Appeal No.	 EAT/731/99 & EAT/732/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 October 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR W MORRIS
MR R N STRAKER

EAT/731/99
MS R SUNLEY	APPELLANT

UNIVERSITY OF LEICESTER	RESPONDENT

EAT/732/99
UNIVERSITY OF LEICESTER	APPELLANT

MS R SUNLEY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For Ms Sunley	MR P THORNTON
(of Counsel)
ELAAS	
For the University of Leicester	MS J EADY
(of Counsel)
Messrs Ironsides
Solicitors
Macaulay House
10 Friar Lane
Leicester
LE1 5QD	

	JUDGE PETER CLARK:	

1.	Three issues initially arose for determination in these two appeals, which in turn arise from the decision of an Employment Tribunal sitting at Leicester over 12 days in March 1999, that decision having been promulgated with extended reasons on 22nd April 1999, namely:

(1)	whether we should make a restricted reporting order [“RRO”] in these cases;
(2)	whether the applicant before the Employment Tribunal has raised any arguable point of law to go forward to a full appeal hearing in her appeal (EAT/731/99) against that part of the tribunal’s decision which dismissed her complaint of sex discrimination against the University [“the merits appeal”];
(3)	whether the University has raised any arguable point of law in its appeal (EAT/732/99) against the costs order made by the Employment Tribunal [“the Costs appeal”].

(1) 	RRO
In an earlier appeal by the University in this case, brought against an order made by a Chairman on 24th November 1998, revoking in part an earlier RRO made on 23rd January 1998, the issue was whether an RRO could be made by the Employment Tribunal in respect of the identity of the respondent University. We decided that it could not. [1999] IRLR 353.

On 2nd July solicitors for the University applied for an RRO to be made by the EAT in the applicant’s appeal in respect of four individuals, including the applicant, in respect of whom RRO’s were made by the Employment Tribunal. That application was opposed by those then representing the applicant. A direction was given on behalf of the Registrar that the application be renewed at this hearing.

Initially Ms Eady renewed that application in respect of two of the individuals, the applicant and a witness called by the University and referred to in the Employment Tribunal’s decision and reasons as ‘B’. We reminded Ms Eady of the judgment of Morison J in Chessington World of Adventures Ltd v Reed [1998] IRLR 56. For the purposes of the first issue we treated the matter inter partes, and Mr Thornton, who appears on behalf of the applicant in the merits appeal under the ELAAS pro bono scheme, had not himself received prior notice of this application. In these circumstances we stood the case out for Counsel to consider their position.

When the hearing was resumed Ms Eady withdrew her application. In these circumstances no RRO was made. It follows that, in the interests of judicial proceedings being conducted in public, no grounds exist for continuing to preserve anonymity. We shall therefore hereafter refer to individuals by name.

(2)	Merits Appeal
It was the applicant, Ms Sunley’s case that during her employment as a lecturer at the University she was sexually harassed by a senior member of the staff, Professor Benyon, on a number of occasions and that on one occasion he raped her. She claimed that she reported Professor Benyon’s behaviour to the University authorities, but nothing was done about her complaints.

Professor Benyon’s evidence was that he and the applicant had a consensual sexual relationship. He had never harassed her. The University’s witnesses denied that the applicant had ever complained of sexual harassment by Professor Benyon prior to the termination of her employment.

Having heard all the evidence over 12 days the Employment Tribunal emphatically preferred the respondent’s version of events and rejected that of the applicant. The claim was dismissed.

In this appeal Mr Thornton pins his colours firmly to the mast of Bingham LJ’s judgment in Meek v Birmingham District Council [1987] IRLR 250 251, on the adequacy of an Employment Tribunal’s reasons. He submits that this tribunal’s reasons do not tell the parties why they have won or why they have lost. He has taken us to the voluminous further and better particulars of the Originating Application and the detailed respondent’s amended Notice of Appearance in reply, detailing a catalogue of alleged incidents of sexual harassment by Professor Benyon, including the allegation of rape on one occasion and the applicant’s complaints about his behaviour. The respondent’s case, as we have indicated, was that no harassment took place: the relationship was consensual. The applicant did not complain about Professor Benyon prior to termination of her employment.

