Appeal No.	 EAT/729/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 October 1999
	Judgment delivered
	On 28th October 1999

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
MISS C HOLROYD
MR P SMITH

(1) R M BROUDIE (2) R M BROUDIE & CO	APPELLANTS

MS SHEENA KHAN	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR A NICOL QC
Messrs R M Broudie & Co
Solicitors
1-3 Sir Thomas Street
Liverpool
L1 8BW	
For the Respondent	MR J HAND QC
Messrs Shamman Nicholls
Solicitors
St John's Court
78 Gartside Street
Manchester
M3 3EL	

	MR JUSTICE LINDSAY (PRESIDENT):		

1.	On 1st July 1996 the Employment Tribunal received an IT1 form from Ms Sheena Khan. It claimed:

“1.	Sexual harassment i.e. sex discrimination
2.	Victimisation contrary to Sex Discrimination Act 1975.
3.	Breach of Contract
4.	Unfair Dismissal”

	against both her erstwhile employer, R M Broudie & Co, a partnership of solicitors, as second respondent and, as first respondent, one of the partners in that firm, Mr R M Broudie.

2.	Ms Khan is herself a solicitor.

3.	After a four day hearing in January 1997 the Employment Tribunal’s decision was sent to the parties on 3rd April 1997. The claims for unfair dismissal and breach of contract were not pursued. The tribunal’s unanimous decision was that both the respondent firm and the individual respondent had discriminated against Ms Khan on the ground of her sex. The question of remedies was adjourned.

4.	We have before us a re-amended Notice of Appeal by both that firm and that individual. However, before we turn to that appeal there is a supervening matter best dealt with first.

5.	As to this first matter, we emphasise that we are not to be thought to be finding facts or indicating what facts are or might be proper to be found. We have had to take a provisional view of the material before us in order to deal with the arguments addressed to us, but, so far as concerns fact, as we shall explain, it will be open to the Employment Tribunal to come to such findings as are justified by the evidence it hears. With that caveat, we give our provisional view.

6.	It is that on Thursday, 23rd January 1997, the third day of the hearing before the tribunal, during the cross-examination of a Miss Navarro giving evidence on behalf of the employer, an incident occurred, one very likely not to have been detected by the tribunal and the significance of which the tribunal would not have been able even to guess at on the information it had at the time, which may have amounted to scandalous conduct of the proceedings on behalf of Ms Khan. The nature of the incident was such that a full understanding of it could not be expected to have been reached during the hearing, and, indeed, it is only very recently and with the assistance of further orders of the EAT that the evidence in relation to it has become complete on the employer’s side.

7.	The appellants before us, the firm of solicitors and Mr Broudie, wish to mount an application under Rule 13(2)(e) of the Employment Tribunal Rules for the striking out of Ms Khan’s IT1 on the ground of the alleged scandalous conduct. On behalf of those appellants, Mr Andrew Nicol QC invited us to hear the application for such striking out. We declined that invitation. It seemed to us that Ms Khan could very well properly wish to be given the opportunity to give oral evidence or fresh written evidence to answer the appellants’ complaint.

8.	On Ms Khan’s behalf Mr John Hand QC urged that she did wish to have time and opportunity to consider her position in relation to the most recent evidence and that such consideration might lead to her choosing to give further oral or written evidence.

9.	We do not see ourselves as a convenient body for the hearing of oral evidence and, further, were we to hear the application under Rule 13 we would effectively deny the loser one tier of appeal. Accordingly, we decline to hear any application under the Rule. It is instead to be heard by the same tribunal who heard the matter in January 1997.

10.	That being so, the logical position as to the substantive appeal appeared to be that we should postpone it lest the position might arise that we were engaged in the hearing of an appeal in respect of an IT1 that was later struck out. Indeed, as it could be that the Employment Tribunal, learning in full of the incident to which we have referred and reflecting on its possible impact, for example, on the credibility of the evidence that it heard, might wish, even if not striking out Ms Khan’s IT1, at least to conclude upon it otherwise than the tribunal had, there could thus be a case for setting aside the tribunal’s decision and remitting the matter so that the same Employment Tribunal could hear the Rule 13 application and at the same time hear afresh the substantive case to such extent as that tribunal might think fit. However, both sides before us urged us to the contrary.

