Appeal No.EAT/623/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 February 2002

 
Before
MR RECORDER BURKE QC
MR B GIBBS
MR J C SHRIGLEY

ASCO GENERAL SUPPLIES LTD	APPELLANT

1) MRS E L JACKSON 
2) MRS J D BARRITT	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Mr P Mooney
(Consultant)
Instructed by:
Employment Advisory Services Limited
Lancaster House
Old Wellington Road
Eccles
Manchester
M30 9QG	

MR RECORDER BURKE QC
1.	This is the Preliminary Hearing of the appeal of the employers, ASCO General Supplies Ltd; against a decision of the Employment Tribunal sitting at Manchester, chaired by Miss Woolley and promulgated on 19 March of last year.  By that decision, the Tribunal unanimously held that the Respondents had discriminated against two Applicants, Mrs Jackson and Mrs Barritt on the grounds of their sex by subjecting both of them to the detriment of being exposed to abuse.  

2.	The grounds of appeal are set out in narrative form in the Notice of Appeal and have been refined this morning by Mr Mooney, whose submissions to us have been most helpful.  We can divide the grounds on which the appeal is put into broadly three separate heads.  Before doing that, we should point out that the hearing was one which took place over 6 days in January and February of last year.  There were something like a dozen or more witnesses called; and the Tribunal’s decision on the facts is one of enormous detail amounting to well over 20 pages in which the Tribunal went through all the various incidents of which a complaint was made one by one and eventually made findings about them.  

3.	The first way in which the appeal is put is that the Applicants were allowed by the Tribunal to introduce into their evidence matters of complaint which did not appear in the Applicants’ Originating Applications or in statements which accompanied those applications, at least in the case of Mrs Jackson and had not been put forward in the course of extensive investigations made by the employers prior to the presentation of the Originating Applications.  It seems that, at some earlier stage in these proceedings, the Tribunal had directed that there should be witness statements.  Unfortunately Mrs Jackson and Mrs Barritt were not represented professionally at the hearing.  They were represented only by Mrs Jackson’s husband, Mr Jackson, who it is thought had been some kind of lay official in a Trade Union at some stage of his life but obviously had no experience at all of handling any advocacy task, let alone an advocacy task of substance such as that which was required for a hearing of the type with which we are concerned.  For that reason, witness statements had not in fact been prepared; and when matters began to come out, first of all in the evidence of Mrs Jackson and secondly in the evidence of Mrs Barritt, which had not been previously flagged up (to use an apt expression) to the employers, Mr Mooney, on their behalf objected; but the Tribunal allowed those matters to go into evidence.  

4.	The Tribunal, in paragraph 76 of its reasons, sets out in detail why its finding that the employers’ conduct and in particular, the conduct of a Mr L, who was the chief perpetrator of the matters of which complaint was made, amounted to a continuing course of conduct.  Their finding that there was a continuing course of conduct is not criticised and could not properly be criticised.  It is highly likely, in a case in which there is a long history of conduct of which complaint is made, that at some stage in that long history some matters which have not specifically been pleaded or set out in witness statements will come out, particularly if there are in fact no witness statements.  When that happens, it is for the Tribunal to decide, in its discretion, whether to let those matters into evidence or whether to exclude them.  In this case the Tribunal let them in.  We have not heard of any specific prejudice caused to the employers by those matters going into evidence.  

5.	The allegations against the employers can be broadly divided into two parts.  Firstly, there were the allegations against shop floor employees, including the chief alleged perpetrator Mr L, as he was called by the Tribunal, who at some stage was promoted to some form of supervisory position; and, secondly, there were criticisms of the employers’ management for not properly investigating the complaints that were made as to the conduct of the primary perpetrators.  While management employees were called on behalf of the employers in number, and we say that in no critical spirit because several had become involved in one form or another in the investigations and in the allegations, by and large, and possibly entirely, the employers called none of the shop floor employees.  

6.	Now, with that general description, we turn to the specific new pieces of evidence of which Mr Mooney complains.  We, asked him during the hearing to identify them; and he identified them as two.  Firstly, in Mrs Jackson’s case, he tells us that there was an allegation, which was referred to by the Tribunal in paragraph 20 of its decision, that there was horseplay within the department.  So far as the employers’ knowledge of the horseplay was concerned, members of management were called to give evidence; and there is no reason why management would not have been perfectly able to deal with this new matter in the course of a hearing which took six days but started on 29 January at lunchtime and did not end until 9 February.  So far as shop floor employees are concerned, the same applies, although as it happens, none of them were called.  It is difficult, therefore, to see how there could have been any prejudice to the employers’ case.  In any event, the Tribunal did not find that horseplay, as such, constituted discrimination. 

7.	The second piece of new material arose from the horseplay because Mrs Barritt, the second Applicant, complained that, in the course of one of the episodes of horseplay, she had been touched on the breast by Mr Pye; and the Tribunal found that that had indeed happened.  It is not surprising that the Tribunal so found because Mr Pye was not called to say that he had not done so.  This may have been a new allegation; but the employers can hardly say they were prejudiced.  Mr Pye was one of their employees; they could have called him if they wanted to; they did not do so; and in those circumstances we can see no basis on which it could sensibly be said that the Tribunal, in exercising its discretion to allow in these pieces of evidence in the course of the whole of the history of this case which the Tribunal investigated so fully, erred in law.  

8.	Next, it is said that the Tribunal failed to reflect in its decision the employers’ case that the real reason for the Applicants’ complaints was the change in the methods or systems of work which occurred towards the end of the history which the Tribunal was investigating.  We do not see that it can arguably be said that the Tribunal failed in that respect at all.  The Tribunal, at paragraph 43, specifically found that the change of which complaint was principally made, namely a change in the height of the benches from which Mrs Jackson and perhaps the other Applicant too were expected to lift or move boxes, arose not out of discrimination but out of a completely separate matter, that is to say the desire of Mr L, to get retribution on a Mrs Small for revealing private confidences about him.  

