MRS C CLARKE v ZURICH UK GENERAL SERVICES LTD [2010] UKEAT 0184_10_1008

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2010] UKEAT 0184_10_1008

Case No Appeal No. UKEAT/0184/10

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS C CLARKEAPPELLANT

ZURICH UK GENERAL SERVICES LTDRESPONDENT

Before

His Honour Judge Serota

Date 10 August 2010

[1]APPEARANCES For the Appellant MRS C CLARKE (The Appellant in Person) For the Respondent MS ANYA PALMER (of Counsel) Instructed by: Bevan Brittain LLP King's Orchard 1 Queen Street Bristol BS2 0HQ SUMMARY UNFAIR DISMISSAL The Employment Tribunal was entitled on the evidence before it to conclude that the Claimant had participated in the unlawful detention of a private enquiry agent, although there was evidence before the Employment Tribunal that supported the Claimant's case. The weighing up of conflicting evidence was a matter solely for the Employment Tribunal and complaints as to its findings did not (in the absence of perversity) raise any point of law. HIS HONOUR JUDGE SEROTA QC This is an appeal by the Claimant, Mrs Cherry Clarke, from the decision of the Employment Tribunal in Birmingham presided over by Employment Judge Gaskell who sat with two lay members. The merits hearing lasted for some 14 days plus a day in chambers and a judgment was sent to the parties on 30 July running to some 50 pages. In the merits hearing the Employment Tribunal dismissed the Claimant's claims of discrimination on the grounds of race and disability, unfair dismissal and also breach of contract. His Honour Judge Peter Clark made two orders under rule 3(7) in relation to Notices of Appeal on the question of liability. He also made directions under rule 3(7) in relation to allegations of bias on the part of the Employment Tribunal finding that they had no merit.

[2]The hearing took place on 9 September 2009, in which the Claimant was ordered to pay the Respondent's costs. I should say at once that there has been an issue as to whether there in fact was a hearing in relation to the order for costs. We were told by the Claimant today that there was no hearing. She never addressed the Tribunal and there was simply written submissions. However on questioning from us, she did accept that submissions were made by Ms Palmer and we are satisfied there was a hearing. We are also satisfied, based upon Ms Palmer's recollection, that the Claimant did address the Tribunal. Indeed having seen the Claimant today and also when I considered her application under rule 3(10), she is not the sort of person who would sit quietly and not make submissions if she had the opportunity to do so. We do of course accept that there was no evidence and so no cross-examination.

[3]The Claimant sought to appeal against the order for costs. It was initially rejected by His Honour Judge McMullen QC. I came to hear under rule 3(10) the Claimant's application in relation to both liability and costs. I allowed part of the costs appeal to go to a full hearing which we have dealt with today. I gave a detailed judgment, I believe on 25 March 2010, so I need not repeat the matters that I have set out in the earlier judgment.

[4]I limited the appeal to the issue of costs only in so far as the Claimant alleged that the Employment Tribunal had misunderstood the evidence relating to effectively the false imprisonment of a private investigator, Mr Grove, or alternatively failed to give sufficient explanation as to why his evidence was rejected (see the order at page 159 of the core bundle and paragraph 68 of my judgment) which is found at page 185.

[5]I should explain, without going into details, that Mr Grove was a private investigator investigating a possible fraud by the Claimant in claiming benefits from the Respondent to which she was not entitled. He was taken by force into the Claimant's property, detained against his will and threatened with a machete and possibly a knife. We believe that the Claimant's husband was convicted of an offence in relation to this and sentenced to 5 months imprisonment.

[6]During the course of disciplinary proceedings against the Claimant which did not only relate to this matter, the Respondent concluded, contrary to the Claimant's assertions that she had participated in the wrongful detention of Mr Grove and had questioned him. This was regarded as gross misconduct and she was dismissed.

[7]She was criticised by the Employment Tribunal for participating in that episode. She denied to the Employment Tribunal that she had done any more than arrive at the very end of Mr Grove's detention and Mr Grove was then released. The Employment Tribunal, as did the Respondent, did not accept her evidence and disbelieved her.

[8]The Notice of Appeal in this case seeks to re-open a number of matters where the appeal has been dismissed under rule 3(10). I do not propose to go through all those matters which can be found, for example in paragraphs 5, 8 and 9, 12, 13, 15, 16 and 17 of the Claimant's skeleton argument. I shall concentrate on the issues that are properly before this Appeal Tribunal.

