MR CLIVE WILLIAMS v (1) THE DEVON & CORNWALL CONSTABULARY (2) THE DEVON & CORNWALL CONSTABULARY WIDOWS, ORPHANS & COMPASSIONATE FUND [2002] UKEAT 283_00_0612

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 283_00_0612Case No Appeal No. EAT/283/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR CLIVE WILLIAMSAPPELLANT(1) THE DEVON & CORNWALL CONSTABULARY (2) THE DEVON & CORNWALL CONSTABULARY WIDOWS, ORPHANS & COMPASSIONATE FUNDRESPONDENT
Before
His Honour Judge J BurkeDate 6 December 2002
[1]APPEARANCES For the Appellant MR J ANTELL (of Counsel) Instructed By: Messrs Blight Skinnard Solicitors 97-99 Fore Street Saltash Cornwall PL12 6AH For the Respondents MISS D GRENNAN (of Counsel) For the First Respondent: Instructed By: Messrs Michelmores Solicitors 18 Cathedral Yard Exeter EX1 1HE For the Second Respondent: Instructed By: Messrs Wolferstans Solicitors Deptford Chambers 60/66 North Hill Plymouth Devon PL4 8EP JUDGE J BURKE QC : Background Mr Williams became a member of the First Respondent, the Devon & Cornwall Constabulary ("the Force") in 1984. In the late1990s he became dissatisfied with the failure of his application to become a dog handler and brought proceedings against the Force in the Employment Tribunal complaining of sex discrimination, race discrimination and victimisation. After a lengthy hearing his claims were dismissed in November 1998. By that time he had been off work with illness for over a year; his marriage had unhappily broken down; and by the end of 1998 his entitlement to sick pay had been exhausted. His only income was his housing allowance from the Force which was paid directly into his bank and went to reduce his overdraft. His attempts to obtain assistance from the Police Federation were largely unsuccessful, as were his attempts to obtain state benefits (although he might have been expected to have been in receipt of statutory sick pay or state benefit). He had upset a number of persons in the Force and the Federation.[2]The Second Respondent ("the Fund") is an independent charity which is administered by Trustees who are serving officers or who were at one time serving officers of the Force. We have not seen any Trust Deed or other documents setting out the constitution of the Fund; but its purposes are no doubt sufficiently described by its name. It is run from an office in the Force Headquarters at Exeter. Mr Williams was a member of the Fund; he paid a membership fee which was deducted from his earnings, as no doubt did many or most of his colleagues. The Fund had power to make payments to appropriate applicants either through its normal procedures or by way of emergency payments. Among its Executive Officers were its Chairman, Mr Salsbury and its Secretary, Mr Powell; both were Police Constables. The Treasurer was Mr Edgcumbe, a Chief Inspector. Mr Powell was also Secretary of the local branch of the Police Federation. Mr Edgcumbe had been a witness at the Tribunal hearing of Mr Williams' first claim, in 1998.[3]Late in 1998 a social worker at Mr Williams' general practitioner's practice became concerned about Mr Williams' welfare; he seemed to have no income at all (save for the housing allowance which was of no practical use). She learned of the Fund and that its local representative for the area of Camborne in which Mr Williams lived was a PC Ferguson – who happened to be Mr Williams' brother-in-law. Her enquiries led the Chairman of the Fund, Mr Salsbury, to tell Mr Ferguson that he could put Mr Williams' case forward to the Fund's management for consideration for financial assistance. At the time the Fund's practice was that applications for such assistance from the Fund were sponsored and put forward by the relevant area representative. Accordingly Mr Ferguson called on Mr Williams, completed with him the Fund's application form and sent it off to the Fund, with a note dated 9 December 1998, explaining some of Mr Williams' difficulties and indicating that he, Mr Ferguson, would because of his family connection, have to stand down from the application.[4]The form set out expenditure of £880 per month and no income at all of any type. Neither the form nor the covering note explained why Mr Williams was said to be receiving no income or no state benefit or sick pay. The note did explain the position in relation to the housing allowance.[5]There had been no specific request for an emergency payment in Mr Williams' case and it was not considered for such a payment. The next meeting of the Fund's Committee took place on 20 January 1999. Mr Ferguson did not attend to support Mr Williams' application, which was considered on paper. As the Tribunal found, Mr Powell, Mr Edgcumbe and another member of the committee, Mr Farmer, knew much of Mr Williams' history and it was likely that other members of the committee who were serving Officers (the majority of the Committee) had heard of Mr Williams' Tribunal claim.[6]The application was not successful. It was the Fund's case that it did not fail outright but was not accepted and was sent back because there was insufficient information as to income in the absence of any detail as to benefits. On the application form the following words were written in manuscript, as the Tribunal found, at the time of the decision:
"No action based upon information available"
. The minutes of the meeting stated:
"… Members felt that there was insufficient detail upon which to make a grant and it was: RESOLVED: that no grant be made upon the information available."
