KEYHAVEN INTERNATIONAL LTD v MRS D R EWART [2003] UKEAT 1194_01_2401

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1194_01_2401Case No Appeal No. EAT/1194/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
KEYHAVEN INTERNATIONAL LTDAPPELLANTMRS D R EWARTRESPONDENT
Before
His Honour Judge J McMullenDate 24 January 2003
[1]APPEARANCES For the Appellant MISS S JACKSON (of Counsel) Abbey Legal Protection 17 Lansdowne Road Croydon Surrey CR10 2BX For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT HIS HONOUR JUDGE J MCMULLEN QC This case is about disability discrimination. We will continue to refer to the parties as Applicant and Respondent. It is an appeal by the Respondent in proceedings against a Reserved Decision of an Employment Tribunal sitting at Southampton, Chairman Mr Barrowclough, promulgated with Extended Reasons on 15 August 2001. The Applicant was represented by counsel, the Respondent by in house counsel. The Applicant claimed disability discrimination. The Respondent denied liability and alleged redundancy. The essential issue before the Tribunal was to determine the conclusion of that matter.[2]The Tribunal found that the Respondent had discriminated against the Applicant by reason of her disability in dismissing her. A remedy hearing was convened thereafter. The Respondent was there represented, as today, by Miss Jackson. An award of something over £6,000 for injury to feelings was made to the Applicant which has been paid subject to liability and this appeal.[3]Directions in this case were given by Lindsay P and members on 16 April 2002. A judgment thereafter was given by His Honour Judge Pugsley sitting with members on 1 November 2002 to allow the case to go to a Full Hearing. The reasons of Judge Pugsley incorporate some of the relevant issues in this case. He said this:
"The Applicant launched proceedings for disability discrimination and her case came before the Tribunal at Southampton under the Chairman Mr Barrowclough. Today the respondent has been represented 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 the 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 this: "
If the decision to dismiss the Applicant was in fact taken, as is alleged by the Respondents, on 3 April and is 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 that the meeting was on 3 April or that such reasoning as there is in the Tribunal's judgment that suggests that, and eventually concludes that, the meeting was on a much later date, was without adequate foundation. 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 there was absolutely no evidence of the meeting having taken place on any day other than 3 April 2000 and there was no written evidence to that effect, that 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 and Miss Emerson's evidence, so far as her evidence in chief in writing is concerned, alleged the meeting was on 3 April, that leads to some puzzlement over the 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."
Well, that looks as if it was being suggested by the Tribunal that the apparent minute of the meeting was to some extent a false or dishonest document. It is a pity they did not more closely explain that was their conclusion. It is rather discomforting to find the Tribunal says that they do not accept the reason, the Respondents' 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 cited earlier, 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 District Council 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 submission." That was what an earlier Employment Appeal Tribunal made of the matter. The Employment Appeal Tribunal ordered notes to be produced. We have looked carefully at these notes and we endorse what the Employment Appeal Tribunal under Judge Pugsley said as a provisional view and now agree with that Tribunal fully.[4]The Applicant had been engaged by the Respondent in a number of different positions where she was highly thought of. She had joined in July 1999 in a different part of the business ran by the Volkers and in due course became an employee of the present Respondent, also owned by Mr Volkers. There was a good relationship between the Applicant and the Volkers. She started work for this Respondent on 1 December 1999 as a Digital Administrator. The Respondent is a small company specialising in the provision of IT systems and services. The Applicant was keen, hardworking and proactive. She had many skills. The Applicant's husband also worked for the Respondent and he left in unhappy circumstances. In many places the Applicant's evidence about the background is accepted by the Employment Tribunal.[5]The Applicant suffered from a bad back. It was a problem she shared with Mr Volkers and his daughter, Miss Volkers. In due course the Applicant was going to go and have a surgical procedure which would take, probably, five or six weeks, including convalescence. The Respondent readily agreed to her request, made in March 2000. There were some conflicts about the accounts of that background but the Tribunal upheld the Applicant's case. Sadly, the operation did not take place when it was fixed. It was re-fixed for 19 April 2000. The Applicant was again signed off. It had been suggested that the Applicant could undertake telesales from her home while waiting for the operation as originally intended and took with her a laptop for that purpose. That decision was revoked at the end of March. In the middle of April the Applicant's changed prognosis was put by her to the Respondent, that is, that she may have been off for a longer period than had initially been discussed. There were a number of letters exchanged. The Applicant was readmitted to the hospital on 18 April for her procedure. The Tribunal noted that the tone of the Respondent's communication became more abrasive.[6]The central issue for the Applicant was whether or not she was discriminated against on the ground of her disability. No issue arose but that she was disabled. The company on the other hand alleged that she was dismissed for redundancy. At the heart of the case, as Judge Pugsley pointed out, was an issue about when the decision to make her redundant was taken. There was evidence in each of the witness statements of the four Respondent's witnesses that this meeting took place on 3 April, and since it seems to have been realised by the Applicant that she would not have a case if this were indeed true, it ought to have become the centre of attention during the hearing.[7]The Tribunal make clear that the evidence in writing, given by Mr Volkers and Miss Volkers, that it took place on 3 April was not accepted. The evidence of Mr Wooldridge appears to have caused some difficulties to the Tribunal but there is not a positive finding as to the cogency of his evidence, it simply says this:
"It is surprising, in our view, that Mr Wooldridge, having reassured the Applicant on the previous Friday [that is, 31 March] that her job was not in danger should not recall in some detail and perhaps a degree of embarrassment the circumstances of a meeting apparently called as a matter of urgency on the very next working day, specifically to discuss the Applicant's dismissal."