In these circumstances, submits Mr Thornton, it was incumbent on the Employment Tribunal to deal specifically with and make findings on most, if not all of the applicant’s allegations. They did not do so. The reasons were inadequate. On this basis the appeal should proceed to a full appeal hearing and, if successful, the order sought will be a remission of the matter to a fresh Employment Tribunal for a complete rehearing.

We firmly reject that submission. It is pellucidly clear from the Employment Tribunal’s reasons why the applicant lost. Her account, supported by witnesses whom she called, was rejected. The respondent’s evidence was accepted. There was no sexual harassment; she did not complain until after she left.

In these circumstances we shall dismiss her appeal.

(3)	The Costs appeal
Following the announcement of the Employment Tribunal’s decision on liability an application was made by Ms Eady on behalf of the University for an order for costs against the applicant. She contended that the applicant’s case had been pursued unreasonably within the meaning of Rule 12(1) of the Employment Tribunal Rules of Procedure.

Until shortly before an Employment Tribunal hearing was due to commence on 1st June 1998 the applicant had been represented by her trade union, Association of University Teachers who had, in turn, instructed solicitors on her behalf. Support was then withdrawn and never resumed by the union.

Ms Eady submitted below that when considering an order for costs the tribunal ought to take into account the means of the Union as well as those of the applicant herself.

The tribunal rejected that submission. They found that the applicant had behaved unreasonably but, taking into account only her modest means, they limited the order for costs against her to £500. Ms Eady tells us that the total costs incurred by University in defending the case and put before the Employment Tribunal were £59,237.60; the costs of two junior lecturers for a year. Her application below was limited, so far as the involvement of the Union was concerned, to a period between the Union’s solicitors receiving a statement from a Ms Westwood, whom the applicant had asked them to interview, to the effect that the applicant had admitted to her that her relationship with Professor Benyon was consensual (that was on 2nd April 1998) until the Union withdrew support on about 29th May 1998, a total figure from the University’s side of £11,641.90.

In this appeal Ms Eady seeks to argue that the tribunal erred in not taking into account the Union's means when assessing costs. She has referred us to the thorough and careful judgment of Lindsay J in Benyon v Scadden {EAT/1269/98 – 14th June 1999 – Unreported), in which his lordship reviewed not only the cases on costs in this jurisdiction, but observations made in other jurisdictions, before dismissing the appeal on the basis that there were no grounds for interfering with the tribunal’s exercise of its discretion in that case.

We accept that circumstances may arise where a funding body’s means can properly be taken into account by an Employment Tribunal when considering an order for costs, for example, where a union has failed properly to consider the merits of a case before pursuing it to a hearing Carr v Allen-Bradley Electronics [1980] ICR 603, and/or where the union had a collateral purpose in pursuing the claim, see Benyon’s case, where the union’s purpose was to seek recognition from the employer, or where the union, having given the applicants an indemnity against costs, pursued a test action on behalf of its members generally, Dorney v Chippenham College (EAT/10/97 – 28th May 1997 – unreported).

However, in the present case the union took advice from Counsel; as a result a view was reached that the claim had a less than even prospect of success and support was then withdrawn.

It seems to us that the tribunal was entitled to conclude that the union had acted properly in this case, bearing in mind the difficulty of predicting the outcome of a complaint such as this. We do not accept Ms Eady’s submission that because a witness statement was obtained from one, of what turned out to be very many witnesses, which gave an account inconsistent with their member’s case, that the Union should thereupon withdraw funding without more.

In all the circumstances we have concluded that there are no grounds in law for interfering with this tribunal’s exercise of its discretion on the question of costs.

Accordingly, the Costs appeal is also dismissed.

[After applications by Mr Thornton for leave to appeal to the Court of Appeal]

2.	It would seem odd if we found that there was no arguable point of law to go forward to a full hearing here and thought that there was an arguable matter to go to the Court of Appeal. Leave is refused.