MRS N JOCIC v 1) LONDON BOROUGH OF HAMMERSMITH & FULHAM 2) MR S MORALEE 3) MS D WALLACE 4) MR N PALLACE [2007] UKEAT 0194_07_3010

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2007] UKEAT 0194_07_3010

Case No Appeal No. UKEAT/0194/07

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS N JOCICAPPELLANT

1) LONDON BOROUGH OF HAMMERSMITH & FULHAM 2) MR S MORALEE 3) MS D WALLACE 4) MR N PALLACERESPONDENT

Before

His Honour Judge Burke

Lord Morris of Handsworth Oj

Date 30 October 2007

[1]APPEARANCES For the Appellant MRS N JOCIC (The Appellant in Person) For the Respondents MR A LYNCH (One of Her Majesty's Counsel) Instructed by: London Borough of Hammersmith & Fulham Legal Services Division & Administration Dept Town Hall King Street London W6 9JU SUMMARY Unfair dismissal – Reason for dismissal including substantial other reason Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke The employee was dismissed, on the employers' case as redundant in the course of a re-organisation. They relied on redundancy as their reason for dismissal. The employee's claims that she had been unfairly dismissed and was the victim of discrimination, both historic and in the re-organisation, and other claims failed. On appeal the employee asserted(1) that the Tribunal erred in law in finding that the reason for dismissal was not redundancy but some other substantial reason, which had never been raised

(2) that the Tribunal had, in rejecting the historic discrimination incidents, said only that "the Tribunal is unable to make a finding of less favourable treatment" or used words of that nature without accepting or rejecting either sides' account and giving reasons therefor

(3) that the Tribunal gave insufficient reasons for the conclusion that there should be no just and equitable extension of time. Held: (1) that the change of reason in this case fell within the principle established in Hannan 1986 and was open to the Tribunal. (2) that although the Tribunal's choice of words was unsatisfactory and had been rightly criticised by the EAT in Peart 2006, when read as a whole the Tribunal conclusions were adequate. (3) that sufficient reasons had been given for the extension of time decision. HIS HONOUR JUDGE BURKE QC The nature of this appeal This is an appeal by Mrs Jocic, the Claimant before the Employment Tribunal, against the judgment of that Tribunal sitting at London (Central), chaired by Miss Lewzey and sent to parties with written reasons on 13 April 2006. By that judgment the Tribunal dismissed Mrs Jocic's claim of unfair dismissal, breach of contract, sex discrimination and discrimination on the grounds of marital status (a form of sex discrimination), her claim under the Equal Pay Act 1970 and her claim for an itemised pay statement and ordered the first Respondent, the London Borough of Hammersmith and Fulham ("HF"), to pay £930 in respect of an unauthorised deduction from wages.

[2]The second, third and fourth Respondents were management employees of HF said to be responsible for acts of discrimination against Mrs Jocic.

[3]Mrs Jocic put in a wide ranging Notice of Appeal against the Tribunal's judgment which was initially rejected at the sift stage of the EAT's procedures as having no reasonable prospects of success. However Mrs Jocic, as was her right, sought an oral hearing under Rule 3(10) of the EAT Rules; and at that hearing she was represented by Miss Suzanne Chan of Counsel under the ELAA Scheme. HHJ Reid QC permitted Mrs Jocic to proceed to a full hearing of her appeal on three grounds only; they were set out in a document entitled amended grounds of appeal settled by Miss Chan; and it is those three grounds which were the subject matter of the argument before us.

[4]Mrs Jocic has, as before the Tribunal, appeared before us in person; HF and the other Respondents have together been represented by Mr Adrian Lynch QC, as they were before the Tribunal. We are grateful to both for their submissions and for their skeleton arguments which we have read with care. The history

[5]The relevant history can for present purposes be set out relatively briefly. Mrs Jocic was employed by HF from March 1981. After a reorganisation in 2000 her job title was that of principal technical manager; she had a team of development technicians reporting to her and at least one other employee; her team provided administrative support to officers in the planning and building control section of HF's organisation.

[6]In 2003 differences arose between Mrs Jocic and a Ms Murray who was a member of that team. Ms Murray had extended sickness absence while undergoing treatment for cancer; on her return she felt that Mrs Jocic's management of her sickness absences undermined her; and she instituted a formal complaint against Mrs Jocic under HF's Harassment Procedure. Soon after Mrs Jocic was notified of this, she herself was away from work; and the sickness management procedures which she had gone through with Ms Murray had to be applied to her. At the end of December 2003(1) the results of HF's investigation of Ms Murray's harassment complaint were made known; in the report Mrs Jocic's actions were, overall, supported and the claims made by Ms Murray against her were found to be unsubstantiated

(2) Mrs Jocic appealed against the result of the sickness management process in her case. That appeal was rejected by Mr Moralee, Head of Development Control in HF's environment department.

[7]On the next day, 28 January 2004, Mrs Jocic spoke to Mr Pallace, Director of the Environment Department, and discussed her concerns about her job. A few days later, on 3 February 2004, she went absent because of stress; she became distressed at a meeting on 4 February which was intended to review her workload and alleviate her stress; she did not return to work thereafter.

[8]Meanwhile Mr Moralee had, for months, been working on reorganisation proposals. Those proposals were put together in a report given to all staff and to Trade Unions. The reorganisation involved the restructuring of Mrs Jocic's team. Her post was to go; and a new post, called Team Leader Technical Support and IT, was to be created. Various steps were taken by HF and by Mrs Jocic's Trade Union by way of discussion and consultation about Mrs Jocic's position in relation to the reorganisation; it is not necessary to go through them. In the result HF resolved that Mrs Jocic's post would be deleted and that there was no post in the new structure to which she could be assimilated. She was given but declined the opportunity to go on HF's redeployment register. She was dismissed, it was said by HF by reason of redundancy, on 13 April 2004 with 3 months' notice, the effective date of termination therefore being 13 July 2004. She presented her claims to the Employment Tribunal on 8 October 2004.

[9]It was Mrs Jocic's case that the claimed redundancy was a sham and that the real reason for her dismissal was that HF had believed that she was trying to start a family; she claimed that, for a period prior to her dismissal, she had been subject to bullying and harassment for that reason. She asserted that the essential duties of the new post of Team Leader Technical Support and IT were the same as those of her old post save that they included a small amount of planning duties which required the holder to have planning qualifications – which Mrs Jocic did not have. She believed and asserted that those duties were only put into the new post in effect to prevent her from being eligible for assimilation to it. A substantial grade difference between the two posts, she asserted, was produced for the same purpose. She claimed that there was, in the circumstances, no true redundancy and she had been unfairly selected for redundancy.

[10]We need not describe the basis of Mrs Jocic's breach of contract claim because it is not the subject of this appeal; the same applies to the Equal Pay Act claim.

[11]So far as the discrimination claims are concerned the Tribunal identified Mrs Jocic's complaint at paragraph 5.3.2 of their judgment by reference to specific passages in Mrs Jocic's claim form and in three separate sets of further and better particulars; the complaints in the further and better particulars had been identified at earlier hearings by paragraph numbers; see paragraph 3 of the Tribunal's judgment. The complaints in the claim form were also to be found in the further and better particulars; see paragraph 93. There is no issue in this appeal as to the correct identification of those complaints which were to be the subject of consideration by the Tribunal. The Tribunal appropriately defined the issues before them, including whether, in the case of incidents which occurred prior to 9 July 2004 i.e. more than 3 months before the presentation of the claim, they were part of a continuing act and, if not, whether it was just and equitable to extend time in respect of them.

[12]The allegations of discrimination fell into three broad categories –(1) allegations of comments about Mrs Jocic having children or about her biological clock and matters of that kind,

(2) incidents in relation to work arrangements in which Mrs Jocic claimed that she was treated less favourably then a male colleague or colleagues or an unmarried colleague or colleagues were or would have been,

(3) matters relating to the reorganisation. The Tribunal's decision

[13]The Tribunal heard the evidence and arguments over several days, the course of which is set out at paragraphs 9 to 17 of their judgment. Their judgment is lengthy and detailed. Having found the primary facts, they directed themselves as to the relevant law in the case of each head of claim and then set out their conclusions upon each claim.