A copy letter on the Fund's files, addressed to Mr Ferguson and dated 2 February 1998, said:
"The application for financial assistance to the above named was considered at the recent meeting of the Management Committee. Following a full discussion it was felt there is insufficient information upon which to make a decision to provide a grant. Your relationship with the Officer is appreciated but I must communicate the decision of the Committee through you, the representative."
[7]Mr Williams learned from Mr Ferguson that his application had not succeeded. At this part of this judgment it is unnecessary to set out when, in what terms or how. He believed that, without a full explanation, the failure of his application to the Fund was an act of victimisation in respect of his previous Tribunal proceedings. On 24 April 1999 he issued a formal grievance under the Force's grievance procedure which was in part based on that failure. His grievance reached stage 1 of the grievance procedure; but we were told that the officer handling it thought that it did not relate to the Force and therefore did not process it any further. Whatever the reasons, it did not proceed beyond stage 1.[8]On 3 May 1999 Mr Williams issued his Originating Application in the present proceedings, against the Force. He alleged that he had been victimised under Section 5 of the Sex Discrimination Act 1975 in respect of his recent Tribunal proceedings against the Force and that, if he had not brought such proceedings, he would have been granted assistance by the Fund. The Tribunal Proceedings[9]Originally Mr Williams' Originating Application named only the Force as the Respondent. In their Notice of Appearance the Force pointed out that the complaint appeared to be directed against the Fund, which was independent of the Force. Accordingly on 25 June 1999 the Employment Tribunal, sitting at Truro and chaired on that occasion by Mr Housego, held a preliminary hearing to decide who should be the Respondent or Respondents to Mr Williams' claim. They resolved, in a Decision promulgated with extended reasons on 19 July 1999, that both the Force and the Fund should be Respondents. They set out in their Extended Reasons much about the constitution and operation of the Fund, which it was obviously necessary to consider. They also set out in some detail an account of Mr Williams' application to the Fund and what had happened to that application. It seems clear to us that it was not necessary for the Tribunal, for the purpose of the preliminary hearing, to go as they did into detail as to the application and what the Fund had done with it; we say that in no critical spirit; the Tribunal could not have anticipated that by so doing they would give rise to any problems.[10]On 23 July 1999 solicitors acting for the Force wrote to the Tribunal expressing concern that the Tribunal had made numerous findings of fact in their interlocutory decision which went not to the question of who should be Respondent to Mr Williams' claim but to the heart of that claim; they said that they were worried that the extended reasons given in respect of the preliminary hearing would be seen by the Tribunal which heard Mr Williams claim on the merits. They raised other concerns which are now of no importance. On 4 August 1999 the Regional Chairman of the Tribunals, Mr Tickle, replied to the Force's solicitors; he said:
"It is undesirable for Tribunals to make findings of fact on matters such as this preliminary issue."
He said that it was far from clear what, in the Decision, was fact and what was submission. He went on to say:
"I can only say that the Tribunal at the final hearing of this matter will conduct it on the basis of the evidence given at the time. I have no doubt that the Chairman will disregard anything in Mr Housego's decision insofar as it relates to findings of fact. His decision will not be seen by the lay members of the Tribunal, and I have so directed. That, I hope, will settle your anxieties."
[11]Mr Williams' claim was heard on its merits by the Employment Tribunal at Truro over three days in December 1999. The Tribunal was differently constituted from the Tribunal which heard the preliminary hearing. The Chairman was Mr Walton. Mr Williams appeared in person; the Force and the Fund were each represented by separate counsel. The Tribunal, by a majority, dismissed Mr Williams' claim; it is from that Decision that the present appeal is brought.[12]The Tribunal set out their findings of fact at paragraphs 3 to 31 of their Decision. Those findings demonstrated that there were serious shortcomings in the way in which Mr Williams' application to the Fund and his grievance to the Force had been dealt with. Having set out the history, the Tribunal (at paragraphs 32 and 33) addressed the central issue – was this a case in which the way in which Mr Williams' application was handled showed "the most dismal chapter of lack of sympathy, attention and general incompetence on the part of those involved, or those events are indicative of victimisation as alleged by Mr Williams"? The Tribunal regarded as essential to that question the basis of the Fund's Committee's decision not to make a grant to Mr Williams on 20 January1999. There were two alternative bases,(a) that put forward by the Fund, namely that the Fund was so lacking in information that a grant could not be made and further information had to be sought and(b) that put forward by Mr Williams, namely that the decision was a final rejection of his application which could not, on the merits, be explained and therefore should be regarded as an act of victimisation.[13]The Tribunal were divided in their response to these issues. The majority concluded that the application form was so lacking in information that it required a further reference to Mr Williams, that it was reasonable for further information to be sought from him and that the unfortunate manner in which his application had been dealt with was attributable to incompetence. The minority member concluded that the absence of any attempt to obtain any information needed before the meeting on 20 January 1999 and the failure to consider an emergency payment together with other matters set out in paragraphs 34 to 38 of the Decision were indicative of victimisation and that the manner in which the application was handled could not be satisfactorily explained as incompetent.