Appeal No. EAT/1382/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 June 2000

Before
HIS HONOUR JUDGE J ALTMAN
MR D J JENKINS MBE
MISS S M WILSON

DR J A OVADJE	APPELLANT

DRS BOND, MYERS, HASKELL, LEIGH-COLLIER AND BASS
t/a WESTERN ROAD MEDICAL CENTRE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR O OLATAWURA
(Solicitor)
Abiloye & Co Solicitors
21 - 23 the Broadway
Stratford
London
E15 4BQ	

JUDGE ALTMAN

1	This is an appeal from a decision of the Employment Tribunal sitting at Stratford on 30 September and 1 October 1999 when the Appellants complaint of sexual discrimination and wrongful dismissal were dismissed.  It comes before us today by way of preliminary hearing to determine if there is a point of law which is arguable in full before the Employment Appeal Tribunal.  

2	We are indebted to Mr Olatawura for a very detailed Notice of Appeal and the detailed grounds of appeal.  We have considered them all extensively.  In the course of this judgment we will endeavour to deal with the essential points raised but we wish to emphasis that we have addressed all the arguments set out in the documents before us in reaching our decision.

3	The Appellant began work for the Respondents on 1 October 1998.  The Employment Tribunal found that there was no event of significance until 23 October 1998, that thereafter events took place which the respondents said led to the dismissal of the Appellant on the 7 December 1998.  In his Originating Application the Appellant complained of unfair dismissal, wrongful dismissal and sex discrimination.

4	The matter came before the Employment Tribunal on 9 June 1999 when an investigation took place of an issue of continuity of employment which was resolved against the Appellant so that the claim for unfair dismissal was dismissed, described as “stayed” in the words of the Employment Tribunal.

5	That then left two remaining matters of complaint to be dealt with.  At the same time in June the Employment Tribunal gave some directions for the assistance of the parties and the later Tribunal which included in direction 9.2(ii) an identification of the allegations of sex discrimination alleged by the Appellant.  They were as follows: -

“(a)	the sexual harassment in October 1998 constituted a detriment in respect of which the (Appellant) claims damages, and/or
(b)	Flowing from the Applicant’s rejection of the sexual overtures of Dr Haskell, she made a false complaint (of sexual harassment) against him, which complaint would not have been made but for his gender (or his rejection of her overtures).  That false complaint was pursued through to his dismissal and is itself sex discrimination.”

6	When the matter subsequently came before the Employment Tribunal, in their written reasons they divided the tasks under different headings.  Under the heading of issues they identified the issue in the claim for sex discrimination as follows:-

“The issue of the complaint of sex discrimination is a stark one.  It is Dr Ovadje’s complaint that he was the victim of sexual harassment by Dr Haskell, a partner in the respondent medical practice.  It is said that the sexual harassment was followed by a false allegation that Dr Ovadje had sexually harassed Dr Haskell, an allegation pursued to the termination without notice of the contract between the parties.  The respondent denies the discrimination complaint by asserting that Dr Haskell had been sexually harassed by Dr Ovadje and that it had been justified in terminating the contract on that basis.”

7	The Employment Tribunal then went on to deal with the facts in the next section of their decision.  They describe how in order to complete his qualification as a General Practitioner, the Appellant entered into a trainee contract with Dr Bond, one of the partners in the practice where Dr Haskell was also a partner.  They made a finding in paragraph 10 relating to the allegations and counter allegations as they were before them of fact, alleging sex discrimination.  They said this:-

“There had been no untoward incident involving Dr Ovadje and Dr Haskell before the afternoon of 23 October 1998.  We reject the evidence of Dr Ovadje that there had been more than one previous incident and, in considering what took place between the two, we prefer and accept the evidence of Dr Haskell.  Although the strain of these proceedings was patent, Dr Haskell gave her evidence in a moderate and careful way.  Her credibility has been assisted by the fact that she made a complaint to Dr Bond within a few hours of the incident occurring.  In marked contrast, the allegations put forward by Dr Ovadje are lurid and are wholly without supporting evidence.  The allegations were not particularised until the presentation of the Originating Application when, had they been true, it was to be expected that they would have been put forward promptly and as soon as the potentially grave consequences of Dr Haskell’s allegations became apparent.  Because we reject Dr Ovadje’s evidence in this connection and because of the lurid nature of his allegations against Dr Haskell we do not propose to give them fresh airing in this decision.”