[14]They expressed their conclusions upon the unfair dismissal claim at paragraph 71 to 75. Those conclusions were that(1) Mrs Jocic's post did not continue to exist under the reorganised structure. The duties of that post were split between the new role of Team Leader Technical Support and IT, which role required a planning qualification which Mrs Jocic did not have and a new post of Team Leader in Building Control, which was found to have been established separately from the reorganisation and some months later.

(2) In those circumstances the dismissal was not for redundancy but for some other substantial reason, namely the reorganisation.

(3) Mrs Jocic did not qualify for assimilation

(4) there was adequate consultation,

(5) Mrs Jocic was given an opportunity to go onto the redeployment register but did not take up that opportunity,

(6) the dismissal in those circumstances fell within the range of reasonable responses open to a reasonable employer.

[15]The Tribunal then directed themselves as to the relevant law relating to discrimination claims at paragraphs 80 to 84, making express reference to section 63A of the Sex Discrimination Act 1975 and to the guidance set out by the Court of Appeal in Igen v Wong

[2005] IRLR 2008

. It is not suggested that those self directions were in error in any respect.

[16]They then, at paragraph 89, considered what we can, in shorthand, describe as the continuing act issue. They concluded that the complaints of matters relating to the reorganisation were complaints about a continuing state of affairs and were (if they occurred) part of a continuing act; since the last complaint related to matters within the 3 month period, all of that part of Mrs Jocic's complaints was treated as having been made in time. However the Tribunal concluded that all other incidents, which did not relate to the reorganisation, were separate and distinct incidents which did not form part of a continuing act and were, accordingly, out of time.

[17]At paragraph 90 the Tribunal considered whether time should be extended in respect of those complaints which were out of time on a just and equitable basis. They said this:- "In relation to the matters that are out of time we have to consider whether it is just and equitable to extend time. Mrs Jocic has not given any evidence as to why it is just and equitable to extend time. She argues that the reason she did not present her claims earlier was because of the impact of harassment and her post traumatic stress and that the Respondent would not suffer a detriment. The Tribunal is not satisfied in these circumstances that it is just and equitable to extend time."

[18]Accordingly the Tribunal concluded that there was no jurisdiction to consider those complaints, at paragraph 91. However at paragraph 92 they said that, in respect of those complaints which they had held to be out of time, they would, in case they were wrong in so holding, set out their findings. The Tribunal then went individually through each complaint set out in the 25 paragraphs of further and better particulars identified earlier in their judgment, save that they considered the last six complaints, paragraph 32/3/4/5/8/9 in the further and better particulars of 8 October 2005, together because they all related to Mrs Jocic's not being assimilated to a new post and to her failure to survive the reorganisation.

[19]In general terms the Tribunal found, in the case of each such complaint, that it failed. The reasons why the Tribunal so found in each case, not surprisingly, vary. In respect of the overwhelming bulk of the complaints the Tribunal found either that less favourable treatment had not been proved or that the circumstances were not such as to give rise to any inference of discrimination or that the Respondents' explanation of what had happened was sufficient or, in some cases, a combination of those findings. We will come later to individual paragraphs within this section of the Tribunal's judgment which have been the subject of criticism. The three grounds of appeal

[20]The three grounds of appeal are(1) that the Tribunal erred in law in concluding that the reason for the dismissal was "some other substantial reason" when that reason had never been pleaded or raised in the proceedings,

(2) that the Tribunal erred in law and abdicated their responsibilities to make findings of fact on disputed issues where they expressed their reasons for rejecting the complaints of discrimination addressed in paragraphs 94, 95, 96, 100 and 103 of their judgment and, in those paragraphs, in seeking to require corroboration of her evidence before they could make any finding in Mrs Jocic's favour,

(3) that the Tribunal failed to give any or any adequate reasons for their decision on the issue of just and equitable extension of time.

[21]It is common ground that all of the paragraphs to which ground 2 applies addressed complaints already held to be out of time; therefore, in order for Mrs Jocic's appeal to succeed so far as her arguments of sex discrimination are concerned, she must succeed on this appeal on both grounds 2 and 3. The reason for dismissal

[22]Mrs Jocic submits that at no stage in their response, in the course of the proceedings leading up to the hearing or at the hearing, including their closing submissions, did HF plead or contend that the dismissal was for any reason other than redundancy. That submission is factually correct; it is not disputed by HF. While often where dismissal occurs in the context of a reorganisation the employers put forward some other substantial reason as an alternative reason for dismissal to redundancy, that did not occur in this case.

[23]In those circumstances Mrs Jocic submits that it was not open to the Tribunal to find that the reason for the dismissal was other than the only reason pleaded and considered at the hearing but was a different un-pleaded and unexamined reason. She relies on the support of authority for that proposition and on the principles of natural justice. Mr Lynch submits in contrast, again in reliance on authority, that the Tribunal's finding that the reason for dismissal was some other substantial reason and not redundancy was no more than an exercise in "re-labelling" i.e. differently classifying within the range of potentially fair reasons set out in sections 98(1) and (2) of the Employment Rights Act 1996 exactly the same factual situation as that which the Respondents claimed to amount to redundancy and that Mrs Jocic has suffered no injustice or prejudice as a result because the facts were fully investigated and the issues could not be subject to any further or different investigation or findings, had some other substantial reason been pleaded as an alternative to redundancy.

[24]It is necessary, in order to decide which submission is to be preferred, first to consider the authorities. The first in time is Nelson v BBC

[1977] IRLR 148

, in which the employee was dismissed in circumstances in which the employers were reducing their expenditure and closing down their Caribbean regional service in which the employee worked. The Employment Tribunal held that the employee had been fairly dismissed for redundancy. Central to that conclusion was their finding that it was a term of the employee's contract of employment that he was employed for the purposes of broadcasting to the Caribbean. Therefore, because that service was being closed, he was redundant.

[25]The EAT took the view that the finding as to the terms of the contract of employment was difficult to support – but that it would have been open to the employers to rely on some other substantial reason in any event. The Court of Appeal held that that approach was in error, that there was no redundancy because the term of the contract of employment on which the employers relied did not exist and that, had the employers raised some other substantial reason, the Tribunal would have directed their findings of fact to that reason rather than redundancy. The employee's appeal was, therefore, allowed.

[26]Nelson was applied by the EAT, Brown-Wilkinson P presiding, in Murphy v Epsom College

[1983] IRLR 395

. In that case the junior of two plumbers was dismissed when, as a result of his refusal to carry out work on heating installations, the employers decided to reduce the number of plumbers to one and to engage a heating technician. The Tribunal, by a majority, found that the employee's dismissal was either for redundancy or some other substantial reason and was fair. Some other substantial reason had not been raised before the Tribunal. At paragraph 17 to 20 of their judgment the EAT said:- 17 Although there was obviously room for disagreement before the Industrial Tribunal as to whether the reason for dismissal was Mr Murphy's attempt to limit the range of the functions which he could be required to carry out or whether it was a genuine re-assessment and re-organisation of the works department in the light of changes in the heating installation, that dispute of fact has been settled by the findings of fact made by the majority. Accordingly on the face of it the Industrial Tribunal's decision is unimpeachable. Although there might be some doubt whether the reason for dismissal was properly classified as being redundancy or some other substantial reason, it must have been one or other of the two. The Tribunal having applied their mind to the relevant matters and reached their own conclusion whether the decision to dismiss was reasonable, there would be no jurisdiction in this court to override or vary their conclusion on the point. The difficulty in the case has arisen from the fact that before the Industrial Tribunal the employers never sought to justify the dismissal on the grounds that it was for 'some other substantial reason'. Such case was not pleaded by the employers, nor was it argued. At the hearing before the Industrial Tribunal the point was not ventilated at all nor was any suggestion made by the Industrial Tribunal that they might be going to decide the matter on that ground. 18 Our initial reaction was that the failure at the hearing to bring out the fact that the reason for dismissal could be classified as 'some other substantial reason' did not vitiate the decision. The function of the Tribunal was to find the employers' actual reason: the actual reason having been found it was, as the Industrial Tribunal considered, merely a matter of classification as to whether it was called redundancy or some other substantial reason. Provided that it was one or other of the two, it was a potentially fair reason for dismissal. However, Mr Kelly (for Mr Murphy) has referred us to the decision of the Court of Appeal in Nelson v BBC