[14]The minority member was also concerned about the difference between the outcome of Mr Williams' application and that of another application, as set out in paragraph 38 of the Decision.[15]For the above reasons the majority concluded that the failure of the Fund to make a payment to Mr Williams was not because of the earlier Tribunal proceedings or any complaint on his part of discrimination (paragraph 39). The minority member reached the opposite conclusion; she concluded that the decision of the Fund was not that of an impartial independent body (paragraph 38).[16]The Tribunal went on to consider the status of the two Respondents. Again by a majority, they concluded, contrary to Mr Williams' argument that the Force and the Fund were inextricably linked and that the actions of the Fund and its Committee members should be treated as the actions of the Force, that the Fund was an independent charity operating through its Trustees and that the actions of the Trustees were not taken on behalf of the Force (paragraph 41). They then held that the Tribunal only has jurisdiction under Section 63 of the Sex Discrimination Act 1975 where the complainant was at the material time an employee of the person who had committed an act of discrimination or of a person who was, by virtue of Section 41 or Section 42 of the Act, to be treated as having committed such an act. Because the Fund was not Mr Williams' employer, the majority of the Tribunal concluded it could not have committed an act of discrimination which was unlawful by virtue of Part II of the Act or be treated as having committed such an act of discrimination pursuant to Section 41 or Section 42 of the Act. Thus, it was concluded that, even if Mr Williams had established victimisation by the Fund, he could not have succeeded in his claim before the Tribunal against the Fund (paragraph 43).[17]The Tribunal concluded by expressing sympathy for Mr Williams who had been badly treated; they said:
"It is not surprising that he has brought this action. There were certainly suspicious circumstances on which one of our members has concluded inferences should be drawn that the real reason for the treatment was victimisation."
The Jurisdictional Problem[18]The amended grounds of appeal do not contain any criticism of the Tribunal's conclusions as to the independent status of the Fund, as to the fact that the Trustees of the Fund, in acting on behalf of the Fund, were not acting on behalf of the Force and as to the impossibility of Mr Williams succeeding in a claim against the Fund before the Tribunal, at least by what we might describe as the ordinary route i.e. an act of victimisation under Section 4 of the 1975 Act rendered unlawful in the case of an employer by Section 6. Nor is there any attack on the conclusions of the majority of the Tribunal in respect of Sections 41 and 42 of the Act.[19]However, the amended grounds of appeal propose a different route to the establishment of liability in the Fund by asserting that the Tribunal failed to direct themselves that the Fund was an organisation of workers within Section 12 of the Act which, so far as material, provides:
"12(1) This section applies to an organisation of workers, an organisation of employers, or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists. (2) … (3) It is unlawful for an organisation to which this section applies, in the case of a woman who is a member of the organisation, to discriminate against her - (a) in the way it affords her access to any benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them … ."
[20]It can readily be seen from the terms of Section 12 which we have quoted that, if the Fund was an organisation falling within Section 12(1), the act of victimisation alleged by Mr Williams to have been carried out by the Fund, being discrimination as defined by Section 4(1), would if established fall within the words of Section 12(3)(a). However, we were concerned that this appeared to be a wholly new point which had not been canvassed before the Tribunal who had not had any opportunity to consider any point of law which arose or whether the Fund was, on the facts, an organisation which fell within Section 12(1). Clearly, as Mr Antell on behalf of Mr Williams accepted, the Tribunal's attention had not been directed to Section 12; but, of course, Mr Williams was unrepresented and could perhaps not be fairly criticised for failing to spot that section.[21]Our concerns were set at nought by Miss Grennan who appeared before us as Counsel for both the Force and the Fund and who had appeared before the Tribunal as Counsel for the Fund. While confirming our initial reaction that this was a wholly new point, on instructions she indicated that the Fund(a) were content that Mr Williams should be able to rely before us on Section 12;(b) accepted that the Fund was an organisation of workers and(c) accepted that, if the victimisation of which Mr Williams complained were to have been established on the facts, he would have been able to circumvent the jurisdictional difficulty found (correctly in our judgment) by the majority of the Tribunal to arise from the words of Section 6 of the Act and to have been able to succeed against the Fund on the basis of Section 12.[22]Thus, so far as the Fund is concerned, there remain no jurisdictional difficulties.[23]We should add that Mr Antell on behalf of Mr Williams submitted that the Tribunal had erred in law in failing to consider Section 12 of their own volition; but in view of Miss Grennan's concessions it is unnecessary for us to consider that submission, to which for obvious reasons Miss Grennan did not respond, any further. The Grievance Procedure[24]There being no appeal against the Tribunal's conclusion that the Force was not vicariously liable for the acts of the Trustees of the Fund, the Force now has no interest in the principal thrust in this appeal which requires an examination of various aspects of the Tribunal's Decision as to victimisation by the Fund. However, in one specific respect this appeal continues to involve the Force.[25]In paragraph 30 of the Decision the Tribunal said this, referring to the grievance presented by Mr Williams to the Force in April 1999:
"30 Although that grievance reached stage 1 it went no further and was not properly dealt with by the respondents. This is a factor in Mr Williams' argument as to whether we should draw any inferences."