11.	As, at some expense and after earlier delays, both parties had prepared and were ready to argue the substantive appeal, they pressed that we should hear it here and now, notwithstanding the possible procedural oddity that the Employment Tribunal might later strike out the IT1. Nor did any such setting aside of the existing decision and a consequential remission afresh commend itself to either side. Accordingly, recognising the force of the practicalities of the case, we proceeded to hear the appeal, although we must make the comment that when it hears the Rule 13 application the Employment Tribunal need not feel circumscribed in any way either by the fact that we have heard the substantive appeal or by our conclusion upon it. Moreover, if the tribunal, upon hearing the Rule 13 application, is of a view that in the light of the new material thus coming to its attention it would wish to amend its conclusion on the body of the case, then if that is procedurally open to it, the tribunal is not to be fettered in any way by the fact that there has been an appeal, and a result arrived at upon that appeal, in relation to the conclusion which the tribunal promulgated on 3rd April 1997.

12.	Lastly before we get to the substantive appeal, it seems to us appropriate firstly, that the Rule 13 application should be formally made and the evidence in support of it served and that there should be a directions hearing at the Employment Tribunal prior to the hearing of that Rule 13 application. The matters to be asserted are very serious and it is right that Ms Khan should be told in good time precisely what is alleged and what evidence is to be relied upon. So also the employer’s side is entitled to know in advance of the hearing what her answer is to be. A directions hearing after the formal lodging of a Rule 13 application is thus appropriate in our view. The directions hearing is to be applied for not later than 14 days from the appellants’ receipt of the transcript of this judgment. Although it would be desirable, it is not in our view, necessary that the directions hearing should be before the very same panel of three as heard the case in January 1997.

13.	After that long excursus, we now turn to the appeal.

14.	Mr Nicol submits that the tribunal’s decision was perverse in four chief respects. Mr Hand thus reminds us of the familiar dicta in Retarded Children’s Aid Society Ltd v Day [1978] ICR 437 CA at 444 and in UCATT v Brain [1981] ICR 542 CA at 550 that, respectively, the EAT is not to go through the tribunal’s decision with a fine toothcomb searching for some point of law where it feels it might have come to a different decision than had the tribunal below and that the purpose of a tribunal’s extended reasons is to tell the parties in broad terms why they lose or why they win and that detailed analysis is therefore inappropriate. We bear those dicta in mind, as also the many cases illustrating the difficulty in a perversity argument, in particular, that it does not avail an appellant to say that there was insufficient evidence for a conclusion where there was at least some evidence for it. Its sufficiency is for the tribunal to adjudge, it having had the advantage, which no appellate body has, of receiving all the evidence and hearing and seeing all the witnesses who give oral evidence.

15.	The four chief respects in which the tribunal was perverse, says Mr Nicol, are concerned with topics which may be given the respective headings of (1) “the 9.30 a.m. call on the Sunday”, (2) “The role of Mr Thompson” and, more generally, (3) “Credibility” and lastly (4) “Internal conflict”. We shall take each in turn:

(1)	The 9.30 a.m. call on the Sunday
	Mr Broudie telephoned Ms Khan at her home on the morning of Sunday, 16th June 1996 at 9.30 a.m.. Ms Khan was, in a sense, on duty at that time under a system which the firm had for individual employees being on call in connection with the firm’s business. Mr Broudie’s evidence as to the call was accepted, but the tribunal concluded: -

“The matters that [Mr Broudie] wished to discuss with [Ms Khan] had nothing to do with work, were purely personal and related to his jealousy and, what is more [Ms Khan] knew that.”

	Mr Broudie’s evidence had been as to what he had said to Ms Khan in the call, which was short because Ms Khan had put the phone down. The tribunal’s conclusion, be it noted, was as to a different subject, namely, what Mr Broudie had wished to discuss; there was no necessary inconsistency between accepting Mr Broudie’s evidence on the one hand and yet concluding as the tribunal did. Moreover, there was material from which the tribunal’s inference as to Mr Broudie’s wishes could be drawn. He had wanted to have a close personal relationship with the employee, Ms Khan. The tribunal held

“It must have been “He had paid her a good deal of attention” and, a little later, plain to [Ms Khan] that he was interested in her not merely as an employee.”

	On the evening of Friday 14th June, and into the early hours of Saturday the 15th, he was socialising with his work colleagues. He may have been advised by Ms Navarro, another employee, that Ms Khan did not want to get into any relationship at the time because she was still getting over the break up of an earlier one. Much the same message seems to have been given to him directly by Ms Khan that:

“She did not wish to be near a man.”