[1977] IRLR 148

. In that case an Industrial Tribunal had held a dismissal to have been on the grounds of redundancy. On appeal, this Appeal Tribunal doubted the correctness of the Industrial Tribunal's finding of redundancy but held that there was some other substantial reason for the dismissal. The Court of Appeal held that the reason for dismissal was not redundancy and that since redundancy was the only defence pleaded before the Industrial Tribunal the employers were not entitled to rely on a defence that there was some other substantial reason, nor was the Employment Appeal Tribunal entitled to apply facts found in relation to the fairness of the dismissal for the purpose of holding that the dismissal was for 'some other substantial reason'. Mr Kelly submits that that decision shows that it was not open to the Industrial Tribunal in this case to rely on the reason for dismissal being 'some other substantial reason' since the point had never been pleaded nor had his client ever had an opportunity to deal with a case made on that basis. 19 Although there are plain distinctions between the Nelson case and the present case in that, in the Industrial Tribunal as the tribunal of fact had not found that there was 'some other substantial reason' (the only finding to that effect being by the Employment Appeal Tribunal) in our judgment it does have a bearing on this case. In Gorman v London Computer Training Centre Ltd [ 1979] IRLR 22 this Appeal Tribunal held that it was not necessary to 'plead' some other substantial reason in the full technical sense of the word. However, in our judgment in the light of the Nelson

[1977] IRLR 148

case it is probably necessary that the matter should be expressly ventilated in the Industrial Tribunal before it reaches a decision on the matter so that the parties can have a full and proper opportunity to deploy their case on the matter. Natural justice requires that the party should not have a case decided against him on a ground on which he has not had an opportunity to be heard. 20 It is therefore not safe for us to approach this case on the basis that the reason for dismissal was either redundancy or some other substantial reason. It is accordingly necessary for us to consider whether, on the facts of this case, Mr Murphy could properly be held to be redundant. However they went on to hold that the Tribunal was entitled to conclude that the reason for dismissal was redundancy; thus the appeal failed.

[27]The next decision in chronological order is that of the EAT, Hutchinson J presiding, in Hannan v TNT-PIEC (UK) Limited

[1986] IRLR 165

. The employee in that case was a regional sales manager. His employers were involved in a merger, as a result of which a reorganisation took place. That reorganisation involved the division of the country into four rather than two regions; there were to be four new regional managers who were to have wider duties than those of the two regional managers under the old regime. Under those four regional managers were to be area sales managers whose duties were broadly equal to that of the employee under the old regime but managing a smaller number of outlets and reporting to the new regional managers. The employee was not selected to be one of the four new regional managers and was unwilling to accept the post of area sales manager; he was dismissed on the grounds of redundancy. The Tribunal found that the reason for the dismissal was that the employee's post had disappeared in the reorganisation and that the employee had been unfairly dismissed for some other substantial reason. In the EAT the employee took the point that some other substantial reason was neither pleaded nor canvassed at the hearing before the Employment Tribunal.

[28]The EAT, in considering Nelson and Murphy , referred to Hotson v Wisbech Conservative Club

[1984] IRLR 422

in which the EAT had said that, as long as the employer did not change the facts upon which he relied at the date of dismissal, it was open to him to change the label he attached to the reasons for the dismissal where that led to no procedural or evidential disadvantage to the other side. The EAT then said, at paragraphs 12 to 15:- "12 Well now, summarising the effect of those authorities, it seems to us that Mr Finch is undoubtedly justified in submitting that if and in so far as any prejudice has been suffered by his client as a result of the events which we have described, then justice demands that this appeal should be allowed and, at any rate, the case remitted to the Industrial Tribunal to enable them to hear arguments to redress that prejudice. 13 In his submissions before us, Mr Field really accepted that proposition and he made the following submission. He submitted that a party complaining that a tribunal has found the dismissal fair on a found not pleaded or investigated must show some prejudice and that this involves t hat he must show he did not appreciate and had no reasonable grounds for appreciating that the ground found by that tribunal was effectively in issue in the case and might constitute the ground in fact upheld by the tribunal. He concluded his submissions by saying that it must also be shown that there was relevant evidence and that there were relevant matters which could and should have been adduced and/or investigated, had it been appreciated that the ground was one which hit was open to the tribunal to uphold. 14 In effect Mr Field submitted that there were three stages which one had to go through. The first was that the appellant must show some prima facie ground for thinking that there had been prejudice and he conceded that the appellant in the present case might begin to do that. He then submitted that if the respondent could demonstrate prima facie that it would in fact have made no difference had the matters which the Tribunal relied upon in fact been canvassed before them, it was then for the appellant to cross a further threshold by showing what he would in fact have wished to do which would have materially affected the outcome of the case. 15 We consider that that is a proper interpretation of the authorities which have been cited and properly reflects the attitude displayed in the judgment given by Waite, J in the last of the cases that we have cited, Hotson.

[29]The EAT went on to hold that the facts and the bona fides of the reorganisation had been investigated at the hearing and concluded in this way at paragraph 22: 22 It seems to us that one can summarise the distinction between the two lines of authority to which we have referred in this way, that where the different grounds are really different labels and nothing more then there is no basis for saying that the late introduction, even without pleading or without argument, is a ground for interference on appeal; but that where the difference goes to facts and substance and there would or might have been some substantial or significant difference in the way the case is conducted, then of course an appeal will succeed if the Tribunal rely on a different ground without affording an opportunity for argument. For the reasons which we have endeavoured to express, we are persuaded that Mr Field is correct when he says that in the present case the distinction is in truth one of labels and that there are no ground for thinking the case would have been conducted in any significant way differently or more thoroughly investigated or the cross-examination or the evidence called would have been in any way significantly different had the case, as ultimately relied upon by the Industrial Tribunal, been pleaded or canvassed in evidence.

[30]It has been suggested that there had thus developed two lines of authority; but in our view the three decisions to which we have referred establish a clear single principle; in subsequent cases the courts have decided on which side of the line clearly spelt out in Hannan the individual circumstances fell (albeit not in every case with citation of the authorities). The principle is that, if the difference between the reason relied upon by the employer and the reason found by the Employment Tribunal which was not formally raised at the hearing goes to facts and substance and there would or might have been some substantial or significant difference in the way in which the hearing was conducted or in the material which would have been put before the Tribunal, then the Tribunal's substitution of the reason for the dismissal cannot stand; but otherwise such change should be seen as one of re-labelling which did not significantly affect the investigation before the Tribunal – in which case the Tribunal's substitution can stand.

[31]Mrs Jocic's diligence has identified a number of decisions to which she referred in her reply; we will touch on them briefly, together with others put into the bundle on HF's side, because Mrs Jocic regarded them as important – although they do not, in our judgment, establish any new principle or modify the principle which we have just set out. We will refer to them in chronological order. In Burkett v Pendletons (Sweets) Limited (

EAT/167/90

) 7 February 1992 the EAT, Wood P presiding, the Tribunal substituted some other substantial reason as the reason for dismissal for the employer's reason, redundancy, which had been alone investigated at the hearing. The question of reorganisation was not investigated at all. Having referred to Nelson , Murphy and Hannan , the EAT concluded that the circumstances fell on the Nelson's side of the line.

[32]Mrs Jocic relied upon three passages in Burkett . In the first, at the eighth paragraph on the fourth page of the judgment, the EAT suggested that it would be helpful, should a Tribunal see that the way in which a case is evolving is inconsistent with the pleaded reason for dismissal, for the Tribunal to draw that to the attention of the parties and help them to analyse the issues which are truly to be decided. On the last page of the judgment the EAT emphasised that it was particularly desirable that such a course should be taken where parties were unrepresented or had lay representatives. However, while we acknowledge and agree with the good sense of those recommendations, which were not followed in this case in which Mrs Jocic was not represented, the EAT was not laying down principles of law.