8	In the next paragraph the Employment Tribunal then effectively set out their conclusions as follows: -
“The findings above set out are sufficient to dispose of the issues arising in the claim of sex discrimination.  Whilst complaints of unlawful discrimination often pose questions of great difficulty, the first step is to determine whether or not the factual basis of the complaint is made out.  The complaint of Dr Ovadje fails at the first hurdle.  He was not treated by Dr Haskell or by the Respondents in any way which constituted less favourable treatment because of his sex.”  

9	The question of breach of contract is outlined in the decision of the Employment Tribunal in so far as there is reference in paragraph 14 of the decision and to the following finding: -

“Dr Ovadje made advances of a sexual nature to Dr Haskell and he persisted in those after it had been made clear to him that those advances were both inappropriate and unwelcome.  That amounted to sexual harassment…”

10	One of the primary submissions of the Appellant is that the Employment Tribunal made a fundamental error in their approach to the relevance of sexual harassment in this case and the task before them.  It is said that the Employment Tribunal exceeded their jurisdiction and constituted themselves a body to determine whether or not the Appellant himself had committed sexual discrimination.  Instead, what should have happened, says Mr Olatawura, is that the Employment Tribunal should have asked themselves whether or not the Appellants claim for sex discrimination succeeded and that would have entailed considering first of all whether the allegations against Dr Haskell were made out and secondly whether the procedures adopted by the Respondents in the way they handled that claim, ultimately dismissing the Appellant, were conducted in a way which were in themselves sexually discriminatory.  

11	We deal with the second aspect first.  In the Originating Application there is some detailed reference to the history of the matter as alleged by the Appellant and Mr Olatawura suggests that there is reference there to the assertion that the procedure was alleged to be sex discriminatory.  He refers to the third paragraph of the second page of the text setting out the reasons for the claim

“The (Appellant) decided not to attend the disciplinary hearing for the following two reasons.  First, Dr Bond had already rejected the (Appellants) version of events and had stated in her report that his relationship with the partners had broken down.  Second, the Respondent had already made it clear to the (Appellant) that his job was at an end and the Respondent had inserted an advertisement for a replacement in the 28 November issue of BMJ Classified.”

12	In their first consideration they made reference to that time issue for advertising, but that is not central.  What is suggested is that that text sets the scene for the allegation that the procedure was sexually discriminatory.  We have looked at that and we cannot see anything within that which would give any reader of wondering what allegations were being made to come to the conclusion that there was any link between the allegations in that paragraph and the allegation of sexual discrimination.  The content of that paragraph was consequent upon the first sentence of that paragraph which set out that the purpose was to explain why the Appellant had not gone to the disciplinary hearing and he gave those as his reasons.  That is not, it seems to us an allegation that they were sexually discriminatory.  Furthermore in addition to that there is a numbered paragraph 6 on the same page in the terms 
“The Respondent failed to take seriously the (Appellants) allegations against Dr Haskell and too hastily formed a judgement.”
13	That is an allegation, and it may be that in some circumstances someone would be arguing that an inference of sexual discrimination should be drawn form it, but that certainly is not asserted on the face of that document.  Furthermore those numbered paragraph are all instances of the heading which lead to those numbered paragraphs which is in the following terms: -

“The (Appellant) was unfairly dismissed for the following reasons:”