Mr Antell submitted that Mr Williams' claim included, in addition to his complaints about the Fund's failure to grant him financial assistance, a free-standing complaint of victimisation by the Force in failing properly to progress his grievance through the grievance procedure. We were told that there were four stages of that procedure; stage 1 was the initial stage at which the grievance was handled locally; if there were no solution at that stage, Mr Williams' grievance should have proceeded thence to the Divisional Commander or Departmental Head, to the Chief Officer and to the Chief Constable at stages 2, 3 and 4, so far as necessary. The Tribunal, it was submitted, having correctly found at paragraph 30 that the grievance did not go beyond stage 1 and was not properly dealt with, should have then considered whether that treatment of Mr Williams' grievance was victimisation but wholly failed to do so in the remainder of the Decision which does not refer to the grievance again.[26]Mr Antell embarked on an argument, which would have been interesting to say the least, that the actions of the Officer who mishandled the grievance were not such as to fall within the ambit of the decision of the Court of Appeal in Liversidge v Chief Constable of Bedfordshire [2002] IRLR 651 and that the force was therefore liable for any discrimination which those actions constituted. However, for the second time in this appeal, a concession by Miss Grennan cut the point short; she expressly conceded that, if there was discrimination on the part of an Officer of the Force in the handling of Mr Williams' grievance, the Force was vicariously responsible. Therefore we need spend no more time in considering who was responsible for any mishandling of the grievance.[27]However Miss Grennan's substantive response to Mr Antell's submission on this part of the case was that there never had been a free-standing complaint of victimisation on the part of the Force arising from the handling of Mr Williams' grievance. The mishandling of the grievance had been put forward by Mr Williams, whose case it must be remembered was that the actions of the Force and the Fund were irremediably intertwined, as evidence which went to show that the Fund's decision was an act of victimisation; it was one of the matters from which Mr Williams had argued that the Tribunal should draw adverse inferences against the Fund and the Force. On this basis, submitted Miss Grennan, the Tribunal had correctly approached the grievance in paragraph 30 as a factor in Mr Williams' argument as to whether an adverse inference should be drawn. Having set out the various factors on which Mr Williams relied, including the mishandling of his grievance, the Tribunal proceeded, by a majority, correctly to decide in the light of the facts whether or not to draw such an inference.[28]Mr Antell in reply, submitted that the first sentence of paragraph 30 indicated that the Tribunal regarded the grievance as giving rise to a free-standing complaint.[29]We have no hesitation in concluding that Miss Grennan's submissions on this issue are to be preferred. It is to be noted that there is no reference at all to the grievance in Mr Williams' Originating Application. There is no suggestion that the Originating Application was ever amended to include a complaint against the Force about the grievance. The Force's Notice of Appearance, contending that the complaint in the Originating Application should be directed to the Fund, makes no reference to any such free-standing complaint against the Force. We can see no reference to any such complaint in the first Decision of the Tribunal after the preliminary hearing or in the notes of that hearing – at which, if there had been such a complaint, it would have been of obvious importance to the identification of the appropriate Respondent(s) and would have been drawn to the Tribunal's attention. Paragraph 30 of the Tribunal's substantive Decision sets out the status of the point in its proper context, namely that for which Miss Grennan, who was of course present at the hearing, contended; and the explanation of the absence of any subsequent reference to the grievance thus becomes clear – there was no need for any further reference to it. The Tribunal took the mishandling of the grievance into account in precisely the manner asked of them by Mr Williams in reaching their conclusions as to whether an inference of victimisation should be drawn.[30]For these reasons we conclude that there was no error of law on the part of the Tribunal in relation to Mr Williams' grievance. The Fund's Decision[31]Having "cleared the decks" in the two previous sections of this judgment, we can now turn to the principal criticisms made by Mr Antell of the decision of the majority that the Fund was not guilty of victimisation. At the forefront of those criticisms was an impressive argument, in support of the grounds set out in paragraph 2 of the amended Notice of Appeal, as to a specific defect in the Tribunal's approach to the evidence as to the communication to Mr Williams of the Fund's decision.[32]Mr Williams' evidence to the Tribunal was that he first learnt of the Committee's decision when, on 8 February 1999, Mr Ferguson range him and told him that his application had been rejected; he said that in another conversation a few days later he asked Mr Ferguson who had notified him of the rejection and Mr Ferguson replied that it was either Mr Powell or Mr Salsbury who had rung and told him. This evidence is set out in paragraph 23 of the Tribunal's Decision. According to Mr Williams, Mr Ferguson made no reference to any letter from the Fund informing him of the decision. Mr Williams saw this as important to his case which, it will be remembered, was that the Fund had rejected his application outright and had not referred it back for further information. As part of that case, Mr Williams suggested that the copy letter to Mr Ferguson in the Fund's file dated 2 February 1998, the contents of which we have set out above and which were inconsistent with Mr Williams' case, was not genuine and/or that the original was never sent.