[9]The Claimant has made a number of submissions. Firstly, there was no evidence to support the finding that she questioned Mr Grove at length as the Employment Tribunal found. Secondly, she submits the incident was irrelevant to the case before the Employment Tribunal. Thirdly, the Employment Tribunal failed to explain why it rejected the "evidence" of Mr Grove. She then submitted that there was no relation between the case in relation to Mr Grove and the decision to order costs. There is also a potential application for costs on the part of the Respondent.

[10]Dealing first with the claim that there was no evidence to support the finding the Claimant questioned Mr Grove at length, it has to be said that the Employment Tribunal had before it part only of a witness statement prepared for the criminal proceedings by Mr Grove and also an extract from a note prepared by the Crown Prosecution Service (see pages 42 and 43 of the supplemental bundle). It has to be said that this documentation corroborates (if that is the correct term), the evidence of the Claimant that she did not participate in the detention and questioning of Mr Grove. However, it must be noted that we do not have the full witness statement of Mr Grove although we understand the Respondent has asked for it. Mr Grove was not called to give evidence and was not cross-examined and the purpose of the police and the Crown Prosecution Service in preparing witness statements for use and prosecution of Mr Clarke and Mrs Clarke's daughter is, of course, not the same as the preparation of witness statements for an allegation against Mrs Clarke herself. However, it also has to be said that if the Crown Prosecution Service and the police had considered there was evidence of the participation of Mrs Clarke she may well have been charged herself.

[11]Against that the Employment Tribunal had evidence before it of the Claimant's participation. In this regard we refer to paragraph 3, page 52 of the core bundle, the decision of the Employment Tribunal on costs. The Employment Tribunal had not made findings as to the participation of the Claimant in the detention of Mr Grove at the merits hearing. Perhaps this was because the police and the prosecution had yet to take place. After the prosecution the cost application was made and both parties invited the Employment Tribunal to make finding as to the Claimant's participation.

[12]The Employment Tribunal clearly had before it the two documents to which I have referred relating to the criminal proceedings, that is the outline of the case prepared by the Crown Prosecution Service and the extract from Mr Grove's witness statement. But it also had additional material. There has been a vigorous dispute on the part of Mrs Clarke as to what that material was. It is quite clear that a number of telephone conversations between Mrs Clarke and the Respondent were tape recorded. It is equally clear and it is clearly unsatisfactory that a number of those tapes have gone missing and Mrs Clarke is entitled to criticise the Respondent for this, particularly as it failed apparently to comply with certain orders. She is also entitled to criticise the police who appear to have lost or disposed of one of the tapes. But the fact remains that something like 28 tracks of a tape remained and they have all been transcribed.

[13]One of the difficulties that we have had in today's hearing relates to what seems to us to have been a file note prepared by the Respondent from notes that were made by a Miss Sian Yates. It also refers to a number of telephone calls that were recorded in respect of some of which the tapes remain and some of which they do not. Mrs Clarke insisted that this was a transcript and it was treated as a transcript. It is manifest, on the face of the document, that it is not a transcript, it does not purport to be a transcript. It is headed "Excerpt of File Notes from Conversations with CC" that is Cherry Clarke. Both Miss Switzer and I were quite unable to persuade the Claimant that this was not a transcript but she insisted that it was.

[14]We also accept from Ms Palmer, and it is again apparent from the decision of the Employment Tribunal, that the Employment Tribunal had available to it not simply a transcript of one conversation but it had available to it transcripts of a number of conversations upon which it relied. The Employment Tribunal refer to this matter in the merits decision at paragraphs 12.8 and 12.9 which read:

"12.8 There were two lengthy telephone calls between the claimant and Sian Yates of the respondents on 14 March 2005 and 18 March 2005. Sian Yates made comprehensive notes of the telephone conversations. Furthermore, Sian Yates' understanding of the telephone conversations was put into writing in a letter to the claimant dated 18 March 2005, the contents of which the claimant was asked to 'confirm'. 12.9 The tribunal has had the opportunity to listen to comprehensive recordings of those telephone conversations and has before it full transcripts thereof. Whilst it is clear that Sian Yates made comprehensive notes she repeatedly (probably as many as 29 times in all) made it clear that the respondents could not accept the telephone call as notification of a grievance and that the claimant must put her grievance in writing. Sian Yates also offered to assist the claimant in this regard. In the letter of 18 March 2005 Sian Yates set out her understanding of the claimant's grievance (to the effect that in their dealings with her the respondents were motivated by race discrimination) but again made it quite clear in the letter that they could only take action on the grievance if they had something in writing from the claimant. They would have been satisfied if the claimant had merely signed a copy of that letter and returned it confirming that it was an accurate statement of her grievance. The claimant could easily have done this but she declined to do so."