[33]In Frame IT v Mrs F Brown (

EAT/177/93

judgment 13 December 1993) the employee was dismissed in a situation in which the employers, in order to cut costs, divided up the employee's duties between three other employees. The Tribunal found that there was no redundancy and, therefore, that the employee had been unfairly dismissed. The employers appealed to the EAT, challenging the Tribunal's decision on redundancy and, alternatively, arguing that the Tribunal should have considered some other substantial reason, which had never been raised. The EAT rejected the appeal; they referred to Nelson and Murphy but not to Hannan ; there is no indication that either Hannan or Burkett was cited. The judgment does not consider whether, had the Tribunal found some other substantial reason, that would have caused any prejudice to the employee.

[34]Next is the EAT's decision, of Morrison J sitting alone, in Church v West Lancashire NHS Trust (No.2)

[1998] IRLR 492

. The question in that appeal was whether, the Tribunal having wrongly found that the reason for dismissal was redundancy, the EAT should remit the case to the Tribunal to consider some other substantial reason. It appears that, at the hearing the employers had, for tactical reasons, chosen not to run some other substantial reason: see paragraph 18. Morrison J held that the circumstances differed from those of Hannan because the point was raised for the first time at the appeal stage and because the Tribunal might wish to hear further evidence or the parties might wish to adduce further evidence: see paragraphs 20 to 22.

[35]Next is the decision of the EAT in Scotland, Lord Johnston presiding, in Mitie Olscot Ltd v Henderson (

EATS/0016/04

) 28 June 2004. The factual context was very different from that of the present case. The employers dismissed employees after seeking to vary their terms and conditions, which variation the employees would not accept. The employees' case was that they had been dismissed for refusing to accept that variation and for raising their concerns and that the employers had simply lost patience with them. The employers' case was that the employees were dismissed for redundancy. Some other substantial reason had been raised in the pleadings but was not canvassed at trial. On appeal it was argued that the true reason for dismissal was some other substantial reason. The EAT rejected that and said that if some other substantial reason was to have been run, the employers would have had to have called evidence about their economic situation which they had not. It appears that neither Nelson , nor Murphy nor Hannan was cited; but at paragraph 9 the EAT said this:

"9. While it may be that in certain circumstances re-labelling or a change of reason can be imposed by this Tribunal, it is clear from the case of Burkett that such a case is only possible where the matter has been promptly investigated in evidence and does not require any further evidential considerations at this level. That test is plainly not met in this case since the matter was not investigated in evidence at all."

That, was, therefore, a case, as was Church, in which, some other substantial reason had not been considered by the Tribunal at all at the hearing or in their judgment and was raised first at the appellate level.

[36]Leeson v Makita Manufacturing Europe Limited (

EAT/0911/00

judgment 20 December 2001), Mr Commissioner Howell QC presiding, was a very different case in which the employers dismissed the employee for misconduct and relied on misconduct throughout the hearing. The Tribunal rejected the misconduct case but found that there was some other substantial reason, the factual basis for which had not been explored. The employee's appeal, not surprisingly, succeeded.

[37]Finally in Easter v The Governing Body of Notre Dame High School (

EAT/0615/04

) judgment 11 November 2004, HHJ McMullen QC presiding, the employees' appeal against the Tribunal's conclusion that the reason for dismissal was some other substantial reason when the employers had relied on misconduct was allowed; further examination of the evidence was required; the case was not one of re-labelling.

[38]From all of these authorities, in our view the principles to be derived are those set out in paragraph 22 of the EAT's judgment in Hannan which we do not need to repeat. The resolution of the first ground of appeal in the present case depends upon our view as to whether the change of reason is properly one which could be described as re-labelling or whether the change involves facts and substance and there would or might have been some substantial or significant difference in the way in which the hearing before the Tribunal was conducted had some other substantial reason been raised by the Respondents, bearing in mind always Mrs Jocic's position as a litigant in person.

[39]Mrs Jocic argues, in her skeleton argument that:- 1) If an alternative post to which she could have been transferred had existed, there was no need for her to be put on the redeployment register or made redundant and the Tribunal never considered the selection criteria by which she was selected for redundancy. 2) She was prevented from knowing that, if the Respondents had adhered to their reorganisation procedure, she would have been able to have had assimilation rights if not to the team leader technical support and IT post, then to the other post of development technician to which that part of her duties which did not go to the first post was allocated.

[40]In oral argument Mrs Jocic has explained to us what she meant by those arguments and has elaborated upon them in this way. She points to the Tribunal's finding as to the bifurcation of the duties of the post she held before the reorganisation. She argues that the thrust of the Respondent's case at the Tribunal was that she could not have been assimilated to the role of the team leader technical support and IT post because it carried the requirement of a planning qualification and could not have been assimilated to the other post, to which the remainder of her duties ultimately went, because that post was not established until September 2004, some months after Mrs Jocic had left HF's employment. But the truth was, she said, that the latter post existed from April, that documents were before the Tribunal which proved that that was so and that Mrs Ramsay was carrying out the duties of that post, including those which had previously been part of Mrs Jocic's job, from that time; the documents demonstrating that HF's assertion that this post was not created until September was false; and the Tribunal should have found that the so called redundancy of Mrs Jocic was a sham.

[41]Mrs Jocic acknowledged that the Tribunal found, as fact, at paragraphs 61, 62 and 73 that the post of Team Leader in Building Control, to which Mrs Ramsay was appointed, was created in September 2004 separately from the reorganisation in April and that those findings could not now be challenged as perverse; but she submitted that she was not able fully to investigate issues which related to the bifurcation of her duties or the genuineness of that bifurcation and why she was not considered for a transfer or assimilation to one post or the other as she would have done if she had been aware of the prospect of finding that the reason for her dismissal was some other substantial reason.

[42]Mrs Jocic has told us, that, when in the course of the hearing it became clear that her case was that the post Mrs Ramsay was given was not established in September, as HF asserted, but earlier Mr Lynch, Counsel for HF, produced(1) Mrs Ramsay's appointment letter dated September 2004 and

(2) payslips to support his clients case; but, said Mrs Jocic, the payslips showed additional payments backdated to April, thus evidencing the sham nature of HF's case.

[43]Mrs Jocic further argued that the Tribunal did not explain why she was not considered for assimilation to either post and simply jumped from the conclusion that the dismissal was not for redundancy to the conclusion that it was for some other substantial reason.

[44]She did however accept that one of the principal aspects of the investigation carried out by the Tribunal was her case that(i) the employees could not explain why they had not assimilated her to either of the posts to which we have referred and

(ii) the second post was created and Mrs Ramsay was employed in it effectively from April and that Mrs Jocic's supposed redundancy was a sham; and it is, in our judgment, clear that whether Mrs Jocic should have been assimilated to one or the other post was expressly considered by the Tribunal.

[45]Mr Lynch submitted that the circumstances of the present case were closely analogous to those in Hannan in which, in paragraph 17 to 18, the EAT set out how it had been argued for the employee that, had some other substantial reason been under consideration by the Tribunal, he would have wished in more detail to have investigated the bona fides of the Respondents' actions; but the EAT had concluded that their bona fides had been fully investigated during the course of the hearing. There is much strength in that argument. In our judgment it is clear that the bona fides of HF's treatment of Mrs Jocic in the reorganisation and her case as to how and why she was not assimilated to one of the two posts between which the duties of her job were shared was fully put before the Tribunal, fully investigated in the course of the hearing and was the subject of clear findings by the Tribunal. Mrs Jocic's case was, insofar as it related to the Team Leader Technical Support and IT post, set out on the first page of the narrative of her claim form (bundle 1 page 55); her case about Mrs Ramsay's appointment to the second post is foreshadowed at paragraph 17 of her "further particulars of sex discrimination claim marriage discrimination" (bundle 1 page 88). HF put these allegations in issue at paragraph 7.14 of their response (bundle 1 page 133) and at paragraph 17 of their further particulars (bundle 1 page 147). In paragraphs 31 to 39 of the further particulars Mrs Jocic made her case wholly clear; we have no doubt that the case thus outlined was the case she pursued at the hearing. Mr Lynch informed us and Mrs Jocic did not disagree that she had given detailed evidence about these matters and about her further complaint that Ms Murray had survived the reorganisation. The issue as to the bona fides of the creation of the Team Leader Technical Support and IT post, with its planning duties and its grading, and as to the timing of the establishment of the second post were fully examined in the course of the evidence. The documents which Mrs Jocic said demonstrated that a second post had been in existence from April 2004 were, plainly, considered; it was in order to rebut this aspect of Mrs Jocic's case that Mr Lynch introduced the further documents to which Mrs Jocic referred.