14	Those are on the face of it his allegations not of sexual discrimination but of unfair dismissal.  Following on from that Originating Application, we find that as to the first hearing for the identification of the issues, we are driven to conclude that there was nothing in what happened on that occasion to identify the procedure as an area where it was being alleged that there was sexual discrimination.  The passage in the decision of the Employment Tribunal which I have already quoted identifies the allegation that the false complaint was pursued through to his dismissal and is itself sex discrimination.  It seems to us that on the face of that as set out, what is there being said is that the “knock on effect” of first making a false allegation and then using it as the basis for a disciplinary procedure and dismissal was sex discrimination.  Accordingly in so far as the procedure is there identified as being an allegation of sex discrimination, it is confined to the area of what happened in the procedure as a consequence of the original false complaint.  That was the narrow issue for consideration before the Employment Tribunal.  We have seen nothing to the contrary in the papers.  Indeed that is exactly what happened when, at the main hearing, the Employment Tribunal set out the issues for consideration and they demonstrate their understanding of the issues that the procedure was relevant in so far it was the consequence of the original sexual harassment by Dr Haskell.  Nowhere do we see any assertion that the way in which the procedure was applied was in itself sexually discriminatory.  So although we understand Mr Olatawura’s assertions at this stage we are satisfied that that did not form part of the matters to which the Employment Tribunal had to direct its attention.  For that reason, it follows as a matter of reasoning that once the Employment Tribunal has come to the conclusion that the act of which the Appellant complained against Dr Haskell did not happen, then it cannot continue to be asserted that there was anything discriminatory in the procedure when on considers the way it was presented to the Tribunal at the time.

15	We also considered in reaching that conclusion the fact that on the first page of the Respondents’ Notice of Appearance they deny the allegations of sex discrimination and assert that there was a fair procedure and a fair substantial dismissal.  We are also referred to paragraph 23 of the Notice of Appearance in which there is reference to the fact that the Appellant was advised that if he did not resign there would be a disciplinary hearing from which dismissal may be an outcome.  We see nothing in that supporting the assertion that there was an issue for a sexually discriminatory procedure to be considered.  We have been referred to paragraph 32 of the Code of Equal Opportunity Practice and we accept that the way someone is treated can give rise in itself to sexual harassment.  It is simply that in this case it did not form part of the issues that the Employment Tribunal were called upon to determine.

16	The next matter which Mr Olatawura argues essentially is that the Employment Tribunal should not have considered whether there was sexual harassment as between the parties, and they were, he would say, conducting themselves as if they were a County Court dealing with that sort of matter.  We accept the proposition that it was not for the Employment Tribunal to consider if it were a cause of action under their jurisdiction as to whether or not the Appellant had committed an act of sexual harassment.  What the Employment Tribunal had to do was to consider the reason for dismissal.  There was a factual dispute.  The Respondent said that the Appellant was guilty of sexual harassment of one of the partners in the practice and that that was the reason for dismissal.  The Appellant said in effect ‘no the boot was on the other foot’.  In order to determine the genuineness of what took place there was a factual issue between the parties of cross allegations of sexual harassment to be determined as a matter of fact.  The Employment Tribunal determined it as a matter of fact.  They were not in that constituting some new cause of action in that respect outside their jurisdiction, it was simply part of the facts of the case they had to decide.  We cannot accept that the Employment Tribunal exceeded their jurisdiction.

17	Mr Olatawura puts it in this way.  He said that instead of considering whether the way in which the Respondents conducted themselves, both in the original allegation and in the procedure, was sexually discriminatory, they determined the issue of sexual harassment as if it were a freestanding cause of its own “per se.”  We can understand how that argument comes about because of the way that the decision presents it, but as we say that was only an essential factual issue.

18	The next matter which is argued before us is that the complaints of sexual harassment relate to the 23 October 1998 and that harassment is something which occurs if it is found to be proved over a period of time, and must therefore exist in a series of incidents and so that there must be two such incidents.  

19	In the conclusion to their decision in the passage to which I have already referred the Employment Tribunal made reference to what they believe to be the assistance of the Appellant.  One cannot persist in a single momentary act without repeating it.  We have had an opportunity of reading the account set out in the Notice of Appearance and other documents before the Employment Tribunal.  It is clear to us that although the events took place quite close together, it is quite wrong to suggest the Employment Tribunal erred in saying that there was harassment proved and in accepting the Respondent case simply because this episode did not spread over a number of days.  The proposition that whether something is sexual harassment or not is to be judged by time rather than by the quality of the act or acts complained of, is not a proposition of law that we find undermines the findings of the Employment Tribunal in this case.