[33]The Tribunal recorded, at paragraph 26, that there was a conflict between Mr Williams and Mr Ferguson as to what had passed between them. Mr Ferguson's evidence was that he had received the letter but had, shortly after receiving it, disposed of it. He agreed that he had not told Mr Williams about any letter. He and Mrs Williams gave evidence about a subsequent telephone conversation between them, on 26 June 1999, in which, according to Mrs Williams, Mr Ferguson had said that he was supposed to have had a letter about the rejection of the application but did not get one.[34]As between Mr Williams and Mr Ferguson and as between Mrs Williams and Mr Ferguson the Tribunal expressly preferred Mr and Mrs Williams' evidence.[35]However the Tribunal found (at paragraphs 20 and 28) that the letter of 2 February 1999 was a genuine letter which was sent to Mr Ferguson but which Mr Ferguson did not have at the time of his conversation with Mr Williams, had possibly not read carefully and had then thrown away. Thus, the Tribunal found, Mr Williams was not made aware by Mr Ferguson that the Committee had not rejected his application outright but was seeking further information although the decision had been to that effect. It was common ground that, in February 1999, despite the breakdown of the relationship between Mr and Mrs Williams, Mr Ferguson was on good terms with Mr Williams; and the Tribunal expressly pointed out at paragraph 28 that there was no reason why, if it was in his mind, the full contents of the letter could not have been relayed to Mr Williams by Mr Ferguson.[36]The Tribunal may also have had in mind their own, entirely accurate, description (in paragraph 22) of the letter of 2 February 1998 as very unhelpful. They so described it because it did not suggest what information ought to have been obtained or give any guidance whatsoever to the reader. If someone on behalf of the Fund had placed a letter on file which was not genuine, it might be thought that he would have been unlikely to have produced a letter of which such direct and justified criticism could be made. However, the Tribunal did not expressly rely upon that reasoning. Mr Antell submitted that they had relied, in concluding that the letter of 2 February 1998 was genuine and had been sent to Mr Ferguson, despite the uncertainties in the evidence as to how the decision had been communicated to Mr Williams, on the evidence of Mr Salsbury. In cross-examination by Mr Williams at the substantive hearing, Mr Salsbury said (at page 13 of the Chairman's notes) that the letter was written by the Secretary, that he was adamant that it had been sent and that he had not telephoned Mr Ferguson.[37]In paragraph 4 of the Tribunal's preliminary decision, these words appear:
"We are told, and have no reason to doubt, that the application was considered and rejected at a quarterly meeting of the Committee held on 20 January 1999. Mr Williams' brother-in-law, who is on the committee, was plainly not present as we were told by Mr Salsbury that PC Ferguson was telephoned with the outcome."
Mr Salsbury was the only person at the preliminary hearing on behalf of the Fund; indeed the Tribunal's Decision records that he was the Fund's representative, the Force being represented by their Personnel Officer and Mr Williams being in person. Thus the only source, submitted Mr Antell, of the above extract from paragraph 4 of the preliminary decision had to be Mr Salsbury. Mr Williams, who was seeking to establish that the letter of 2 February 1998 had not been sent and was not genuine and that there had been, subsequent to the Committee's decision, a closing of ranks by those involved in the Fund, was mindful of paragraph 4 of the preliminary decision when he was cross-examining Mr Salsbury at the substantive hearing and wanted, when Mr Salsbury said the letter had been sent, to put to him the extract from paragraph 4 which we have quoted above so as to demonstrate that he had made a previous inconsistent statement. However he was not permitted to do so; the Tribunal decided that they were required, by the terms of the Regional Chairman's letter of 4 August 1999 which we have set out earlier in this judgment, not to permit any reference to the preliminary decision.[38]After this extensive but necessary explanation of the background, we now reach Mr Antell's point. It was that the Tribunal had erred in law in refusing to permit Mr Williams to cross-examine Mr Salsbury on the previous inconsistent statement which he had allegedly made at the preliminary hearing. Although Mr Williams did not know it, Sections 4 and 5 of the Criminal Procedure Act 1865 entitled Mr Williams to pursue this line of cross-examination; and his right to do so could not be removed by the Regional Chairman's letter. The point, submitted Mr Antell, was crucial to the credibility of Mr Salsbury and therefore to the Tribunal's acceptance or rejection of the Fund's case as to the letter of 2 February 1998. Mr Williams, we were told, believes that Mr Salsbury gave evidence on oath at the preliminary hearing and that there was a debate at the merits hearing, when he was seeking to cross-examine Mr Salsbury on paragraph 4 of the preliminary decision, as to whether that was so or not. Miss Grennan recalled no such debate. We regard it as unlikely that evidence as to the making of the Fund's decision and its communication would have been taken on oath at the preliminary hearing; the taking of such evidence would have been unnecessary for the limited issue which the Tribunal was required at that hearing to resolve; and the notes of that hearing which we have read carefully are much more consistent with a discussion and exchange between the parties and Tribunal, as often occurs at a preliminary hearing, than with the taking of formal evidence. Nevertheless, although the weight of any previous inconsistent statement might be affected by whether or not it was made on oath, it is not a prerequisite to the right to cross-examine on such a statement that it should have been given on oath. Thus, whether given on oath or not, if Mr Salsbury had made a previous statement, Mr Antell submitted that Mr Williams should have been permitted to cross-examine Mr Salsbury on it.