MRS E ABIODUN v (1) CRYSTAL SERVICES PLC (2) MR L BARRETT (3) MR D REES [2003] UKEAT 1266_02_2502

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 1266_02_2502

Case No Appeal No. PA/1266/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS E ABIODUNAPPELLANT

(1) CRYSTAL SERVICES PLC (2) MR L BARRETT (3) MR D REESRESPONDENTS

Before

Mr Justice Burton

Date 25 February 2003

[1]APPEARANCES For the Appellant Mr O A Adeeko Solicitor Messrs Adeeko & Co Solicitors 24A Plumstead High Street London SE18 1SL THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This is an appeal under Rule 3(10) of the Employment Appeal Tribunal Rule 1993 against the dismissal of the appeal under Rule 3 by the Registrar by a letter dated 5 November 2002 in which her reasons are set out in full. Rule 3 empowers the Employment Appeal Tribunal to dismiss appeals where it appears to the Registrar, or to a Judge on an oral hearing on appeal from the Registrar, that the grounds of appeal do not give the Appeal Tribunal jurisdiction to entertain the appeal. The conclusion of the Registrar was that the points that were made were points of fact and/or discretion but, in any event, disclosed no point of law granting the Employment Appeal Tribunal jurisdiction to hear the appeal.

[2]The matter has been very ably argued on the Appellant's behalf by Mr Adeeko, who is a representative of the same firm of solicitors who supplied a trainee solicitor, Mr Fasuyi, to represent the Appellant at the hearing between 22 and 26 July 2002, and he was plainly the author, or if not the author, certainly has adopted the contents, of a letter sent in response to the Registrar's letter of 5 November 2002 dated 7 November 2002, and of the Skeleton Argument before me which was based upon it, and he has supported the three grounds of appeal which he asserts do disclose that the Employment Appeal Tribunal has jurisdiction to entertain the appeal as being based upon alleged errors of law, orally, in addition.

[3]The Employment Tribunal were dealing with a claim for unfair and wrongful dismissal and sex discrimination brought by Mrs Abiodun, the Appellant, against her employer, Crystal Services PLC and others. They dismissed those applications. Although not fully articulated, the Notice of Appeal seems to be directed solely in respect of the findings of sex discrimination, but in any event, they relate to three different areas of evidence which was before the Employment Tribunal with which I shall deal in due course, in response to the careful arguments of Mr Adeeko.

[4]The circumstances of the end of Mrs Abiodun's employment by the Respondent, as a cleaner, were that it is plain that there became between her and a Mr Barrett a very serious impasse. She was, rightly or wrongly, accusing Mr Barrett, who was subsequently made a Second Respondent to the proceedings, of sexual harassment. He denied those allegations and the employer, who was in fact criticised by the Employment Tribunal for not having taken sufficient steps to avoid and avert the consequences of that rift between the two, at least took steps to try and ensure that they were not working in the same building at the same time, but those steps, as will appear, were unsuccessful.

[5]The conclusions of the Employment Tribunal, in respect of all the legal issues they had to decide, are set out in paragraph 6 and they are based upon findings of fact which are set out in considerable and laudable detail in paragraph 5 of the Decision. There are three of those findings of fact which form the basis of the challenge by Mr Adeeko, and I shall take them in temporal order, which is not quite the order in which they arise in the Notice of Appeal.

[6]First, there was an incident on 21 May 2001. Findings of fact in relation to that are made primarily in subparagraph (xviii) of paragraph 5 of the Decision, and they read as follows:

"On 21 May 2001 a fight occurred between the Applicant and Mr Barrett. That much is agreed between the parties. The Applicant gave oral evidence to us, that Mr Barrett started the fight. She has given a slightly contradictory account in a faxed complaint of the same date. To us she said that the incident occurred after she had followed Mr Barrett out to his car. In the fax she suggests that it occurred just as he was leaving the building. What is clear is that Mr Barrett was in the process of leaving when the Applicant went up to him. We have some difficulty in understanding why she should do so, when it was clearly her desire that he should not contact her or see her at work and when he was in the process of leaving without having done so. She explained this to the Tribunal by saying that she did not want him to make trouble by suggesting that she was not on site at a time when she was. The Tribunal considers that this could not really have been a difficulty because there was a security guard in the lobby at the time when this occurred. We know that because the Respondent has spoken to him and because of the statement to which we referred at paragraph 4 above."