[46]The Tribunal, in our judgment, can be seen to have addressed these issues and made findings which amount to a rejection of Mrs Jocic's case. As to the first post, at paragraph 73 and 74 the Tribunal expressly found that Mrs Jocic's post was eliminated as a result of the reorganisation but that she could not be assimilated to that post because she did not have the necessary planning qualifications: see paragraph 74.1. At paragraph 106, in their conclusions on the sex discrimination complaints, they said:

"The new role of team leader technical support and information technology required a planning qualification which Mrs Jocic did not have. This was the reason why she was not assimilated to that role…"

They repeated that conclusion at paragraph 112 and, again, in addressing the equal pay claim, at paragraph 123.

[47]As to the other post the Tribunal made these express findings at paragraphs 61 and 62: 61 Miss Ramsey, who had reported to Ms Jocic, was assimilated into the building control support service as part of the assimilation. She asked for her duties to be re-evaluated as she felt that the post of technical support did not reflect the duties she was undertaking. The re-evaluation was separate from the reorganisation of April 2004. Mr Moralee told the Tribunal that he did not envisage Miss Ramsey as team leader when he wrote the report on the proposed new structure nor in April when the new structure was adopted or at any time before the effective date of termination of Mrs Jocic's employment. Mr Moralee's evidence was that he was not involved in the decision to appoint Miss Ramsey in September 2004 and that Mr Jayaweera did not discuss the matter with him because this was a building control matter. 62 Miss Ramsey was interviewed for the post of team leader building control technical support by Mr Jayaweera and Ms Grey on 10 September 2004 and the interview notes appear at page 1107-1120. Following this, she was made a provisional offer of appointment by letter dated 27 September 2004 (page 1121) with an effective date of 1 April 2004. Ms Wallace told the Tribunal that Mr Jayaweera had felt that Miss Ramsey had performed these duties since 1 April 2004 and that was why the effective date of appointment was 1 April 2004. Miss Ramsey had previously held the post of development technician building control and was transferred to the building control section as part of the reorganisation." And in paragraph 73 they concluded:

"…one of the development technicians who had been responsible to Mrs Jocic (Sandra Ramsay) was moved to building control as part of the reorganisation. The reorganisation plan contemplated that the building control support service would be directly managed by the head of building control. Subsequently in September 2004 the head of building control decided to create a post of team leader in building control to which Miss Ramsay was appointed."

[48]One of Mrs Jocic's specific complaints of marital discrimination was that Ms Murray was not made redundant; she referred to the comparison between her own case and that of Ms Murray in the course of her arguments to us; but the Tribunal addressed that issue at paragraph 113 where they said:

"113 Mrs Jocic complains that Helen Murray was not made redundant on 13 July 2004 (page 90(z)(iii)), despite the fact that at this point there was no post in the structure for her. We have no clear evidence as to the marital status of Ms Murray. Paragraph 2.12 of Mrs Jocic's witness statement referred to a partner 'Jen' and the Further and Better Particulars at 90(z)(iv) suggest that Ms Murray is single. The Claimant never put this to any of the Respondents' witnesses in cross-examination and although we note the point made in the Further and Better Particulars, we have insufficient evidence to infer that the retention of Ms Murray as a supernumerary was either because of Mrs Jocic's sex or marital status."

[49]In these various paragraphs the Tribunal were responding to Mrs Jocic's case by making findings which set out in clear terms that they did not accept it.

[50]As to selection procedures, no additional issue arose as a result of the introduction of some other substantial reason. If some other substantial reason had been raised in the course of the hearing, selection procedures would not have been in point to any greater extent, if at all, than they were at the hearing. Some other substantial reason for Mrs Jocic's dismissal arose wholly from the effect of the reorganisation which eliminated Mrs Jocic's post and transferred its duties to other posts in the new organisation. These were precisely the circumstances which the Tribunal were investigating.

[51]For these reasons, applying the principles in the decided cases to which we have referred, we take the view that the factual enquiry as to redundancy and as to some other substantial reason, had the latter been raised before the Tribunal in the course of the hearing, would have been exactly the same as that which took place before the Tribunal and, albeit Mrs Jocic was not represented, the introduction of the new reason in this case was no more than the attachment of a different label to precisely the same set of facts and did not cause and could not have caused any prejudice to Mrs Jocic. As did the EAT in Burkett we too take the view that it would have been wiser for the Tribunal, once they had concluded that some other substantial reason might be the true reason for the dismissal, to have communicated with the parties and invited further written submissions; but having heard Mrs Jocic's submissions at length, we have no doubt that further submissions would have made no difference; her case had been fully considered by the Tribunal and rejected on the facts. Sex discrimination - Findings of fact

[52]For reasons which will become clear, we shall first set out what the Tribunal said in the five paragraphs which are specifically identified in the amended Notice of Appeal as those to which Ground two of the amended Notice of Appeal relates, namely paragraphs 94, 95, 96, 100 and 103:

"94 The claim at paragraph 1 relates to February 2000 and is out of time. In any event, Mr Pallace was unable to recall this matter and there is no corroborative evidence so the Tribunal is not able to make any finding of less favourable treatment. 95 Paragraph 5 relates to 21 September 2000. This matter is out of time. Mr Pallace was unable to recall any of this but denied that he would have made remarks of this nature. In the circumstances the Tribunal cannot make any finding of less favourable treatment. 96 Paragraph 6 relates to October and November 2000 and this claim is out of time. Mr Pallace denies that he would ever have used the expression 'ticking biological clock'. We were satisfied that this was the case and have been unable to make any findings. In these circumstances, Mrs Jocic has not demonstrated any less favourable treatment. 100 The next complaint is at paragraph 21 which relates to visits to the sick room by Mrs Jocic in Summer 2003. The complaint is out of time. The allegations complained of were emphatically denied by Mr Moralee and we have made no finding that they took place. In these circumstances, Mrs Jocic has not demonstrated less favourable treatment on the grounds of sex or marital status. 103 The next complaint is at paragraph 28, that on 29 December 2003, Ms G Rubio, Mr Nagy and Mrs Jocic were called into Mr Moralee's office to discuss workloads. This complaint is out of time. The allegation is that the Claimant left the room and returned and had to climb over Mr Moralee's outstretched legs. We have been unable to make any finding on the evidence that Mr Moralee's legs were outstretched and therefore Mr Jocic has demonstrated no less favourable treatment."

[53]We need to add that the claim referred to in paragraph 94 was that Mr Pallace had said to Mrs Jocic in February 2000 that he wondered whether she was worth her grade and that she took things too seriously; paragraph 95 relates to a claim that in September 2000 Mr Pallace asked Mrs Jocic if she wanted children and asked her to delay doing so until the implementation of a particular work project. This claim is the subject of factual conclusions at paragraph 90. Paragraph 96 relates to the allegation that Mr Pallace had talked to Mrs Jocic about ticking biological clocks; see also paragraph 20. Paragraph 100 relates to an occasion in August 2003 when, Mrs Jocic alleged, Mr Moralee had said to Mrs Jocic "oh so you're planning children…you can tell me I'm not Nigel"; see, with more detail, paragraph 21 of the further particulars of the sex discrimination claim. The content of paragraph 103 is described within it.

[54]Ground 2 of the amended grounds of appeal puts forward two points. The first is that the Tribunal failed to discharge their responsibility to make findings of fact as to the these allegations made by Mrs Jocic against Mr Pallace and Mr Moralee, despite having heard evidence about them; the second is that the Tribunal regarded it as necessary to find some corroboration of Mrs Jocic's evidence before finding facts in her favour. The words "…there is no corroborative evidence so the Tribunal is not able to make any finding of less favourable treatment" in paragraph 94 are specifically relied upon.

