at Manchester. There was a hearing which lasted for 4 days in July 2000 and thereafter there was a lengthy reserved decision which was sent to the parties on 31 July. By that decision the Tribunal unanimously held that the Applicant was not discriminated against in breach of the Sex Discrimination Act 1975 .[2]Miss Delaney appealed out of time, was given leave to pursue her appeal and that appeal now comes on for Preliminary Hearing. She has not attended today and the matter is therefore being dealt with in her absence.[3]Her grounds for appeal are as follows:(1) "Manchester Tribunal had been biased against me from the 1 st directions meeting in this case (see attached letter which was written but not sent).(2) New evidence has come to light about the real character and reliability of those who gave evidence.(3) The Chairman was biased – he even quotes the barrister in his Extended Reasons."[4]The attached letter in fact was a fax running to four and a bit pages and in it she makes a considerable number of complaints. She begins by suggesting that the Chairman made a vicious character attack on her and that she expected an apology and saying that she would then go on through his Extended Reasons and present his errors. She says that he should not be allowed to continue in his job. It is entirely inaccurate to describe the Extended Reasons as being a vicious character attack on Miss Delaney.[5]She then deals with paragraph 2 in which she says that he allowed a false statement to be made against her, that she had brought a complaint against the Post Office. That itself is a complete fabrication. What happened was that a question was put to her in cross-examination suggesting that she had made a complaint against the Post Office. That was denied and was apparently a suggestion made by Counsel without foundation. That was the end of the matter.[6]In paragraph 3 she takes exception to the fact that in the course of the Extended Reasons the Chairman had made reference to an expression used by Counsel which, in the view of the Tribunal, was an accurate one. What the Extended Reasons said was as follows: 3 "In his closing address Mr Rose [Counsel for the Respondent] stated that he was not saying that the Applicant was dishonest and we do not find her to be so. However he submitted that the Applicant had a tendency to "get hold of the wrong end of the stick and is tenacious in holding onto it". This phrase accords with the view that the Tribunal formed about the Applicant and this has caused us to have doubts as to the reliability of some of her evidence." There is nothing wrong in the Tribunal accepting a formulation from Counsel and adopting it as their own.[7]She then goes on to deal with an example the Tribunal used as to her inaccuracy and she says that all her evidence was documented and remained accurate and there were no examples of her unreliability and objects to the particular example of her unreliability relied on by the Tribunal.[8]The position was quite simply that, on the face of it, the decision shows, in that instance at least, she was not entirely accurate in her evidence. There was no reason why the Tribunal should not have used it as an exemplar in saying why they were not prepared to accept all her evidence at face value.[9]She then objects to the fact that the Tribunal accepted the evidence of various male witnesses. She is not able to point out any specific areas which indicate why the Tribunal were not entitled to form the view that they did. The Tribunal did find the witnesses as they gave evidence to be honest and reliable. The Tribunal did take the point that the witnesses had not proofread their witness statements as carefully as they might, and did pick up on a variety of mistakes which had been made.[10]The Tribunal however made the following finding: 4 "The Applicant contended that these mistakes are significant and that they adversely affect the credibility of the witnesses. We do not agree having listened to the whole of the evidence in the case. It is almost inevitable that some mistakes will be made when witnesses prepare statements and give their evidence. However, we do not find that the mistakes made by any of Respondent's witnesses were significant or that they adversely affected their credibility." There is no suggestion as to any errors in the documents which were significant.[11]Miss Delaney next goes on to suggest that she has not accepted that the re-organisation of the Respondent's business was undertaken for genuine business reasons and says she thinks she said she did not know for certain. All the decision says is that the "Applicant appeared to accept". There is no substance in that complaint.[12]She then proceeds with a variety of points which, I think, can fairly be described as 'nitpicking' and goes on by objecting to the fact that she is described in one passage as being "disingenuous". She seems to make a major point as to an uncertainty as to a date of a meeting and goes on to say that all her evidence is documented and accurate. Then followed something of a tirade which does not advance her case at all. There is nothing in the suggestion of bias and, in our judgment, that ground of appeal is hopeless.[13]As to new evidence, so far as one can judge, what she is suggesting is that she might now be able to adduce evidence of some other proceedings in which the company had been found to have wrongfully dismissed or otherwise inappropriately treated employees:
"Reading ET found these same guys that I accuse responsible for unfairly dismissing 4 women and one man… speaks volumes… Manchester found them honest and reliable men… All people who were made redundant in this restructuring were women and the head office in Cheadle speaks volumes… Allyson McCahill was given several thousand pounds as a settlement to her claim for sex discrimination, which came about after my claim…speaks volumes… Allyson McCahill was my only witness…"
None of that gives any indication of any reason why the matter should be remitted for further evidence to be adduced. What she would be able to do, at best, is to cross-examine as to credit in the relation to the findings of the Reading Employment Tribunal.[14]So far as Ms McCahill's claim is concerned, that was a claim which was compromised. We do not know the terms of the compromise and certainly one cannot draw a conclusion that because it was compromised there was substance in it.[15]It is also notable that Miss Delaney is inaccurate in saying that that occurred after the hearing. Paragraph 3 of the Extended Reasons records that Miss McCahill had brought a complaint of sex discrimination against the Respondent but her case was settled before it was heard.[16]There is therefore no substance in the suggestion that new evidence has come to light which should cause the case to be remitted.[17]The third ground is that "the Chairman was biased – he even quotes the barrister in his Extended Reasons". That I have already dealt with. It is a ground without substance.[18]There is no basis upon which this hopeless appeal should be allowed to proceed any further and it is dismissed at this stage.