[15]The Claimant maintains that the document, whether it be the collection of file notes or whether it be a transcript that has been prepared of some of the conversations is not accurate. This was not a point that she took before the Employment Tribunal and in my opinion and that of my colleagues, those documents are accurate. The transcript is a proper transcript and the file notes are a collection of file notes prepared by Miss Yates who confirmed them when she gave evidence. The Claimant said we should not look at these documents. They have been referred to in various skeleton arguments prepared by her. They were clearly before the Employment Tribunal so we have of course looked at them.

[16]Counsel (Ms Beale), also prepared notes of evidence given by the Claimant. We were disappointed to see that the Claimant was not prepared to accept Ms Palmer's notes and indeed insisted that they had been fabricated. We reject that suggestion as strongly as we are able; it is a most unfortunate allegation to have made against a respectable member of the Bar and one, in our opinion, for which there was no justification at all.

[17]It is quite clear and we need not go through all the details of the transcript, firstly, that the Claimant had a great deal of information that came from Mr Grove, which is entirely consistent with the Claimant having participated in or being present at the questioning. She maintained that was not the case and she had been given that information by her husband. Two points to be noted are, firstly, that her husband was arrested within a few hours of the incident. Secondly, that during the course of one of the conversations, she said in terms that Mr Grove had told her, and in this passage Sian Yates said:

"SY: Right, and I need to find out what that was, and I also need to find out what he has done, or hasn't done, as I said before. I need to get further information from him - C: Yeah [says the Claimant] but you've got your paperwork, what he's supposed to have done. He told me that you said to ... SY: Mrs Clark what he's told you and what he's you know, done or not done, we can't, I can't explain that until I get a report..."

Then it goes on. But the fact of the matter is that we have listened to the tape that the Claimant said in terms this is what Mr Grove had told her and it fits in with the other information she gave. We have noted that there was evidence to support the suggestion that the Claimant had not participated but there was also evidence to support the proposition that she had participated in the imprisonment.

[18]The Employment Tribunal was entitled, in those circumstances, to come to the conclusion that bearing in mind Mr Grove had not been called, that as it said in paragraph 3 of its costs decision, having considered the documents relating to the criminal proceedings, the fact that she admitted being present to the Employment Tribunal, took no steps to bring the incident to an end, and on the basis of the telephone conversations with Sian Yates the Employment Tribunal found that she had taken the opportunity to question Mr Grove. In those circumstances, it seems to us that the Employment Tribunal was perfectly entitled to conclude, as it did, that she had in fact, contrary to her case, been present at the time when Mr Grove was being detained.

[19]In those circumstances it seems to us that the conclusion of the Employment Tribunal that the Claimant had been guilty of misconduct in the proceedings was perfectly justified.

[20]The Employment Tribunal, and we now refer to paragraph 4 of the costs decision, said:

"In bringing this claim the claimant was misconceived from the outset in two respects, so far as the unfair dismissal claim is concerned the claim was predicated on a lie. The Claimant has insisted throughout the proceedings from the claim form right up until her final submissions at the end of the 15 day trial that she was not present on 10 March. She patently was; and her denial of being present was untrue. Furthermore, she knew from the outset that it was untrue. That lie was crucial because if she was there and participated to any extent and on the balance of probabilities we find that she then she would know that she was guilty of gross misconduct and that her claim for unfair dismissal had no prospect at all of success."

The Employment Tribunal then goes on to say that her claim on the merits in relation to race and disability discrimination was also misconceived, but that is not a matter before us today.

[21]I am conscious of the fact that this is an extempore judgment and it may be there are matters that we have not dealt with as fully as we might but we consider that we have dealt with the salient points and explained why, in our opinion, the Employment Tribunal was entitled to conclude as it did.