[39]Mr Antell supported his argument by reference to Rosedale Mouldings Ltd v Sibley [1980] IRLR 387 in which the Employment Appeal Tribunal held that a Tribunal has no discretion to refuse to admit evidence which is admissible and probative of one or more of the issues before it. That is an uncontroversial proposition; and, although technically if when an alleged previous inconsistent statement is put to the maker that statement does not become evidence unless the maker admits that he made it or it is otherwise proved, we accept that the Tribunal does not have a discretion to prevent cross-examination on a previous inconsistent statement which falls within Sections 4 or 5 of the 1865 Act.[40]A wider but similar argument was put forward in ground 1 of the Notice of Appeal; it attacked the finding that there was no victimisation in relation to Mr Williams' application for financial assistance as irrational or perverse. The basis of that line of attack was that, in the light of the Tribunal's preference for the evidence of Mr and Mrs Williams as compared with that of Mr Ferguson and their finding that the full contents of the letter of 2 February 1998 would have been relayed by Mr Ferguson to Mr Williams if received, the Tribunal ought to have found that Mr Powell or Mr Salsbury had indeed telephoned Mr Ferguson and told him that the application had been rejected as Mr Williams had been told by Mr Ferguson and that thus the Tribunal could not have found that the Fund had not rejected the application but had only referred it back for further information. Mr Antell chose to rely on this argument but not to develop it; he candidly accepted that there was force in the argument which he, correctly and unsurprisingly, anticipated would be put forward on behalf of the Fund that the Tribunal had not erred in law in making what Mr Antell described as a surprising evaluation of the evidence.[41]Mr Antell also accepted that ground 3 of the Notice of Appeal, which suggested that the Tribunal had erred in attributing significance to the letter of 2 February 1998 in the light of their findings in paragraph 28 of the Decision, added nothing to the points which we have already described.[42]Miss Grennan submitted that the key issue which the Tribunal had to resolve, by examining and investigating the Fund's decision-making process, was whether the failure of Mr Williams' application was due to victimisation or to less sinister reasons. In order to resolve that issue, the Tribunal had taken into account the many criticisms of what had occurred – e.g. the failure to consider or make an emergency grant, the evidence about the letter of 2 February 1998, the mishandling of the grievance procedure, the failure on the part of the Force to respond to a questionnaire served on it by Mr Williams – and had considered in detail what information the fund had, namely only the application form and Mr Ferguson's covering note which gave no details at all as to income and in particular as to state benefit and what information the Fund needed, namely further information as to income and state benefit. Thus it was natural for the Committee to seek information, as the Tribunal concluded; and it was on this basis that the Tribunal concluded that what had occurred was incompetence and not victimisation.[43]There were, she submitted, three pieces of written evidence which were all consistent with each other and which supported the Fund's case that they had not rejected Mr Williams' application outright. They were firstly the manuscript on Mr Ferguson's covering note which, it was not in dispute, was written at the time of the Committee's meeting and said "No action based on information available", secondly the minute of the meeting which was entirely consistent with the manuscript note and which was in its correct place in the minute book, the original of which the Tribunal had inspected and, thirdly, the letter of 2 February 1998.[44]From this material, she submitted, the Tribunal were entitled to find that the decision of the Committee was not to reject the application outright but to make no award at that time and to seek further information and to find that the decision of the Tribunal was genuine and not one arrived at by way of victimisation.[45]Miss Grennan submitted that the issue as to how the decision was communicated was, on that analysis, of less importance; but the Tribunal had expressly concluded, at paragraphs 22 to 28 of their Decision what had happened in relation to the letter of 2 February 1998 and in relation to Mr Ferguson's conversations with Mr Williams and Mrs Williams and had reached decisions in both areas on the facts. Their decisions as to the facts were not vital to but were consistent with their overall decision as to the genuineness of the Committee's decision. The fact that Mr Ferguson had told Mr Williams that he had received a telephone call telling him of the rejection and made no reference to any need for further information did not require the conclusion that Mr Ferguson had received a telephone call from Mr Salsbury or Mr Powell telling him of the rejection without any reference to further information. What had happened, the Tribunal found, was consistent with incompetence and lack of attention to detail on the part of Mr Ferguson and others. Accordingly the lynchpin of the general attack on the Tribunal's conclusions as to the Committee's decision, namely that the Tribunal implicitly found or should have found that Mr Powell or Mr Salsbury had telephoned Mr Ferguson and told him of the outright rejection of the application was not established.