In respect of him and of Ms Emmerson, the Tribunal records:
"There seems to be no particular reason why they should recollect the exact date on which the meeting was held."
They all obviously did, because they wrote it in their witness statements.[8]Then we come to the passage Judge Pugsley pointed out, about Ms Emmerson's evidence. Since she is free of the extreme rejection to which the evidence of the Volkers was subject, and of the opaque approach to Mr Wooldridge, the Tribunal's finding on her is important. It says:
"… we find her evidence on this point to be credible."
That may be referable to her evidence about the substance of a meeting which took place, but in fact the only evidence which she gave was of a meeting, the substance of it, and the fact that it took place on 3 April. With the benefit of the Chairman's notes, we have seen how the point about 3 April developed. In the evidence of Ms Emmerson, questions were asked by a Tribunal member, to which the answer is recorded by the Chairman as follows:
"I do not remember how the meeting on 3 April was called – it would have been pretty immediate."
The same Tribunal member, in the Chairman's notes, is recorded as eliciting the following evidence from Mr Wooldridge:
"(Concerning the meeting on 3 rd April). I was told that we had got to have a meeting – it was short notice…"
In the cross-examination of Miss Volkers there is reference to 3 April, but in respect of Mr Volkers there appears to be no reference. Unusually in this case we have notes taken by the Chairman of submissions by the advocates. In neither of their submissions is any attention given to what then became the critical issue of 3 April. Neither advocate made any submissions in relation to this.[9]The Tribunal at least believed some of the accounts of this meeting, that is, the substance of it, but firmly positioned the meeting as succeeding the Applicant's letter of 11 April and put it between 12 and 18 April. There is no evidence of that, it is simply an inference drawn by the Tribunal that, since the meeting took place, it must have been after the trigger of the Applicant's letter indicating a more guarded prognosis. The Tribunal found that since that was the reason for the meeting and the decision to make her redundant, it was discriminatory on account of the disability which the Applicant is acknowledged to suffer from.[10]The reasoning of the Tribunal for its decision is full, but sadly it does not include an analysis of the positions of Mr Wooldridge and Ms Emmerson on their evidence. Miss Jackson very fairly says, she cannot take any further the rejection of the Volkers evidence. In other words, four people attended a meeting, two people's evidence that it took place on 3 April is rejected. Ms Emmerson is regarded as a credible witness and it is not said why she should be credible as to the substance but not as to the date, and Mr Wooldridge, about whom there may be some scepticism in his evidence, is not the subject of a finding that he was telling lies. Coupled with the failure to probe this issue in cross-examination, it seems to us that the Tribunal has jumped to a conclusion which is not permissible in the light of the evidence put before it.[11]If this really were to be a matter of substance, we would have thought that since it had not been canvassed in the evidence, nor in the submissions of advocates, the Tribunal might have called for further submissions or indeed further evidence on the point. Certainly, there is no evidence of the meeting occurring in the 12 to 18 April period. The Tribunal simply said that since the meeting did not occur on 3 April it must have occurred between those two dates. That too is a leap, without the reference to any evidence for it. Tribunals can, of course, draw inference from the primary facts, but again, given the way that matter was handled forensically, it seems to us that it was not open to the Tribunal to draw the conclusion which it did. For that reason the appeal is allowed.[12]We should have said at the outset that Mrs Ewart has had the benefit of a Skeleton Argument prepared by her solicitors, which we have read most carefully, but is not able to attend today because, as she wrote to us, she was unable to obtain legal representation today and wished certain matters to be put before us, which we have considered, together with Miss Jackson.[13]We think the Employment Tribunal which hears this should be a differently constituted one. We will remit to the Southampton region for the case to be reheard by a different Tribunal.