	However, when, on the Friday evening, Mr Broudie gave a lift in his car to Ms Khan and others, he saw that she, in the back of his car, had had her arm and part of her body over another man, Gary; later she sat on Gary’s lap. Mr Broudie’s evidence was (and here we judge from the Chairman’s notes):

“She’d chosen to flirt in my car – that affected me and annoyed me. I had taken what she had said at face value … I had seen her on his lap.”

	Mr Broudie was annoyed because, having believed her when she said she did not wish to be near a man, her conduct was now suggesting otherwise. He felt betrayed. In that state of mind Mr Broudie had gone round to Ms Khan’s flat at 4 a.m. on the morning of Saturday the 15th. He complained to her that whilst in his car she had flirted with another man. The tribunal held:

“He went on “I also told her that I thought it was disrespectful of her to have flirted with Gary in my car and that I felt she had misled me and [had] been dishonest with me, whereas I had been more than considerate to her.””

	Later on the Saturday morning Mr Broudie telephoned Ms Khan at her home. She was not in. He left a message asking her to return his call, which she did not do. Then came the 9.30 a.m. call on the Sunday morning. There is no doubt but that Mr Broudie first raised a subject that, albeit on the very periphery, could be said to be work-related, namely, why had Ms Khan told Ms Navarro’s mother (as Ms Navarro’s mother had told him was the case) that it was he, Mr Broudie, who was the person to ask as to the reason for an argument on the evening of the Friday night and Saturday morning that had led to Ms Navarro’s being in hospital. However, the tribunal had held that Mr Broudie was: 

“… irrationally upset by [Ms Khan’s] alleged flirtation with the man Gary.”

	It cannot be said that they had no material for that conclusion. Mr Broudie’s own evidence described him as being overwrought. Mr Broudie had sought to explain the 9.30 a.m. call as being, so to speak, wholly work-related. The tribunal’s reaction to that is unsurprising; it held:

“It was in our view looking far too superficially at the incident of [Ms Khan] putting the phone down to say, as [Mr Broudie] did, that the applicant was on call and therefore had an obligation to speak to him.”

	In our judgment and even recognising that the tribunal took and were entitled to take a very poor view of Ms Khan’s own evidence, we cannot say that the tribunal’s inference – namely that what Mr Broudie had wished to discuss in this 9.30 a.m. call were matters which:

“…had nothing to do with work, were purely personal and related to his jealousy …” -

	was unfounded. It was that personal side of things that had affected him and had annoyed him, and on his own evidence, as we have mentioned, he was overwrought. In all the circumstances, it would have been quite remarkable if it was that personal side of things which he had not wished to discuss. This first head of alleged perversity fails.

(2)	The role of Mr Thompson
	Mr Thompson was Mr Broudie’s partner in the firm. He was party to Ms Khan’s dismissal. This area requires one to turn to paragraph 6 of the tribunal’s reasons, where they say:

“… The decision to dismiss the applicant on 16 June never in fact altered, although it was not confirmed or further articulated, until the partners met later in the week. They both agreed on Sunday 16, that that is what should happen. It was submitted on the respondents’ behalf that the dismissal of the applicant could not possibly have anything to do with the hoped-for relationship between her and the first respondent for the reason that Mr Thompson was quite unaware of the allegation concerning the man Gary and yet, for his own reasons, decided that dismissal was appropriate. The Tribunal rejected that analysis as extremely superficial. Mr Thompson had been absent for six weeks and knew what he knew of the weekend’s incidents only from the first respondent as at Sunday 16 June. Most importantly, he was not told about the incident involving the man Gary. Had he known of that incident, he might have had greater insight into what had so exercised his partner, the first respondent, to the point of deciding that day to dismiss the applicant. In the circumstances known to him Mr Thompson might reasonably have concluded that there was little more to it beyond the well known history of dissatisfaction and the further allegation that the applicant, whilst on duty, had failed unreasonably to communicate with the first respondent. There was of course very much more to it than that, and if Mr Thompson had known of those other matters he might well have put into a different context the applicant’s refusal to speak on the telephone with the first respondent and might have concluded that that refusal was rather less unreasonable than the first respondent thought. The history of dissatisfaction with the applicant’s performance stretched over a number of months and even the very serious incident of deliberately entering an incorrect endorsement on a file in March had attracted no serious disciplinary consequences. There was no newly discovered serious failing or misconduct on the part of the applicant which could begin to explain the first respondent’s decision on 16 June to dismiss the applicant and to telephone his partner then and there to announce that decision. It is quite impossible to divorce that conclusion in the first respondent’s mind from the events of the previous 36 hours which, to use the first respondent’s own word, had made him overwrought. The Tribunal was inescapably driven to the conclusion that the decision to dismiss the applicant was closely linked to her refusal to embark upon a relationship with the first respondent, to her behaviour with another man that weekend and to the first respondent’s resulting jealously. It goes without saying that the applicant was perfectly entitled so to refuse and so to behave if she chose. The first and second respondent were not entitled to dismiss her, even in part, because of that refusal and that behaviour. That dismissal amounted to discrimination against the applicant, in that on the ground of her sex she was treated less favourably than would a man have been. Putting the matter for a moment another way, we have little doubt that if the applicant had responded differently to the first respondent’s telephone call on Sunday 15 and in a way favourable to him, then the applicant would not have been dismissed when she was.”