20	The next main matter that the Appellant raises deals with the question of the approach of the Employment Tribunal to their assessment of the evidence and the acceptance by the Employment Tribunal of the evidence of Dr Haskell as against that of Dr Ovadje.  It is clear that there was at the very heart of the case before the Employment Tribunal a dramatic clash of evidence between those two witnesses and the Employment Tribunal’s determination of that clash was to be determinative in effect of the whole case.  The Employment Tribunal therefore had to assess the evidence of two witnesses.  Sometimes a Court or an Employment Tribunal in giving a decision will express a preference for one witness as against another.  If that is the only clue that is given as to why a Tribunal reaches that decision it is quite impossible to assess the validity of such a decision.  But in this case the Employment Tribunal set out in paragraph 10 the reasons why they came to the conclusion that they preferred the evidence of one to the evidence of another.  That obviously is not the whole story.  This is a case in which evidence was given over a long period of time: The case lasted two days.  Unlike us, the Employment Tribunal had the witnesses before them, they had an opportunity of observing and assessing their evidence.  That is the primary task of the fact-finding body in any court procedure.  We have looked for any error of law in that approach.  The main criticism that has been raised by Mr Olatawura is in relation to the timing of complaints.  The Employment Tribunal said that the credibility of Dr Haskell was assisted by the making of the complaint within a few hours and they contrasted that with the assertion that the Appellants allegations were not particularised until the presentation of the Originating Application, when, had they been true, it was to be expected that they would have been put forward promptly.  It is argued on behalf of the Appellant that there were witnesses available, some of whom were discouraged by the Chairman and that the Originating Application was not the first time these allegations were made.  The Appellant had the benefit of representation by the British Medical Association, to whom we are told the Appellant, and before the proceedings all began, gave full explanation of his allegations.  It is said that here was the Appellant having found at last someone he could trust to whom he could put his side of the matter.  

21	Our attention has been directed to pages 62 – 64 of the bundle before the Tribunal.  We have seen pages, 62 and 63, which are really formal letters which established that the Appellant was in contact with his Union Representative.  Unfortunately Mr Olatawura has not been able to locate the other page, but we accept that it may well be that in the course of preparation and discussion the full account was given.  The point being made by the Employment Tribunal was that here were serious allegations being put about the Appellant and the Respondents were conducting disciplinary investigations and there was a dismissal hearing in effect which the Appellant did not attend.  The argument seems to be that within the practice and within that context the Appellant was not fighting back with his allegations as against the doctor.  

22	It may be that he told us, and it may well be that there was an explanation as to why he had not mentioned it to those in the practice if that were the case.  It may be that that is something which could have been gone into a little more thoroughly in the decision of the Employment Tribunal and we accept that it may be that the bald statement that the allegations were not particularised until presentation of the Originating Application, fails to give credit for what the Appellant actually did to tell people about his complaint.  But it is only one of the factors that was put into the balance by the Employment Tribunal.  There were other matters to which they referred.  The essential point of there being a time gap was made out, although the way it was expressed was over generalised.  

23	The next matter that is suggested is that simply because someone makes what are described as lurid allegations does not make them any less credible than more modest allegations of a more restrained act of harassment.  That is a matter, it seems to us, for the judgment of the Employment Tribunal.  If someone is trying to assess the validity and credibility of an allegation one of the things to be looked at is the nature of the allegation itself.  An Employment Tribunal, it seems to us, is entitled to draw a conclusion from the nature of an allegation at to whether or not it has the “ring of truth” or not.  People may disagree, others may draw different conclusions, but we do not find any error of law in the approach of the Employment Tribunal in that respect.

24	Accordingly we have come to the conclusion that in relation to the grounds of appeal embraced in part C of the skeleton argument there is no arguable point of law.  That skeleton argument very helpfully drew together the allegations under that head, the jurisdiction of the Tribunal whether there was in fact sexual harassment as defined in law, the adducing of evidence and reasoning as to sexual harassment and wrongful dismissal and whether there was less favourable treatment.  Accordingly that part of the appeal raising those matters must be dismissed.