I will return to that in a moment "That statement gives a hearsay account which is different from that of the Applicant. It makes clear that what the security guard observed was that the Applicant went up to Mr Barrett and started the altercation with him. In other words, that she stuck first. This is also consonant with the account which Mr Rees obtained from Mr Barrett. That was an oral account and was made before Mr Rees heard from the Applicant. We have asked ourselves whether looking for motives here assists us at all. We know that the Applicant was cross with or angry at Mr Barrett. He had previously sexually assaulted her. He had, she believed, interfered with her pay. He had, she believed, wrongly caused holiday pay to be withheld. In respect of him, there is the fact that she had made allegations of sexual assault amounting to attempted rape or rape against him. He also understood that she had circulated these allegations widely. The reason why he must have believed that is that Mr Rees had been told by one of his clients that the Applicant had circulated her allegations (the ones made in the fax to him of 9 April) to forty of its employees. Mr Rees told us that he told Mr Barrett. Thus in a sense, both parties might have had a motive. Doing the best we can, we are unable on the balance of probabilities to accept the account that Mr Barrett started the fight. The burden of proof is on the Applicant and it is not made out. We are particularly troubled by the fact that the Applicant clearly went after Mr Barrett. We do accept that there was a fight, that the Applicant suffered injury and that she went to hospital where in particular a damaged toe was identified and treated."

[7]The Notice of Appeal on behalf of the Appellant before this Tribunal raises this matter in paragraph 2, and it reads as follows:

"The Employment Tribunal erred in admitting and relying on the hearsay evidence contrary to the Civil Evidence Act 1995. PARTICULARS a) the Respondent relied on the statement of a "

Security Guard", an eye witness to a fight on 21/5/01 between the Applicant and the Second Respondent. b) At the Directions Hearing on the 14 th of February 2002, the Tribunal directed that witness statements be prepared and exchanged for all the witnesses that the parties were intending to call. c) The Employment Tribunal directed the Respondent to call all the witnesses on whose statements it intended to rely at the hearing. d) The Respondent promised on two occasions to present the witness at the hearing for the purposes of cross examination by the Applicant. e) The Respondent deliberately failed and refused to call or present the witness at the hearing and thereby denied the applicant the opportunity for cross examining the witness. f) The Respondent failed to give the Applicant any notice that the witness was not going to be called or heard at the hearing. g) The Respondent failed to give any reasons for not calling the witness. h) The Employment Tribunal admitted and relied on the statement of the witness despite the failure and refusal of the Respondent to call the witness in accordance with the Tribunal's direction. i) The Employment Tribunal is also wrong in admitting and relying on the hearsay evidence of Norma Perry contrary to its decision to exclude the hearsay evidence." [that is a matter which is not being pursued on any basis by Mr Adeeko] "j) The Applicant has suffered a substantial miscarriage of justice."

[8]The hearsay statement that is referred to, by the security guard, is further referred to in paragraph 4 of the Tribunal's Decision, as set out above, in which the Tribunal says as follows:

"….. the First Respondent had several witness statements upon which it appeared at one stage that it was intending to rely. Ultimately, only one of those statements was put before us and incorporated into the bundle. We treat that evidence as being received, albeit it can only constitute hearsay and was undated. It comes from a security guard at the Applicant's place of work."

The factual matrix of the incident of 21 May must be further set against the fact that there is a further incident on 5 June, to which I will now refer, against the Tribunal's findings in respect of which there is no challenge by Mr Adeeko on the Appellant's behalf. That appears in paragraph 5(xxviii) of the Decision and following sub-paragraphs, and, in respect of that further alleged fight, at subparagraph (xxxi) the Tribunal conclude:

"With regret, we feel once again unable to accept the Applicant's account as to how the fight commenced on the balance of probabilities. We are simply not sufficiently satisfied that what she has told us is accurate."

That is against the background that in relation to that incident, as recorded in paragraph 5(xxx) "[the customer staff] reported to Mr Pavlou that the Applicant and Mr Barrett had been fighting and that Mr Barrett was trying to get away, but the Applicant was preventing him leaving. The Applicant agrees that she was preventing Mr Barrett from leaving saying she wanted to keep him there until the police came. We are uncertain why that would have been necessary, because his name and address were known."

[9]The other important context of the incident of 21 May is of course that which is pointed out by the Tribunal at the end of subparagraph (viii), namely that the burden of proof in relation to this of establishing the fact that it was Mr Barrett who started the fight was on the Appellant. It is quite apparent that there was, in relation to this incident on 21 May, other evidence, additional to the statement of the security guard, which appears to be primarily relied upon by the Tribunal simply on the basis that there was a security guard present in the lobby, as opposed to the substance of anything that he said; but insofar as the Tribunal refers to the fact that the statement gives an account which is different from that of the Applicant, the Tribunal has plainly taken into account the fact that it was hearsay, and cites its contents as only one of the pieces of evidence which caused them simply to say that they are not satisfied that the Appellant has established the onus of proof.