[46]Miss Grennan's submissions in response to Mr Antell's primary point, i.e. the Tribunal's refusal to allow Mr Williams to cross-examine Mr Salsbury on paragraph 4 of the Tribunal's preliminary decision, were:(1) The mechanism of the communication of the decision was irrelevant to the preliminary hearing.(2) The Regional Chairman appreciated that the preliminary decision went beyond what was necessary and thus gave a sensible direction in his letter; the Tribunal at the substantive hearing were right to follow that direction.(3) It was wholly unclear whether any evidence as opposed to discussion and submissions at the preliminary hearing at which Mr Salsbury was a representative, had been given; and it was wholly unclear whether the relevant part of paragraph 4 of the preliminary decision was intended as a finding of fact.(4) Because the details of the mechanism of the communication of the decision were irrelevant to the preliminary hearing, no one would have been concentrating on precisely what that mechanism had been.(5) In any event there was not a prior inconsistent statement because Mr Salsbury's evidence at the merits hearing that he had not telephoned Mr Ferguson was not inconsistent with any statement at the preliminary hearing that someone had telephoned Mr Ferguson; Mr Ferguson had been unable to say whether the call came from Mr Powell or Mr Salsbury.[47]We propose to set out first our conclusions on Mr Antell's specific point as to the prior inconsistent statement and then to turn to the more general submissions.[48]In our judgment had it been clear that a prior inconsistent statement had been made by Mr Salsbury at the preliminary hearing the Tribunal's refusal to allow cross-examination upon that statement would have been an error in law. We readily understand why the Tribunal would have regarded it as right to follow the direction of their Regional Chairman which had been given for good reason; but that direction could not prevail over the right of a party to pursue a legitimate and relevant line of cross-examination.[49]However, the necessary grounds for such cross-examination have not, as we see it been established and, indeed, were not present. It is at the highest wholly unclear whether whatever Mr Salsbury said was said as part of a submission or discussion as opposed to evidence. While this point might be relevant only to the weight of any prior inconsistent statement, when taken together with the lack of clarity as to whether the Tribunal in the preliminary decision was making a finding of fact as to what had occurred, and the absence from that decision of any particularity as to what, if anything, Mr Salsbury said at the preliminary hearing as to the type of communication between the Committee and PC Ferguson, which was not at that stage a matter of any importance at all, and to the limited material the Tribunal had in front of them on that occasion, it would not have been possible at the merits hearing to divine from the preliminary decision whether or not Mr Salsbury had made a prior inconsistent statement; and we are certainly not satisfied that Mr Salsbury did make such a statement. We have carefully considered the Chairman's notes of the preliminary hearing; those notes make no reference at all to the type of communication between the Committee and Mr Ferguson; they set out only, at paragraph 22, that Mr Salsbury told the Tribunal that the application was considered on 20 January 1999 "and returned to the divisional representative" i.e. Mr Ferguson. Accordingly we are not at all persuaded that Mr Salsbury ever did say at the preliminary hearing that Mr Ferguson was informed of the outcome by telephone. We are equally not persuaded that, if he did say that at the preliminary hearing, his evidence at the substantive hearing was inconsistent with what he had earlier said. The notes of the substantive hearing reveal (at page 13) only that Mr Salsbury said "I didn't phone PC Ferguson". That answer did not exclude the possibility that Mr Powell (or even someone else) had telephoned Mr Ferguson. Mr Williams' evidence, accepted by the Tribunal, was that Mr Ferguson had told him that he could not say whether it was Mr Salsbury or Mr Fowler who had rung him (Mr Ferguson). Mr Antell argued that that answer was at least equivocal; that may well be so; but there appears to have been no further exploration of Mr Salsbury's recollection to resolve any ambiguity or equivocation in the answer; and the answer was not, of itself, inconsistent with what, on Mr Williams' case, Mr Salsbury had said at the earlier hearing.[50]It may be thought that our decision on this point is based on a technical or exact approach to what Mr Salsbury said at the second hearing. We do not believe that such thought would be justified; we are entitled and, indeed bound, to examine and test closely a submission which goes only to one piece of evidence on which the spotlight has fallen in this appeal, chosen from the generality of the considerable evidence upon which it was open to the Tribunal to rely in reaching their majority conclusion as to the true nature of the Committee's decision. The Tribunal did not expressly say that they relied upon Mr Salsbury's evidence on the central issues; they did expressly accept the evidence of Mr Finnemore (at paragraph 21), a member of the Committee who was no longer a serving Police Officer, which was that the application was referred back to Mr Ferguson because no action could be taken on the information provided; and that evidence was supported by the handwritten entry on Mr Ferguson's covering note, by the minute and by the Tribunal's majority conclusion that the lack of any reference to the state benefit was a glaring omission from the information available to the Committee and that anyone looking at the application form would expect there to be some income supplement available. Even if there had been a prior inconsistent statement, it is highly unlikely that cross-examination as to it would or could have made any difference to the eventual result. The concentration on Mr Salsbury's credibility in this appeal has invited us to look away from the wider picture and the other material upon which the majority of the Tribunal relied in resolving the key issues and to approach the Tribunal's decision as if it was founded on an acceptance by the Tribunal of what Mr Salsbury said about the communication of the decision to Mr Ferguson. The decision was not in any way so based; and it would have been wrong for us to succumb to the temptation so invitingly held out to us.