25	The next area about which complaint is made concerns the way in which the Chairman approached the whole matter of conducting the proceedings and there is considerable criticism of the Chairman’s conduct during the hearing.  The practice of the Employment Appeal Tribunal, when these allegations are made, is to invite the party making the complaint supported by any witnesses, to file an affidavit in relation to those matters and to ask the Chairman of the Employment Tribunal, in consultation with members or not as he considers it most helpful, to furnish a response.  It is a very difficult issue for the Employment Appeal Tribunal to determine.  The sort of situation does arise from time to time.  The perfect way to decide whether or not there was misconduct on the part of a Chairman would be for there to have been someone there at the time watching.  That of course is not a possibility.  We cannot turn the clock back in order to assess what was going on and we have to do our best in relation to what is not a perfect way, but the next best thing and we are conscious of the fact that this sort of allegation covers a large number of areas and parties are unaccustomed and unfamiliar with Tribunal surroundings.  There have been held to be cases in which sometimes a Chairman does overstep the mark and behave in an unacceptable way.  There are other cases in which a Chairman behaves in a way that is acceptable and is a genuine way of trying to get help to get to the truth, but which may appear, simply because of the unfamiliarity of a party, as being antagonistic or biased or unhelpful.  Therefore simply because a party may feel aggrieved and feel that certain instances happen which upset him or her, that does not mean that he or she is right.  Therefore it seems to us that what we have to do is to look at the situation as we see it to be alleged and see if there does remain anything which is arguable and available as an arguable error of law.  We recognise however, that a party may still go away feeling that it was not fair.  Our assessment is whether on all the information we have there is an arguable case that can be put forward before the Employment Appeal Tribunal on all the information that it was not fair. It is necessary to deal with each of the items of complaint.

26	The affidavit deals in numbered paragraphs; the first is a formal statement of the position of the Appellant.  The second is because the Appellant was unavoidably delayed for the two days of the hearing for different reasons.  The Appellant was taken to task and the phrase “being late as usual” may have been used.  With the precision of the lawyer Mr Olatawura we points out that “usual” is not just two occasions and in paragraph 3 the Appellant goes on to complain that not keeping appointments demonstrates the usual stereotype image of black people and it seems that he was upset.  The Chairman has gone into this in some detail.  He is concerned about parties that arrive late and the inconvenience it can cause to others and the difficulty there is sometimes in completing a hearing as a result.  It is the Chairman’s habit to take people to task if they are late and he knows nothing of the stereotyping referred to.  With that response there is nothing left that demonstrates any arguable point of law.

27	In paragraph 4 the complaint is that the Tribunal Chairman said it was irregular to make the defendant’s party to the case when that had all been gone through before.  The Chairman recognises that the proper identity of the Respondent was an issue that he did raise.  He rejects any suggestion that he was complaining, but he does point out that it was necessary to address the issue at to whether or not the right parties had been identified as Respondent and it was an issue that in any event was resolved in the Appellants favour.  There was no flaw in the proceedings in that respect.

28	The Appellant then refers in paragraph 5 to the complaint that he was stopped from calling evidence to lay the basis of damages because it was unnecessary.  That is accepted by the Chairman who points out that in this case, as in our experience in almost all others, the Tribunal chose to deal with the question of damages subsequent upon the main hearing and therefore where they were properly able to do so, they left out at that stage evidence about damages, only to come to it if at a later stage, having found the issue proved, they then had to assess the matter of damages.  That is a good example of how an inexperienced party may be taken aback by something which is in accordance in fact with regular Tribunal practice.
29	In paragraph 6 the Appellant complains that his wife was severely discouraged from giving evidence and that the Employment Tribunal then expressed the point that there had not been any earlier complaint of sexual innuendoes without having heard her.  The Chairman says that there was no restriction placed on calling a witness but that her evidence, to his recollection, was relevant to remedy and not to the merits and the decision not to call her was freely taken.  It is quite apparent from the parties before us at the moment that that explanation is not understood as correct by them.  It may be that the Appellant was discouraged from calling a witness.  But witnesses are often prevented from giving evidence by Chairmen of Tribunals.  They have the control of the procedure.  They have to make a judgment at a particular time as to whether to permit a witness to give evidence.  Here was, we are told, a Counsel appearing on behalf of the Appellant and with that sort of professional representation, if there was to be a serious severe disadvantage, it would normally be fought over by vigorous representation.  That does not appear on the material before us to have taken place.