[10]There is the evidence of Mr Rees, which included hearsay evidence from Mr Barrett, and there are the various combinations or concatenations of likelihoods which the Tribunal referred to and summarised in that subparagraph which I have quoted, but this is not, in any event, if it is to be a point of law at all, one which can gain from an approach towards the weight of the evidence one way or the other. It can only be a point of law by reference to the admissibility of the statement. Mr Adeeko has referred to a letter that Mr Fasuyi wrote on 15 July 2002, on his own headed notepaper, giving notice to the Respondent Company that he would like, on his client's behalf, to cross-examine the security officer at the customer and the response by the Respondent, by letter dated 17 July 2002, was as follows:

"We will ask the people next week, who gave statements, to attend court. At this stage we do not know how the Chairman will structure the proceedings."

[11]The Notice of Appeal, on its face, alleges a breach or infringement of the Civil Evidence Act 1995 . That Act has no application in the Employment Tribunal. The Rules in the Employment Tribunal are otherwise provided by statute and a relevant rule is Rule 11 which reads as follows:

"(1) The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings."

There can thus be no challenge to the fact that the Tribunal read and/or admitted, on the limited basis it did, the hearsay statement of the security guard, by reference to the Civil Evidence Act 1995 .

[12]Mr Adeeko has drawn my attention to Aberdeen Steakhouses Group PLC -v- Ibrahim

[1988] ICR 550

and to the well known and understandable statement in that case that, whereas Employment Tribunals have a discretion in their procedure and admission of evidence by reference to what was then Rule 8 and is now Rule 11, it must be exercised judicially. He submits here that, given that Mr Fasuyi on the Applicant's behalf had requested the presence of the security guard, there was an improper exercise of discretion of the Tribunal to read the evidence, even on the hearsay basis, when the security guard, who as I understand it, in any event, was not an employee of the Respondent but of the customer, did not attend. He has frankly told me that Mr Fasuyi did not object to the admission of that witness statement; he complained about the absence of the witness and argued, as is understandable and sensible, as to the lesser weight to be ascribed to it and, no doubt, consequently, the Tribunal itself referred to it in the terms that it did.

[13]It appears quite clear that this does not amount to an error of law, or even arguably an error of law, in relation to this Tribunal's Decision, to have admitted on the hearsay basis in the absence of the security guard, in those circumstance, as one relatively small part of the factual matrix to the incident of 21 May and, consequently, this is not a ground upon which this Employment Appeal Tribunal has jurisdiction to proceed.

[14]I turn to the second matter which relates not, as I have indicated, to the facts of June 5 th , where the Tribunal found, as I have already indicated, that, as in relation to 21 May, they were not satisfied that the Applicant's account that Mr Barrett had started the fight was right and, indeed, did not therefore find in her favour. But with regards to the events of 6 June, this is the day on which the Appellant alleges that the Respondent dismissed her, and this is no doubt relied upon either as a further act of discrimination or as the basis of the unfair dismissal claim, although once again, as I have indicated earlier, the legal framework is not emphasised on this appeal, but Mr Adeeko has concentrated on isolating points of law which would merit this Tribunal having jurisdiction, as he submits.

[15]The dispute on this occasion was between the Appellant and Mr Rees, the Managing Director of the Respondent, and Mr Pavlou, also of the Respondent, who were both present, and the Tribunal was faced with a dispute between their accounts and the Appellant's. The issue was a concise one. The Appellant insisted that she had been dismissed and told that she was no longer to work for the Respondents, whereas the case for the Respondents is that she was not dismissed, but that as the customer had, as the Tribunal found, stated that they would not have either Mr Barrett or the Appellant back in the premises, they were simply making it plain that she was not in any circumstances to work any further at the premises of that particular customer, but were not at that stage dismissing her from their employment; and were not ruling out, at the very least, the possibility of her working on another site, but were saying that they had asked her to work on another site and she had refused, regarding it as her particular insistence to work at that customer's site.

