KEYHAVEN INTERNATIONAL LTD v MRS D R EWART [2002] UKEAT 1194_01_1604

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1194_01_1604Case No Appeal No. EAT/1194/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
KEYHAVEN INTERNATIONAL LTDAPPELLANTMRS D R EWARTRESPONDENT
Before
Mr Justice LindsayDate 16 April 2002
[1]APPEARANCES For the Appellant MISS SAMANTHA JACKSON (of Counsel) Instructed by: Abbey Legal Protection 17 Lansdowne Road Croydon Surrey CR0 2BX MR JUSTICE LINDSAY (PRESIDENT) We have before us as a preliminary hearing the appeal of Keyhaven International Ltd in the matter Mrs E R Ewart -v-Keyhaven International Ltd . Mrs Ewart launched proceedings for disability discrimination and her case came before the Tribunal at Southampton, under the Chairman, Mr R E Barrowclough. There was a hearing of one day on 21 June 2001, and on 15 August of that year the Extended Reasons and Reserved Decision was sent to the parties. The Decision of the Tribunal, which was unanimous, was that Keyhaven discriminated against the Applicant, Mrs Ewart, by reason of her disability, in dismissing her.[2]Today, Keyhaven has been represented, as they were not below, by Miss Jackson and she argues that there are significant issues that need to go to a full hearing but the centre of her principal argument is an argument that concerns the date of a particular meeting. The company's evidence was that there were four people at a meeting on 3 April 2000 that had discussed whether Mrs Ewart's job should be made redundant and eventually concluded that it should be. Because of the timing of the knowledge of disability, properly-so-called, suffered by Mrs Ewart, if that meeting truly took place and truly so resolved on 3 April 2000, then, as the Tribunal said in its paragraph 26, it was difficult to see how Mrs Ewart's claim could succeed. The Tribunal said in paragraph 26:
"If the decision to dismiss the Applicant was in fact taken, as is alleged by the Respondents, on 3 April and as recorded at page 122 in the minute produced by Miss Volkers, then in our view, it is difficult to see how the Applicant's claim could succeed."
At the centre of Miss Jackson's arguments are arguments that either the Tribunal had no evidence whatsoever on which it could conclude other than that the meeting was on 3 April, or that such reasoning as there is in the Tribunal's judgment that suggests, and eventually concludes, that the meeting was on a much later date, was without adequate foundation and without adequate explanation.[3]The Tribunal turned to the issue and in their paragraph 27 b), at its foot, they say:
"We do however, accept that the meeting took place before the Applicant's operation on 18/19 April, if only because we find Ms Emmerson's evidence on this point to be credible."
In context, that rather suggests that Ms Emmerson (then a manager at Keyhaven) had said that the meeting was later than 3 April. I do not suggest that the very sentence that I have read necessarily leads to that conclusion but, in context, that is what it would appear to have imported. But Miss Jackson says that there was absolutely no evidence of the meeting having taken place on any day other than 3 April 2000; that there was no written evidence to that effect; there was no oral evidence to that effect; that there was no challenge to the assertion that the meeting took place on 3 April 2000, no argument that there was a meeting on a date other than 3 April 2000 and that Ms Emmerson's evidence, so far as her evidence-in-chief in writing is concerned, alleged that the meeting was on 3 April. That leads to some puzzlement over that sentence earlier cited:
"…if only because we find Ms Emmerson's evidence on this point to be credible."
A little later than that, on the same page, at paragraph 30, the Tribunal was extremely critical of the evidence on the company side. They said:
"It follows from all that we have said above that we do not accept the Respondents' evidence, and in particular that of Mr and Miss Volkers, that the extraordinary meeting took place on 3 April; or that the real reason for the Applicant's dismissal was redundancy, where in our view no immediate redundancy situation existed. We consider that evidence was introduced in order to try to mislead the Tribunal and to hide both the time of, and the true reason for, the decision to dismiss."
[4]Well, that rather looks as if it was being suggested by the Tribunal that the apparent minute of the meeting of 3 April was, to some extent, a false or dishonest document. It is a pity they did not more clearly explain that was their conclusion. It is rather discomforting to find that the Tribunal says that they do not accept the Responden ts ' evidence which makes it look as if they were treating all four witnesses on the Respondent's side as not accepted, whereas a little earlier on the same page, to revert back to the passage we earlier cited, they find Ms Emmerson's evidence on the point to be credible. It is not said Ms Emmerson was a witness for the Applicant. Miss Jackson is, amongst other things, not only taking a perversity point but, in effect, a Meek -v- City of Birmingham point, saying that it is not clear why the issue of the date was lost, given, as I mentioned earlier, that no evidence was given, according to the submissions which we have heard, other than that the meeting was on 3 April.[5]Miss Jackson urges that we send the matter to a full hearing. We are inclined not to do that. What we shall do, and this is a matter we explored with Miss Jackson in the course of the hearing, is to request from the Chairman notes of the totality of the oral evidence, given at the hearing on 21 June 2001. It was only a one day hearing and so we would hope is not too onerous a burden, but, where the argument is, as it has been, that there was no evidence whatsoever in support of a particular finding - here as to the date of the meeting - it seems to us that nothing short of the totality of the oral evidence would suffice adequately to inform the full hearing, if there was to be a full hearing.[6]So, rather than send the matter direct to a full hearing which could, when the notes are examined, be seen to be unnecessary and undesirable, we adjourn the matter to come back, still as a preliminary hearing, but on that occasion with the Employment Appeal Tribunal informed by way of having the notes of oral evidence given and at that point Miss Jackson will be able to re-argue the case if, indeed, it transpires - and I emphasis that she was not instructed below - that there was indeed no oral evidence whatsoever or written evidence that could have supported the finding that the Tribunal eventually came to, namely that the meeting was not on 3 April.[7]So we adjourn the matter to come back as a preliminary hearing on that basis, with the request for Chairman's notes to be made available in the manner we have indicated.