	The appellants’ argument in this area overstates the tribunal’s view. It did not consider that Mr Thompson would not have endorsed the decision if he had known of the ‘Gary’ incident, but only that he might have acted differently had he known of it. Indeed, Mr Thompson had said in evidence that Mr Broudie’s proposed relationship with Ms Khan was a complete surprise to him. Had Mr Thompson known of Mr Broudie’s hopes for a relationship with Ms Khan and of the ‘Gary’ incident as a cause of his partner of being annoyed with her, it seems to us not unreasonable for the tribunal to have considered that he, as a solicitor whom the tribunal had no reason to think imprudent, might have reacted as would have done a prudent solicitor to the possibility that his partner was being motivated in a way that could lead their firm into trouble. Mr Nicol describes the tribunal’s view as pure speculation on the ground that Mr Thompson was not in terms asked how he would have reacted had he known all that there was to know. But it is not, of course, the case that a tribunal can decide cases exclusively upon the basis of express answers given to particular questions. A broad range of inferences is open to the tribunal as, it is said, the industrial jury. We would describe the tribunal’s view not as speculation but as legitimate inference from the primary facts which it had found. Moreover, Mr Nicol’s argument is on weak ground, in our view, when he goes on to say that there was good reason to believe that Mr Thompson would have agreed to dismiss even if he had known everything, “because of the other ample grounds for dismissing” Ms Khan. As the passage as we have just cited indicates, earlier shortcomings had not met with any dismissal and there was no newly discovered failing on Ms Khan’s part which arose to convince afresh Mr Thompson that she should be dismissed. We are unable to describe the tribunal as having been perverse in this part of their decision.

(3)	Credibility
	The tribunal as to Ms Khan’s and Mr Broudie’s credibility and honesty said this in their paragraph 4(vii):

“… The Tribunal found that the applicant’s Curriculum Vitae was seriously misleading, in that it mis-stated the institution of higher education attended by the applicant, the class of her degree and all but one of her O and A level passes, all to the applicant’s advantage. The applicant claimed that she had never checked her Curriculum Vitae and the mis-statements arose as a result of recklessness on her part. The Tribunal rejected that explanation and believed that the mis-statements were deliberate. We referred above to an occasion on which the applicant admitted that the endorsement she made on a file was a lie. On a further, subsequently discovered, occasion the applicant accepted that she had altered an endorsement on a file relating to a costs order made by a court, in order to cover up her own error. The applicant admitted in evidence that she did occasionally resort to lying in order to get out of difficulties. In the view of the Tribunal, these matters went a long way to undermine the credibility of the applicant in matters of disputed evidence. With regret the Tribunal has to say that where matters of fact were in dispute, it could not accept the evidence of this applicant, a member the solicitors’ profession. By contrast, the evidence of the first respondent on matters of fact was persuasive. …”

	Mr Nicol’s argument here is this. He says that Mr Broudie, learning from Ms Navarro’s mother that Ms Khan had recommended that it was to Mr Broudie that questions about Ms Navarro’s hospitalisation should be directed, was entitled, especially having regard to the history of lies on Ms Khan’s part, to regard Ms Khan’s behaviour as yet another form of dishonesty on her part, yet another reason for dismissing her on the Sunday morning, when, instead of discussing the point, she had simply denied that she had said that to Ms Navarro’s mother and had rung off. Whether Mr Broudie would have been entitled so to regard the matter, is largely irrelevant; more relevant is whether he did so regard it. His comprehensive witness statement, some 34 pages long, does not claim - see especially his paragraph 90 - that he had this point in mind on that Sunday morning. Indeed, to be sure that the case was one of Ms Khan lying, rather than Ms Navarro’s mother having misunderstood the position, he would probably have had to go back to that lady. Nor does he claim to have asserted to Mr Thompson on the Sunday that Ms Khan was lying to him in that respect or that that was the last straw. The Chairman’s Notes of his oral evidence do not show Mr Broudie as asserting that there was some final, inexcusable and unforgivable lie on Ms Khan’s part, rather:

“On Sunday, after she put the telephone down, I decided I should probably dismiss her. Not because she wouldn’t discuss personal matters but because she put the telephone down when I was enquiring.”

	This argument relating to Ms Khan’s credibility or honesty fails.

(4)	Internal conflict
	The timing of any decision to dismiss Ms Khan was important. On Friday 21st June at 4.55 p.m. there was received at the employer’s office a letter from Ms Khan’s solicitors alleging that she had been sexually harassed. If the decision to dismiss was taken after that time and date, it would be vulnerable, rightly or wrongly, to attack as being victimisation of Ms Khan within the provisions of s.4 of the 1975 Act. Ms Khan’s complaint, indeed, included such a claim. If, on the other hand, the dismissal was decided upon earlier than that, then, depending on how much earlier, the question would arise as to whether there had been, by that earlier point, an adequate investigation and adequate procedural steps taken to support a dismissal unrelated to sexual discrimination. The tribunal, needless to say, was fully alive to the importance of time in such a way. It held that the decision to dismiss was made on Sunday, 16th June. It continued:

“7.	It follows from the foregoing that the applicant’s claim that she was victimised by being dismissed in response to her Solicitor’s letter of 21 June must fail. The decision to dismiss her was taken, and never changed, at the latest on Sunday 16, and can therefore not have been caused in any way or to any degree by receipt of that letter.”

	That the decision was taken on 16th, says Mr Nicol, was in conflict with the tribunal’s findings as to the employing partners having had second thoughts, as to Mr Thompson later listening to Ms Khan’s side of things and as to the later consideration given by the partners to her conduct. The partners agreed to meet, held the tribunal, on Friday, 21st June at 5.30 p.m.:

 “to decide what to do about [Ms Khan].”

	Then her solicitor’s letter arrived and:

“The partners met as planned, discussed that letter and decided that the applicant should be dismissed.”

	Mr Nicol correctly points out that it is nowhere said that the post-Sunday-morning steps were disingenuous or a sham and that, given the favourable light in which the tribunal viewed Mr Broudie’s evidence, there was no reason to think that that might have been the case. However, the tribunal’s view was that on the 16th there had been an initial decision to dismiss and that later enquiries and consideration never altered that initial view. There was, so to speak, a decision-nisi made on 16th, a decision that would stand unless adequate reason was later shown to the contrary, which it never was. On that basis, we do not see there to be any internal conflict in the tribunal’s findings. Moreover, it cannot be said that there was no evidence for a view that there was a dismissal decided upon on Sunday, 16th June. Mr Thompson said of Mr Broudie:

 “He had decided on Sunday to dismiss her and I agreed.”

		And later:

“No point in checking the allegations because I had already decided to dismiss.”

		And;

“I agreed with [Mr Broudie] on Sunday that dismissal was right … From Sunday I had in mind to dismiss.”

	Mr Broudie said:

“I decided to dismiss on 16.6 then gave her a chance to explain on 17.6 to be fair.”

	Moreover, as Miss Holroyd pointed out, Mr Broudie’s reply to the sex discrimination questionnaire in the case said, of that Sunday morning:

“I phoned Paul Thompson my partner and told him that I was going to sack Sheena … He agreed with my decision.”

	There are undoubtedly passages of the evidence that could be taken to suggest that the decision to dismiss was made after the 16th but it was for the tribunal to assess the drift of the evidence as a whole and, as our citations indicate, it cannot be said that there was no evidence to support its conclusion that the decision was made on the 16th and was never changed. There is, in our view, no real internal conflict in the tribunal’s decision on that point, nor any perversity in this area. We add that had we held otherwise, that would have offered no immediate relief to the employer’s side as the matter would then have had to be remitted to the tribunal to find whether, the decision not having been on 16th June, it was decided upon before or after Ms Khan’s solicitor’s letter of 21st June.

16.	We believe that we have now dealt with all of the appellants’ arguments. We dismiss the appeal.