[16]That was the issue, and the Tribunal's Decision recites as follows, after setting out the background, in paragraph 5(xxxviii):

"Mr Rees told her that due to the fight LBJT [that was the customer] no longer wanted her services. The Applicant told us that Mr Rees said that the Respondent did not want her services and that he did not offer her alternative work. Mr Rees told us that he made clear that they could not use her at LBJT, but that they would arrange another site for her. Mr Pavlou and Mr Rees both told us that the Applicant said that is she could not have what she referred to as "my building" she did not want to work for the Respondent. Mr Rees was keen to get the Applicant off site. She would not leave till she had written a series of sentences at her dictation. So he wrote them. We accept that evidence, which is clearly reflected in the document which we have at page 61 of the bundle. It consists of four short sentences each of them signed by Mr Rees. The Applicant relies on the first sentence as proving that she was dismissed. It reads as follows: "

Your services are no longer required with Crystal Services from this day Wednesday 6 June 2001" Mr Rees explained this as having been written after the Applicant had refused alternative work and had made her statement about not wanting to work for the Respondent if she could not work that site. In similar vein, Mr Rees requested the Applicant to sign a document which he had caused to be written. That document reads at the first sentence of page 60:

"The person named below have following the clients' request been told to be not allowed back on site. I have asked Esther to work on another site but she has refused."

That is followed immediately by Mr Rees' initials. Mr Pavlou gave an account which corroborated Mr Rees' account. That is, he told us that the Applicant said that she would not work for Crystal if she could not do the LBJT site. We found some infelicities in Mr Pavlou's recollection, but are unanimous in accepting him essentially as a witness of truth. We believe him on this point." It is therefore apparent that, in relation to the heavy dispute between the two sides as to what happened on that occasion, the Tribunal accepted the account given by both Mr Rees and Mr Pavlou and rejected that given by the Appellant.

[17]The issue that is raised by Mr Adeeko in his ground of appeal, which I shall cite in a moment, is set out in the following sub-paragraph (xxxix):

"Under the quotation from page 60 set out above, the Applicant's name is written in a hand which is clearly different from that on the rest of the document. The Applicant insists that it is not her signature and that she never saw the document until it came before her in the course of litigation. We reject that evidence. Although we warned the parties that we are not handwriting experts, they invited us to compare various documents which the Applicant agreed she had written or signed with the writing at page 60. We have done so. We are satisfied that the person who wrote and signed the document which we have at pages 54-55 was on the balance of probabilities the same person as the person who wrote or signed the name at page 60. Pages 54-55 were indisputably and by her acclaim written by the Applicant. We are therefore satisfied that it was the Applicant who wrote her name at page 60. We are also satisfied that she would not have done so had it not been accurate. There was no reason for her to do so."

The overall conclusion, as set out in the Tribunal Decision, is that recorded at (xl):

"We are satisfied on the balance of probabilities that although he made sp specific offer, Mr Rees made clear to the Applicant on 6 June that she should not work at LBJT, but that she could work at some other site. We are also satisfied that the Applicant said that if she could not work LBJT she would not work for the Respondent and that she left after that."

[18]The Notice of Appeal at ground one is set out as follows:

"1. The Employment Tribunal erred in law in comparing the disputed handwriting of the Applicant and holding that the handwriting belongs to the Applicant."

The Particulars, again set out at length in lettered subparagraphs, are as follows:

"a) The Respondent claimed that the Applicant signed a letter dated 6/601 wherein she rejected alternative job offers. b) The Applicant asserted that the handwriting and the signature did not belong to her. c) The Employment Tribunal compared the disputed writing with the Applicant's acknowledged handwriting and concluded that the disputed handwriting belongs to the Applicant. d) The Employment Tribunal is wrong in law in that the Tribunal has no expertise or training in handwriting. e) The Employment Tribunal did not seek or obtain any expert guidance or assistance in reaching its conclusion. f) The decision of the Employment Tribunal is speculative and dangerous. g) The Respondent refused to produce the original or primary copy of the disputed document and the Tribunal only had the benefit of the photocopy of the said document. h) The Respondent had presented fabricated documents to the Tribunal. i) The Tribunal refused the Applicant's line of cross examination that required the third Respondent to give a sample of his handwriting in order to verify the authenticity of the disputed document. j) The Applicant has suffered a substantial miscarriage of justice."

It is plain that the findings by the Tribunal did not depend wholly on this document. The evidence, which it accepted, was given orally by Mr Rees and Mr Pavlou, and the Tribunal had the benefit of assessing on the one hand their evidence in relation to a substantial number of matters and on the other hand the Appellant's evidence, also in relation to a substantial number of incidents. The fact that the Appellant had allegedly put initials at the bottom of that letter was plainly not central to the issue which the Tribunal had to decide, but it will, questionably, have been part of the issue of credibility on both sides.