30	In paragraph 7 the complaint is made that there was no mention of the fact that the Appellant asked the Respondents for a guarantee of protection in his report of sexual harassment.  As is pointed out by the Chairman, the Tribunal did not attempt to address every single issue but the Chairman says this

“His case appeared to be that he could not be expected fully to co operate in the investigation without an assurance that his position would not be adversely affected”

31	They found that that did not have any bearing upon the conclusion reached on the central issue.  That is an assessment of fact and we see no error in law in that.  It does not seem to us, even if it was an error, to have within it any seeds of impropriety.  
32	In paragraph 8 there is an allegation of interference with Counsel’s questioning of witnesses in an obtrusive way, so that in the Appellants words 

“I noticed a lot of strain in his effectiveness.”

33	He said that the Chairman acted in a protective way to defence witnesses when they were being shown to be telling lies.  The Chairman rejects that. Notes were taken on a laptop.  He accepts that he does intervene in order to identify issues, and he does intervene to get clarity and to ensure that the material evidence, as he puts it, had been correctly understood and recorded.  He says that he does not believe that this in any way inhibited the freedom of Counsel to pursue relevant issues but the implicit suggestion is made that he was biased in his approach and he rejects that.  We see no material to support the Appellant’s contention in this respect.

34	The next allegation that is made is that the way in which Dr Grenville, who had been summoned was intimidated in evidence and that effectively she was prompted by the Chairman so as to change her evidence.  The learned Chairman set out a long answer to this allegation.  He said he did entertain some concerns as to the role of this witness and the doctor was seeking apparently to give some opinion as to the merits of the two cross allegations of sexual discrimination.  In the Chairman’s view that was the task of the Tribunal and not for Dr Grenville’s opinion, and that her function had been to try to find another posting for the Appellant.  He does identify what was relevant, which was the evidence from Dr Gremville of what the parties actually said and their demeanour.  However, her evidence did not assist the Appellant in that respect because in the words of the Chairman her evidence was “she did not reach a conclusion on the merits; that she had invited Dr Ovadje to a elaborate but he refused to do so; that her aim was to avoid disciplinary action by encouraging the (Appellant) to resign.”

35	On the face of what is now said, we see the concern of the Appellant that the interventions and restrictions placed upon Dr Grenville, is answered by the Chairman that yes, he did restrict her evidence and intervene but for purposes which were proper purposes to concentrate on what was relevant and that which did not trespass on the Tribunal’s own jurisdiction.  On the face of that answer there is nothing that remains, it seems to us, which one can say objectively gives rise to an arguable error of law.  It is then said that in another instance, namely of cross examination of Dr Bond about the advertising of the post, that there had possibly been an inconsistency between him and Dr Myers and that the Chairman guided the evidence of Dr Bond and indeed suggested answers to be given so that he effectively changed his evidence.  The Chairman says that he was concerned about the timing of the placing of the advertisement and its possible implications.  They were alive to the allegations that the decision to dismiss in effect was made before the disciplinary proceedings as evidenced by the placing of an advertisement.  The Respondent explained that it was placed before any conclusion as to the truth of the allegations, but that whatever the truth that the training could not go on because of the break down in relationships.  The Chairman accepts that he may well have pressed witnesses on this point because of a degree of uncertainty, but he also points out that this area of the case produced evidence which was to the advantage of the Appellant.  This was as a result of the Chairman’s intervention, he would say, and he says he did not believe that he overstepped the proper boundaries.  There is no material, it seems to us upon which an Employment Appeal Tribunal could assess and come to a conclusion that he did so overstep the boundaries.  The matters raised by the Appellant are equally consistent with the perfectly reasonably explanation given by the Chairman.

