Appeal No.	 EAT/847/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 November 1999

Before
HIS HONOUR JUDGE WILKIE
MR J C SHRIGLEY
MR G H WRIGHT MBE

MRS S B TOON	APPELLANT

JERSEY EUROPEAN AIRWAYS	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR NICHOLAS D HART
(Solicitor)
Messrs Slee and Blackwell
1 Cross Street
Barnstaple Devon
EX31 8DH	

		JUDGE WILKIE:		This is an appeal by Mrs Toon against a decision of the Employment Tribunal sitting at Exeter which dismissed her complaints of sex discrimination and unfair dismissal.  The unfair dismissal was alleged to be constructive dismissal she having resigned her employment.

1.	We have been assisted by Mr Hart this morning both in terms of his notice of appeal, his skeleton argument and his oral arguments before us.  In essence he takes two points, the first is that in the course of their decision the tribunal described her complaint about a role she was required to perform as “demeaning and menial” and that the tribunal rejected that view.  He says that was the wrong test. In fact what the Tribunal were there doing was taking her description of that of which she complained as a detriment in paragraph 17 of their decision. Therefore it is clear to us that there is no reasonably arguable case on this point in the face of that plain statement in paragraph 17.  They were not doing anything other than addressing the question of detriment, albeit using her subjective language in their description of it.  

2.	The second complaint is that the tribunal acted perversely in looking for a comparator for the purposes of the sex discrimination claim, namely a male person having the mix of skills of a secretary, that is to say an ability to perform secretarial functions an appreciation of the need for confidentiality at a board meeting and having routinely performed certain “meet and greet” functions involving the provision of drinks and light refreshments.   

3.	In our judgement, this is simply an attack on decisions of fact which it was open to the tribunal to reach on the evidence before it.  In the paragraph in which they deal with this, paragraph 18, they make findings of fact as to what the requirements were for practical skills of a secretary at the board meetings.  Mr Hart accepts that these are accurate findings of fact and, essentially, what he complains of is the conclusion that the tribunal drew from those findings of fact that there was a requirement for two employees at the meeting who had secretarial expertise.  In our judgement there is absolutely nothing in that.  Whilst it may have been open to the employer to have called in that expertise from time to time, that was for the employer to decide.  It is not something which can be said to be found perverse in its argument merely because the Tribunal failed to find in Mr Hart’s favour

4.	The other matter which he attacks is the way in which the Tribunal described the requirement for an ability to keep confidentiality.  He latched onto an answer which he got from the managing director where it was indicated that the managing director would expect a warehouseman who stumbled across a confidential document to respect the confidentiality of that document.  In our judgement that is an entirely different situation from someone who routinely attends meetings, or deals with confidential matters and has by then training and/or experience the judgement to know which matters are confidential and which matters are not.  In our judgement the way in which the tribunal deal with that and, in particular, the question of the possibility that a temporary secretary might also fulfil the role is not one with which we can find fault and certainly it is a long way from being perverse.  

5.	Therefore, it is in essence a perversity challenge.  We find that there is no reasonably arguable case that the way in which this tribunal addressed these questions was perverse.  It follows from what we have said, that there is nothing in law or on a perversity basis which could successfully challenge the conclusion of this tribunal.  What she was required to do fell within the four corners of her contractual requirements which included a catchall requirement that she should she perform any other duties as may be required by the training manager.  Of course, that does not give the training manager carte blanche to require her to do anything.  We note that it was part and parcel of her “meet and greet” function to provide refreshments for various categories of person and it strikes us that the tribunal’s description of what she was required to do at the board meetings is little more than a marginal extension of that.  This was a conclusion to which this tribunal was entitled to come on the evidence. There was no error of law.  Therefore, we conclude that upon none of the bases upon which this appeal has been argued is there any reasonably arguable case to go to a full hearing and therefore we dismiss this appeal at this stage.