[55]Counsel who drafted the amended grounds of appeal plainly intended to limit the second point to those complaints in respect of which words such as those which we have just identified were used and to the numbered paragraphs identified in ground 2. Mrs Jocic, in her skeleton argument, appears to have construed the second point as extending, in effect, to the Tribunal's entire consideration of and decisions as to her complaint of sex discrimination; however, before us she readily accepted that the second limb of ground two did not relate to any paragraphs other than those specifically identified in the first limb; and the argument proceeded on that basis.

[56]The amended grounds of appeal expressly refer to the decision of the EAT, HHJ Richardson presiding, in Peart v Dickson's Store Group Retail Ltd (

EAT/0030/04

judgment 10 November 2004). That was a sex discrimination case, albeit of a rather different type, in which the Claimant claimed principally that a colleague had regularly made unwelcome remarks of a sexual nature to her, had pinched her bottom and had touched her in such a way as to tear her trousers. She complained, too, that another colleague had made an inappropriate remark to her. The EAT's judgment, at paragraphs 10 to 12, set out the relevant parts of the judgment of the Tribunal, sitting at London (Central), as follows: 10. As to Miss Peart's allegations concerning Mr Sappleton, the Tribunal said:

"8. Miss Peart says that another sales adviser, Mr P Sappleton, made remarks about her sex life on a daily basis. There is no supporting evidence for this. The evidence of Miss Gowdie, called by Miss Peart, is hearsay evidence and all the Respondent's witnesses deny that such remarks were made. In these circumstances, we can make no finding. 9. Miss Peart alleges that Mr Sappleton pinched her bottom, which she said was witnessed by Miss Byfield-Johnson. Miss Byfield-Johnson gave evidence and denied that this happened. There is a direct conflict and the Tribunal can make no finding that this occurred. 11. Miss Peart alleged that Mr Sappleton had said that she was sleeping with other men, referring to her boyfriend, and that "she could not handle the sex that he could give her."

There is no corroborative evidence of this or of any of the remarks that Mr Sappleton is supposed to have made. We are therefore unable to make any finding that these remarks were made. 11. As to the specific incident concerning the ripping of the trousers, the Tribunal said:

"13. Miss Peart gave evidence that on 10 September 2001, Mr Sappleton ripped her trousers. She told us that it was a Wednesday. In fact, 10 September 2001 was a Monday. Miss Peart's evidence was that Miss Byfield-Johnson was present but Miss Byfield-Johnson says that she was not present. Miss Peart's evidence was that she informed Mr Robson but Mr Robson said that she did not. 14…There is nothing in the evidence that specifically corroborates that Mr Sappleton ripped Miss Peart's trousers or that Miss Peart reported it to Mr Robson at the time. For this reason, we can make no finding that Mr Sappleton did rip Miss Peart's trousers. 12. The Tribunal also dealt with an allegation about an inappropriate remark by Mr Omiyi by saying, after reviewing the evidence: "

There is nothing to support any remark made by Mr Omiyi whilst he was putting up Christmas decorations and we cannot find that any remark was made by him by Miss Peart."

[57]The EAT, in their judgment, having considered the rival submissions, said this:24. In a case where there are disputed issues of fact relevant to the question whether there has been unlawful discrimination, a Tribunal will be charged with resolving the disputes and finding the primary facts. That was the duty of this Tribunal.

25. The Tribunal has repeatedly adopted the formula, "We can make no finding": (paragraphs 8, 9 and 14) or "we are therefore unable to make any finding." (paragraph 11) or "we cannot find that" (paragraph 18). This is an unsatisfactory formula for dealing with disputed allegations of fact, for more than one reason.

26. Firstly, it will generally be the duty of a Tribunal, faced with the decision as to whether a particular event occurred or not, to find as a fact whether it occurred. If there is evidence both ways, it can decide either way. Generally that is precisely what it should do. There will be rare occasions when the evidence is so finely that the Tribunal is unable to make up its mind whether the event occurred or not. In that rare event, the Tribunal should say so, and the burden of proof will decide the issue.

27. Authority for these propositions will be found in Morris v London Iron and Steel or Company Limited

[1987] 2 ALL ER 496

at 500-501: "A judge or tribunal of fact should make findings of fact in relation to a matter before it if they can. In most cases, although in some it may be difficult, they can do just that. Having made them, the tribunal is entitled to draw inferences from the findings of primary fact where appropriate. In the exceptional case, however, a judge conscientiously seeking to decide the matter before him may be forced to say, 'I just do not know': indeed, to say anything else might be in breach of his judicial duty. In is connection, however, I would say this. Speaking from my own experience, some people find it easier to make up their minds than others and it should not be thought that a swift reliance on where the burden of proof lies and a failure to decide issues of fact in the case ought in any way to be considered an easy or convenient refuge for anybody who does find it difficult to make up his mind in a particular case. Judges should, so far as is practicable and so far as it is in accordance with their conscientious duty, make findings of fact. It is the exceptional case that they may be forced to reach the conclusion that they do not know which side of the line the decision ought to be in any event, where the ultimate decision can only be between two alternatives, for instance negligence or not, or, in the instant appeal, dismissal or resignation, then when all the evidence in the case has been called the judge or the tribunal should ask himself or itself whether, on the totality of the evidence, on the balance of probabilities, drawing whatever inferences may be thought to be appropriate, the alternative which it is necessary for the plaintiff to succeed is made out. If it is not, then the operation of the principle of the burden of proof comes into play and the plaintiff fails."

28. The second reason why the formula used by the Tribunal is unsatisfactory is that the use of a formula expressed in terms of "cannot' or "is unable to" may suggest that the Tribunal thought there was some legal bar to a particular result. There is no legal bar to the Tribunal believing one witness against another or against a number of other witnesses.

29. Thirdly, the parties at the end of a case are entitled to know why they have won or lost. The approach of the Tribunal is inimical to this. If the Tribunal concluded that Mr Sappleton, for example, did not bully or harass Miss Peart, the Tribunal should say so. They should also say whose evidence they did or did not believe, and why.

30. The manner in which the Tribunal expressed itself in this case is in the experience of this Appeal Tribunal unusual. Tribunals generally do find the facts one way or the other and give reasons for doing so. The approach of this Tribunal should not find its way into general usage.

31. If the Tribunal were intending to say that they found it impossible to make up their minds about the complaints, and that this was an exceptional case where they relied on the burden of proof, they should have said so. If they assessed the evidence of the witnesses, rejected the evidence of Miss Peart wholly or in part, and found that the allegations she was making were untrue, then again the Tribunal should have said so, and given succinct reasons for their conclusions. This was all the more so, when Mr Sapppleton did not give evidence. There is in the Tribunal's decision no reference to the fact that Mr Sappleton did not attend and given evidence in accordance with the witness order that was made against him. There is no reference to how they assessed the evidence given under oath by Miss Peart on the one had as against the untested witness statement of Mr Sappleton and on the other. We respectfully agree with and endorse the views expressed by the EAT in these paragraphs.

[58]Mrs Jocic has also referred to the decision of the Court of Appeal in Flannery v Halifax Estate Agencies Ltd (unreported 18 February 1999) in which the Judge, in a claim by flat owners against a valuer for negligent valuation, resolved in one line a substantial dispute between the evidence of a number of expert witnesses as to whether, at the time of the valuation, the property was suffering from foundation subsidence. In that line the Judge simply said that he preferred the Defendant's expert evidence to that given on behalf of the Claimants. The Court of Appeal said: It is not a useful task to attempt to make absolute rules as to the requirement for the judge to give reasons. This is because issues are so infinitely various. For instance, when the court, in a case without documents depending on eye-witness accounts is faced with two irreconcilable accounts, there may be little to say other than that the witnesses for one side were more credible." and We make the following general comments on the duty to give reasons:(1) The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know (as was said in Ex p. Dave) whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.

(2) The first of these aspects implies that want of reasons may be a good self-standing ground of appeal. Where because no reasons are given it is impossible to tell whether the judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of an appeal unless the court entertains an appeal based on the lack of reasons itself.