36	Paragraph 12 again deals with what are examples of the need of the Chairman to intervene to clarify issues.  Paragraph 13 criticises the Chairman for intervening with phrases to Counsel for the Appellant as 

“I believe you have made the point”
Or 
“I do not understand where you are heading.  Can you explain this question.”

37	The Chairman says that that is the sort of thing he usually does say.  It is the bitter experience of many advocates that that is just the sort of thing judges do say from time to time.  It can make it look as if the Tribunal is being antagonistic, but in general terms it is usually consistent simply with a desire to be able to hear argument on the central issues.  Relevance is the concern of the advocate and of the Tribunal and indeed a sense of relevance is perhaps the thing that always lies at the heart of the primary quality of either any good advocate or of any Tribunal.  That is really what was happening there and we can no error whatsoever in that approach.

38	In paragraph 14 is the fact that witnesses, when hesitating, were prompted by phrases such as “my understanding is that you are trying to say” from the Chairman.  The Chairman points out that it is difficult to comment on this allegation but that where a witness has already given evidence about something and is later then appearing to hesitate, the Chairman may remind them of what has been established earlier on.  Or where a point is clear but a witness seems to be struggling to find the words, he will try to assist with phraseology.  There is nothing before us to give rise to any argument that anything other than that was happening, although the Appellant may well have felt it to be the case.
39	In paragraph 15 the Appellant contends that the behaviour of the Chairman degenerated after a relative of the Appellant’s was no longer in the public gallery and he complains that there were no notes being taken.  The Chairman says he believes he was taking a note of the material evidence.  Of course he would not take a note of all the evidence, and he does not know and has no recollection of the man being referred to and he rejects the suggestion that his conduct changed.  There is no material in that allegation upon which one can say there was any basis of an error of law. 

40	Then there is a criticism of the decision itself being over three pages and not doing justice to the evidence of eighty pages, and the legal authorities.  That does not really go to the conduct of the Tribunal.  It seems to us that goes to the question as to whether the decision is a satisfactory one.  Of course a decision of an Employment Tribunal is not a long detailed judgment.  The Employment Tribunal is there to give an indication to the parties so that they know essentially why they have won or lost and what the reasoning of the Tribunal was.  It is not a rehearsal of all the detailed processes of analysis of the Tribunal.

41	Paragraph 16 then complains really of not having a proper consideration of all the evidence which was not accepted by the Tribunal.  Essentially what is said in paragraph 16 by the Appellant is “the Employment Tribunal were wrong, they should have believed me and they did not.”  There are two parties before a Tribunal, one wins and one loses.  Frequently the one that loses believes that the Tribunal was wrong, but it is not possible to re-argue the case.

42	We are asked to deal specifically with the fact that the Chairman prevented any attempt at recording during the Tribunal proceedings.  It is unlawful, as we understand it, to record proceedings in a court of record.  It is certainly not any practice we have heard of in permitting a party to record proceedings and in any event, it is a matter clearly within the discretion of a Tribunal.  Furthermore there may be a recording of proceedings conducted by the Tribunal itself.  This gives us the opportunity of dealing with a complaint of the Appellant that the Notes of Evidence of the Chairman had not been produced.  The practice of the Employment Appeal Tribunal is only to order the disclosure of Chairman’s Notes when there is found to be an arguable point of law which requires it and had that happened we would at that stage have considered whether the determination of the point of law required such notes.  The transcription of notes is very onerous one and that cannot be imposed on parties just because a party is dissatisfied with their hearing.

43	In paragraph 17 it is alleged that the conduct of the Tribunal was adverse and that the Tribunal Chairman descended unfairly into the arena.  That is a generalised assertion summarising what has gone before and does not introduce a new allegation so it is not possible to deal with that.  We have already referred to the question of the Notes of Evidence as complained of in paragraph 8.

44	We are satisfied that there is no error of law apparent on the face of the decision or in the way in which this matter was conducted that can be argued in full before the Employment Appeal Tribunal.  Accordingly the appeal is dismissed at this stage.