[19]The Tribunal records that the course it took in relation to looking at the handwriting was one that was encouraged, indeed it says positively invited, by the two parties. Mr Adeeko refers, in his Skeleton Argument, to a case Lockheed - Arabia -v- Owen

[1993] 3 WLR 468

which indicated that it is dangerous and speculative for a judge or Tribunal without expert guidance or assistance to reach a conclusion on the authenticity of disputed handwriting, and it is plain that the Tribunal had that in mind when it took the course it did, at the invitation of the parties. Mr Adeeko has said that he does not accept that Mr Fasuyi, the trainee solicitor, did indeed join with the Respondents in inviting the Tribunal to take the course they did, but it is plain that he did not object to the course; but in any event Mr Adeeko says that even if there was, at the least, acquiescence, if not approval, by the parties of the course taken by the Tribunal, it is a course which the Tribunal should not, in the exercise of their discretion, have taken. I am satisfied that this too is not a ground which can be characterised as an error of law; it was the exercise of discretion by the Tribunal as part of its fact finding process. The Tribunal plainly took on itself this additional role of looking at the handwriting, appreciating that it was not within its ordinary remit and, as it says, at the invitation of the parties. It is certainly a matter which cannot, in my judgment, amount to an unjudicial exercise of discretion, and in any event, as appears, it was not central to the conclusion that the Tribunal reached. It is my judgment that there is no error of law disclosed such as to mount an appeal to this Tribunal.

[20]The third matter relates to a much earlier incident, and it is set out in subparagraph 13 of paragraph 5. It relates to an occasion in April when the Appellant complained to Mr Rees about the alleged sexual harassment and assault by Mr Barrett upon her. In that subparagraph the Tribunal records that, in response to that complaint: "Mr Rees told us that he replied to the Applicant by letter dated 10 April. The Applicant says that she did not get that letter. We do not resolve that factual dispute, because it is clear to us that Mr Rees never took any effective or significant steps to resolve the complaints in the fax." and then the Tribunal sets out the steps which Mr Rees did take, which included telephoning the police and removing Mr Barrett, as the Appellant's manager, but which the Tribunal concluded was insufficient; and indeed in paragraph 6.2 (c) the Tribunal concluded that the lack of investigation by Mr Rees and Mr Lewis, who they characterised as poor managers who dealt equally poorly with all complaints, was deplorable, but notwithstanding that it recorded the steps that Mr Rees did take, it did not find that he responded to the letter of 10 April. It made no finding, as indicated, which means that it certainly did not make a finding that he did respond.

[21]The ground of appeal in paragraph 3 is set out as follows:

"The Employment Tribunal's decision refusing to decide on whether the Applicant received the letter of 10/4/01 from the third Respondent is contrary to evidence and perverse. PARTICULARS a) The third Respondent claimed that he wrote a letter on 10/4/01 and delivered it to the Applicant. b) The Applicant asserted that she did not receive the said letter at all. c) The Employment Tribunal refused to decide on the competing evidence of the parties. d) The decision of the Employment Tribunal is contrary to evidence and perverse in that the said letter shows prima facie that it is backdated and fabricated. e) The Applicant has suffered a substantial miscarriage of justice."

The letter in question to the Appellant from David Rees on the Respondents' headed notepaper is, or purports to be, a reply to the letter sent by the Appellant on the previous day by fax, and sets out what are called the findings by Mr Rees.

[22]It is an extremely difficult task for an Appellant in this Tribunal to establish a case of perversity. There are a number of recent decisions of the Court of Appeal which indicated the very restricted role which this Employment Appeal Tribunal must play in interfering in findings of fact by the Tribunal, a fortiori where the allegation of perversity relates to only one part of the evidence, but in this case the position is even more heavily weighted against the Appellant, because the conclusion which the Appellant seeks to attack is a finding which, in effect, was favourable to the Appellant; not as favourable as if there had been a positive finding that the letter was not sent and Mr Adeeko has canvassed before me reasons which, he says, albeit he is not able to say they were put in cross-examination of Mr Rees, were at least argued below and would tend to show, he says, that the letter was backdated. He would have preferred a positive finding that the letter was not sent. But the Decision of the Tribunal which he seeks to attack was simply a conclusion that it could not be satisfied that the letter had been received and thus it found in the Appellant's favour that it had not been received and that was as far as it went, but it nevertheless went on to arrive at a conclusion that there had been inadequate steps by the Respondents to investigate.

[23]It appears clear to me that this allegation of perversity leads nowhere, certainly nowhere sufficient to be able to begin to begin to assert that there is an error of law in the conclusions of the Tribunal, and in those circumstances that ground also falls without the jurisdiction of the Employment Appeal Tribunal. In those circumstances, this appeal, well argued as it has been, must be dismissed.