(3) The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject-matter. Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence; but it is not necessarily limited to such cases.

(4) This is not to suggest that there is one rule for cases concerning the witnesses' truthfulness or recall of events, and another for cases where the issue depends on reasoning or analysis (with experts or otherwise). The rule is the same: the judge must explain why he has reached his decision. The question is always, what is required of the judge to do so; and that will differ from case to case. Transparency should be the watchword.

[59]We do not regard that decision as adding, in the context of the present case, to the well-known authorities such as Meek v City of Birmingham District Council

[1987] IRLR 250

which require an Employment Tribunal to give sufficient reasons to enable the parties to know why they have won or lost on relevant issues. Flannery was predominantly a decision as to the extent of reasons required to be given by a court when it resolves a conflict between expert witnesses; see the first of the passages we have quoted above.

[60]On the basis of these authorities and Peart in particular, Mrs Jocic submitted that the impugned paragraphs did not tell her with any clarity why the complaints upon which they purported to adjudicate did not succeed; the Tribunal were under a duty to find facts or, in the rare case in which they could not do so, to explain why that was so. She submitted that had there been, as there often is in an Employment Tribunal judgment where credibility is an issue, a paragraph in which the Tribunal set out their general views on the credibility of the principal witnesses, the lack of reasoning might have been explained; but there was no assessment of credibility generally or in the impugned paragraphs.

[61]As to corroboration she submitted that, in paragraph 94, the Tribunal had clearly, but erroneously, expressed the view that, without corroborative evidence, her claim could not succeed and that that error must be taken to have permeated the other paragraphs.

[62]Mr Lynch submitted (1) that Peart was a wholly different case in which the Tribunal had failed to make findings at all and had, in particular, wholly failed to mention that the leading alleged perpetrator had not complied with the witness order that he should attend the hearing and had therefore not given any evidence – see paragraph 31 (2); the views expressed by the EAT in Peart were not statements of principle or, if they were, they went too far and were inappropriate, (3) in any event in this case Mrs Jocic had complained of 5 out of 19 paragraphs in which, when they were read as a whole as they should be, the Tribunal could be seen to have rejected Mrs Jocic's discrimination case principally but not exclusively on the basis that she had not proved the less favourable treatment of which she complained i.e. her version of events was not accepted. When the group of paragraphs was looked at as a whole and the language considered in that way, what the Tribunal meant in the impugned paragraphs was clear; there were sufficient findings.

[63]While we accept both that the alleged chief perpetrator in Peart did not respond to a witness order and did not give evidence and that the Tribunal did not refer to those facts, the EAT's criticisms of the Tribunal's judgment in that case are not dependant upon or conditioned upon that facts. The principles set out by the EAT are directed at the language used by the Tribunal which, the EAT considered, did not convey clear findings of fact. In paragraph 31 (see above) the EAT said that the duty of the Tribunal to find facts and, if they found that Ms Peart's evidence was untrue, to give reasons for so doing, was heightened by the absence of evidence from the chief perpetrator; but the principles they laid down would have applied even if he had given evidence. We do not agree that the EAT in Peart was not making a statement of principle; and we have been disturbed to see from the decision in this case that, despite the statements of principle set out by the EAT in clear terms in their judgment in Peart , some 17 months later the London (Central) Tribunal has, in this case, used similar expressions.

[64]However, despite these strictures, we have to decide, in the context of this case and in particular of the other paragraphs of the relevant section of the Tribunal's judgment and other paragraphs to which we will refer, whether the words used by the Tribunal sufficiently reveal or amount to findings of fact, as Mr Lynch submits, or demonstrate an abrogation of the Tribunal's duty to find the facts, as Mrs Jocic submits.

[65]In answering that question we have reminded ourselves that we must not seek to derive positive findings from the impugned paragraphs by straining the language used by the Tribunal or by assuming the role of classical scholars studying a text. Our task is not to try to save the impugned paragraphs or the opposite; it is to decide whether they contain and communicate, with sufficient clarity, adequate findings.

[66]Having so directed ourselves, we have concluded that the meaning of the impugned paragraphs is, in each case, sufficiently clear. We go first to paragraph 96 which, as we have said, addresses the allegation that in October/November 2000 Mr Pallace spoke to Mrs Jocic about ticking biological clocks. The Tribunal in that paragraph demonstrate, as we see it, what their words "the Tribunal cannot make any finding of less favourable treatment" mean. In the previous two sentences the Tribunal expressly accept Mr Pallace's evidence that he would not have used the expression "ticking biological clock"; they thus expressly rejected Mrs Jocic's evidence as to that incident. The words "the Tribunal cannot make any finding of less favourable treatment" were manifestly intended to mean "we find that there was no less favourable treatment" or "we are not satisfied that there was less favourable treatment". The words "had been unable to make any findings" been the same meaning.

[67]It is helpful in the context of paragraph 96 to look at paragraph 20 in which, in the fact finding section of their judgment, the Tribunal addressed the same incident. They said there of that incident:

"This is denied by Mr Pallace and we have no supporting evidence and we cannot make a finding that this took place."

The two paragraphs, when considered together, support the view we have formed of paragraph 96 standing alone. The words "we cannot make a finding that this took place" can only mean in the context "we have concluded that the episode did not take place" or that the Tribunal were not satisfied that it did take place which, of course, comes to the same thing.

[68]Paragraph 95 not only can but, in our judgment, should be similarly understood. In relation to this incident – in which Mr Pallace was alleged to have asked Mrs Jocic if she wanted children and to delay having children – the Tribunal have recorded, as in the case of the paragraph 96 incident, that Mr Pallace could not recall any such incident but denied that he would have made the remarks alleged. The meaning of "in the circumstances the Tribunal cannot make any finding of less favourable treatment" should, on any fair reading, bear the same meaning in wholly similar circumstances as the words "we have been unable to make any findings" in paragraph 96.

[69]This incident, too, is addressed earlier in the Tribunal's judgment, at paragraph 19 where the Tribunal said:

"19 In September 2000 Mrs Jocic heard from Ms Fletcher that Ms Fletcher would be returning from maternity leave and told Mr Pallace. There is no evidence before us from which we can make a finding that Mr Pallace asked Mrs Jocic if she wanted to have children. He denies this in his own evidence and categorically says that he did not ask her to postpone having children until after implementation of the CAPS computer system. There is nothing to support Mrs Jocic's allegation and we can make no finding in that regard."

Again the two paragraphs on the same subject should be read together; and when approached in that way their meaning is clear; the Tribunal rejected or did not accept Mrs Jocic's account. We will return later to the words "there is nothing to support Mrs Jocic's allegation" in that paragraph.

[70]When Paragraph 94, relating to Mr Pallace's having wondered whether Mrs Jocic was worth her grade and having said that she took things too seriously, is read in the context of the remainder of the relevant section of the judgment and the judgment as a whole and particularly in the context of paragraph 95 and 96, it too can be understood in only one way. It is another example of an alleged incident of which Mr Pallace had no memory but denied in evidence that it would have happened. There was no other evidence to support Mrs Jocic's evidence. The Tribunal did not accept her evidence and did not find that the less favourable treatment of which she complained had occurred.

[71]Paragraph 100, in our judgment, confirms the view we have taken of paragraphs 94 to 96. The Tribunal in paragraph 100 have accepted Mr Moralee's denial; they "made no finding that they "(the allegations)" took place" i.e. they did not accept Mrs Jocic's evidence. This allegation is the subject of a factual finding at paragraph 32 which supports our conclusion.

[72]Our view of paragraph 103 can be deduced from our views on the paragraphs we have so far discussed. It is not in dispute that Mr Moralee denied the allegation made by Mrs Jocic. We have no difficulty in concluding that in this paragraph, too, the Tribunal were setting out that they did not accept Mrs Jocic's evidence and therefore she had not proved less favourable treatment.

[73]We have, in considering these paragraphs, borne in mind the point made by Mrs Jocic that there was no paragraph in the Tribunal's judgment in which they set out their general views of the credibility of the witnesses. Such a paragraph would have been helpful in the present case; but it is not an essential requirement; and we have been able to form a firm view as to the meaning of the impugned paragraphs without it. In our judgment there was no abrogation of the Tribunal's duty to make findings of fact and to explain them; although they use language which is less than wholly satisfactory (to which we will return) the Tribunal can be seen to have reached factual conclusions in each case that Mrs Jocic's allegations were not accepted.