[51]Our reference to the wider picture is apposite to our conclusions upon the broader arguments put forward on Mr Williams' behalf. The Tribunal's failure to find that Mr Ferguson had been informed by telephone that the Committee's decision was one of outright rejection was, in our judgment, neither irrational nor perverse. The Tribunal was not bound either by logic or by commonsense, having preferred the evidence of Mr and Mrs Williams to that of Mr Ferguson, then to find that what Mr Ferguson told Mr and Mrs Williams was the truth or was a correct understanding on his part of the Committee's decision. It was open to the Tribunal, whatever Mr Ferguson had said to Mr and Mrs Williams, to conclude that the letter was genuine and that it had been sent. They did not reject Mr Ferguson's evidence that he had received it and had subsequently thrown it away. There was, in any event, a substantial quantity of evidence upon which the Tribunal were entitled to rely which pointed to the genuineness of the letter (whether sent or not).[52]We do not need to comment upon Mr Antell's description of the majority's conclusion as a surprising evaluation of the evidence; it is not for us to consider any adjectival description of the Tribunal's evaluation of evidence but to consider whether their general conclusions on the central issues were conclusions which were open to them on the evidence and whether their conclusions as to the letter in particular were open to them on the evidence. For the reasons which we have set out and on the basis of Miss Grennan's submissions which we have summarised above and which we accept, those conclusions were open to the Tribunal and do not involve any error of law. The Comparison[53]We turn finally to Mr Antell's separate submission that the Tribunal erred in failing to draw an inference of victimisation from a comparison between the words used in the Committee's minutes, at paragraph 15/99 (b), to describe the decision in Mr Williams' case and those in another entry, relating to the case of a different applicant.[54]The words used in Mr Williams' case were:
"Long-term sickness and financial difficulties … RESOLVED: that no grant be made upon the information available."
The words used in the case of the other application were:
"For help with bookkeeping course and damp treatment … RESOLVED: that further information be sought by a rep."
Mr Antell submitted that in the light of this comparison, which gave particular concern to the minority member of the Tribunal, the majority decision that there had been no victimisation was perverse. Alternatively he submitted inadequate reasons have been given for the majority's rejection of the minority's view of the importance of this comparison.[55]Miss Grennan drew our attention firstly to the contrast between the words used in Mr Williams' case and the words used in the Committee's minutes in the case decided immediately before that of Mr Williams, at paragraph 15/99(a):- "RESOLVED: that no grant be made." and to the passage in Mr Finnemore's evidence to the Tribunal in which, in response to questions from the minority member, he agreed that the wording of the two resolutions on which Mr Williams relied was different but described the point as semantics and stated that the principle in both cases was the same.[56]Mr Finnemore's evidence was accepted by the Tribunal who regarded him as a reliable witness. The differences in wording on which Mr Williams relies were not such as to require the Tribunal to draw an inference against the Fund. When the wording of minute paragraph 15/99(a) is considered, it is difficult to see that the differences in wording on which Mr Williams relies could carry any real weight; but we do not need to consider what weight, if any, could have been given to those differences; it was, in our judgment, manifestly open to the majority of the Tribunal to reach the conclusion that they did, namely that there was no victimisation despite those differences. That conclusion could not be described as one which no reasonable Tribunal could have reached.[57]We reject too, the submission that there is a lack of reasoning in the Tribunal's Decision. The majority's views, in the light of the whole of the evidence, on the key issues were set out in paragraphs 32 and 33 of the Decision; the Tribunal as a whole were clearly aware of the differences in wording on which Mr Williams relied; paragraphs 34 to 38 set out the minority member's views and her reasons for those views; and, in paragraph 38, the Decision deals specifically with those differences. It was not necessary for the majority either to deal individually with each point taken by Mr Williams or with each point which was regarded as important by the minority. The reasons for the majority's views are sufficiently set out in paragraphs 32 and 33 to tell the parties why they won or lost and to comply with the familiar requirements set out in Meek v City of Birmingham Council [1987] IRLR 250 . Conclusion[58]For the reasons which we have set out this appeal must be dismissed.