[74]We turn, therefore, to the second limb of ground 2. We have already set out Mrs Jocic's argument that the Tribunal, particularly in paragraph 94, based their decision on a requirement that there should be evidence which corroborated or supported that of Mrs Jocic if her factual account was to be accepted. So far as paragraph 94 is concerned, that assertion involves reading the words "Mr Pallace was unable to recall this matter and there is no corroborative evidence so the Tribunal is not able to make any finding…" as meaning "Mr Pallace was unable to recall this matter and there is no corroborative evidence; because there is no corroborative evidence the Tribunal is not able to make any finding…".

[75]It hardly needs to be said that there is no principle of substantive law or of the rules of evidence which requires corroboration of a complainant's evidence as to the incidents which are alleged to have constituted less favourable treatment. A Tribunal which proceeded on the basis of such a principle would, as Mr Lynch pointed out, have committed a gross error of law, in an area with which a Tribunal can be expected to be wholly familiar; such an error would be unlikely to be made by anyone with any experience of employment law and is highly unlikely to have been made by the Tribunal in this case. Did they nevertheless make that error? In our judgment they did not. The error, we believe, lies in Mrs Jocic's analysis of paragraph 94 and, in particular, of the word "so". We prefer Mr Lynch's submission that that word, in the context, means "in the circumstances". The circumstances were that(1) Mr Pallace, as in the case of other alleged incidents, had no memory of any such incident and denied that he would have acted as Mrs Jocic alleged,

(2) the Tribunal were not, in general terms, able to accept Mrs Jocic's evidence about the incidents referred to in paragraphs 94 to 103,

(3) there was no corroboration of Mrs Jocic's account. In those circumstances the Tribunal was not able to make i.e. did not make a finding of less favourable treatment.

[76]This view is, in our judgment, supported by paragraphs 20 and 32 (referring to the incidents addressed in paragraphs 95 and 100). In those two paragraphs the Tribunal can be seen to have used words similar to those used in paragraph 94 but in a way which demonstrates that they did not believe that there was any requirement for corroboration; they were simply using, as part of their reasoning, the fact that there was no corroboration.

[77]For these reasons we have concluded that there was no error of law on the part of the Tribunal in the impugned paragraphs such as has been suggested in ground 2 of the amended grounds of appeal.

[78]Accordingly we conclude that ground 2 of the amended grounds of appeal fails. However we need to repeat what was said by the EAT in Peart. The choice of words used by the Tribunal in the impugned paragraphs has led to substantial argument before us as to their true meaning, which argument should not have been required. The use of a formula such as "the Tribunal is not able to make a finding" was firmly criticised in Peart ; such a formula should not be used unless the Tribunal are truly in a position in which they cannot decide who to believe and therefore have to fall back on the burden of proof, a situation which should rarely arise and which should be clearly explained if it does. It is important that the Tribunal should seek to avoid using language which might suggest to one or more of the parties there was some legal bar to a particular result when no such bar existed. While we understand the natural desire of a Tribunal to "let the complainant down gently", that desire should not lead the Tribunal to shy away from making clear findings as to which version of disputed facts is preferred where it is necessary to do so. Ground 3 – extension of time

[79]Because of the acknowledged need of Mrs Jocic to succeed on both grounds 2 and 3 in respect of any complaint of sex discrimination which is to survive the Tribunal's decision, this ground can only apply to those complaints which(a) fall within ground 2 i.e. paragraphs 94 to 96, 100 and 103 and

(b) we have found to have been the subject of error of law on the part of the Tribunal. Those complaints could only be the subject of remission for reconsideration by the Tribunal if, they being prima facie out of time, the Tribunal's decision that they should not be the subject of an extension of time, on the basis that it was just and equitable to grant such an extension, was also made in error of law.

[80]We have concluded above that in none of those paragraphs did the Tribunal err in law; however, lest we may be mistaken in that conclusion, we now address ground 3 which goes to that decision as to extension of time.

[81]Central to this ground of appeal is paragraph 90 of the Tribunal's decision which is as follows:

"90 In relation to the matters that are out of time we have to consider whether it is just and equitable to extend time. Mrs Jocic has not given any evidence as to why it is just and equitable to extend time. She argues that the reason she did not present her claims earlier was because of the impact of harassment and her post-traumatic stress and that the Respondent would not suffer a detriment. The Tribunal is not satisfied in these circumstances that it is just and equitable to extend time."

[82]The amended Notice of Appeal puts forward one point only, namely that, in paragraph 90, the Tribunal failed to give any adequate reasons for rejecting Mrs Jocic's case that it was just and equitable to extend time in relation to her discrimination claims and that paragraph was not, to use current employment law jargon, "Meek compliant" i.e. did not comply with the principles laid down by the Court of Appeal in Meek (see above) that reasons should be given so as to enable the parties to understand why they had respectively won or lost.

[83]It is asserted in the amended grounds of appeal that Mrs Jocic had given evidence about the impact of harassment and her post traumatic stress upon her. However, before us Mrs Jocic confirmed that she had not given any evidence in support of her case that it was just and equitable to extend time and that she advanced the points as to stress etc only in her written closing submissions. Mrs Jocic having given no evidence on the just and equitable issue, Mr Lynch, of course, did not open up that issue in cross-examination. Thus there was no evidence about it before the Tribunal.

[84]In the light of that very fair acceptance on Mrs Jocic's part as to the true evidential position before the Tribunal, it is, in our judgment, clear why the Tribunal did not and did not need to enter into elaborate reasons. As they correctly stated, Mrs Jocic had given no evidence as to why it was just and equitable to extend time. She had only put forward written arguments, which were of course unsupported by evidence; but the burden of proof that it was just and equitable to extend time lay on her. The Tribunal's reasoning, in these circumstances, is accurate, concise and, in our judgment, sufficient to tell Mrs Jocic why she lost on that issue and to tell HF why they won.

[85]However, in argument before us, Mrs Jocic raised orally a new point which, if ever raised before, is certainly not raised in the amended grounds of appeal and was not a point permitted by HHJ Reid QC to go through to a full hearing. Her point was that she was deprived of the opportunity to give evidence in support of her case that it was just and equitable to extend time by the intervention of the Tribunal who told her that she should give evidence on that issue at the end of the hearing; but at the end of the hearing she became ill – see paragraphs 15 and 16 of the Tribunal's judgment – and was able only to put in her written submissions. Mrs Jocic told us that she had put this complaint into the affidavit which she had been ordered to provide in support of her allegations of bias or improper conduct which were in the original Notice of Appeal considered at the sift stage of this appeal by HHJ McMullen QC (EAT order of 18 September 2006). However if this complaint was raised originally, it could not have survived the oral hearing before HHJ Reid QC; on that occasion the appeal proceeded only on the basis of the three amended grounds of appeal; none of the original grounds of appeal was pursued; and, as the amended grounds expressly state, the grounds therein replaced and stood in substitution for the original grounds. If this complaint was not raised originally, it is far too late for it to be raised now; and if it was raised originally it could not in the circumstances be reopened before us.

[86]Mr Lynch, who was of course present throughout the Tribunal hearing, told us that what Mrs Jocic had said was factually incorrect; and that neither he nor his solicitors had any recollection of the Tribunal saying anything about Mrs Jocic giving evidence on the just and equitable issue; and we agree with him that there does not appear to be any reason why the Tribunal should have done so; but we do not need to or intend to resolve any factual dispute as to what happened before the Tribunal. The point is not raised in the amended Notice of Appeal; no permission to pursue it to a full hearing had been given; Mrs Jocic did not apply to further amend the amended Notice of Appeal to add this point; but if she had done so we undoubtedly would have not granted such an application. The point is not properly raised before us and cannot be pursued.

[87]For these reasons ground 3 of the amended grounds of appeal also fails. Conclusion

[88]Accordingly all 3 of the amended grounds of appeal fail; this appeal is dismissed.