9.	It is plain from the decision as a whole that the Tribunal had very much in mind that the change in the work methods was said by the employers not to have arisen from discrimination and reflected that in their decision.  It is clear that the employers’ case was not and could not have been that everything of which complaint was made was attributable to that change, because if not all, certainly much of the employees’ case related to what people from the shop floor, in particular Mr L but not him alone were saying to Mrs Jackson and Mrs Barritt well before the change in the work system took place.  We do not propose to go through all the findings of the Tribunal; it is only necessary to read the contents of paragraphs 22 through to 33 to appreciate that those matters which the Tribunal found to have happened were not, on the Tribunal’s findings, connected with what later occurred, namely the change in the work system.  The employees’ case was that the change in the work system was connected with those matters, because they all were episodes in the history of sex discrimination; but the Tribunal rejected that case in relation to the change in the work system.  Accordingly we see no arguable criticism of the Tribunal’s approach. 

10.	Next and perhaps most substantially is the case which has been advanced by Mr Mooney on behalf of the employers that the Tribunal acted in an improper way or was biased in its conduct of these proceedings.  It, of course, goes without saying that any allegation of improper conduct or bias has to be taken very seriously by a Tribunal of Appeal and is never taken lightly.  In this case, as is the usual procedure before a preliminary hearing, the Registrar required affidavits to be sworn in support of the employer’s case; and Mr Mooney himself, he having conducted the matter before the Tribunal, has sworn such an affidavit, as has Mr Draper, the operations director of the employers, who was one of the witnesses before the Tribunal.  Those affidavits were sent to the Chairman, who responded to them on 9 August of this year.  We have carefully read the affidavits and the Chairman’s response.  The principal complaint, and in saying that it is the principal complaint, we are reflecting the way it has been put to us by Mr Mooney today without seeking to denigrate the other complaints, is that, from a very early stage in the hearing the Tribunal and in particular the Chairman in effect took over the conduct of the employees’ case. 

11.	It is said that after Mr Jackson, on behalf of the employees, who was not entirely surprisingly perhaps very nervous, had asked two questions of Mrs Jackson, the first witness, which turned out to be both leading and inappropriate questions, the Chairman indicated that it would be better if she took over the examination in chief; and she thereafter proceeded to conduct the examination in chief, so Mr Mooney complains.  Furthermore, he says, at the start of the cross-examination of the Respondent’s witnesses the Chairman said to Mr Jackson “would it help if I asked the questions?”  Mr Jackson, not surprisingly in the circumstances, indicated his assent to that proposition and therefore the cross-examination, and a powerful cross-examination according to Mr Mooney, was carried out by the Chairman.  

12.	This is perhaps an unusual way for a Tribunal to proceed; but we do not take the view that it arguably represents improper conduct or bias.  The Chairman, at page 19 of the bundle on the first page of her response to the affidavits, agrees that she questioned the Applicants and their witnesses.  She said that she did this in order to draw out their evidence because they were represented by the husband of one of them, who was not a skilled representative; and she accepts that she asked Mr Jackson, on each occasion when cross-examination of the employers’ witnesses was reached, whether he wished her to ask what she saw as the relevant questions and that he agreed.  She says that she regarded it as necessary to assist the presentation of the Applicant’s case in this way, but did not regard it as necessary to assist the employers in the same way because they were represented by Mr Mooney, whom she regarded as competent.  

13.	Plainly Mr Jackson was not able to act as an advocate to the extent that was necessary in a long and difficult case.  The Tribunal, in those circumstances, had a discretion to decide to what extent it thought it right to help Mr Jackson, so that the case could be presented even-handedly as between the parties.  It is significant, we think, that this was not the Chairman acting alone because the lay members, according to Mr Mooney, took a role in what occurred, one perhaps more than the other; this was not the Chairman seemingly going off on a frolic of her own.  Furthermore, it is worth weighing in the balance that Mr Mooney did not ask the Tribunal to cease to adjudicate on the case because it was demonstrating bias during the course of the hearing, which on Mr Mooney’s part would have been a proper line to adopt, following what is said in Harvey, volume 5, paragraph T923.  Mr Mooney accepts that he did not object at any stage, even by asking the Tribunal perhaps to conduct itself during the hearing in a manner slightly different than that which it had adopted.

14.	While, of course, what the Tribunal can do is limited by the duty to act fairly and properly, we do not see it as arguable that, in this case, the Tribunal crossed the boundary into acting improperly or with bias.  Mr Mooney has referred us to the case of Mensah v. East Hertfordshire NHS Trust [1998] IRLR 531.  In that case, the employee had failed in her evidence to put forward a specific allegation which was raised by her Originating Application.  The Tribunal therefore did not deal with that specific allegation.  The Employment Appeal Tribunal held that the Employment Tribunal was under a duty to bring out allegations which the employee, herself, in the course of her evidence had seemingly chosen not to bring out.  The Court of Appeal reversed the decision of the Employment Appeal Tribunal, restored the decision of the Employment Tribunal and held that the Tribunal was under no such duty.  It is not necessary for present purposes to go in detail through the judgment of Lord Justice Gibson or the concurring judgment of Sir Christopher Slade, to which we were referred by Mr Mooney.  Most of the passages which he cited to us from that decision and from earlier decisions, quoted in that decision, relate to the extent of the Tribunal’s duty to bring out points mentioned in the “pleadings” but not brought out in the evidence, as opposed to the point now in issue, namely the extent to which a Tribunal can intervene by asking questions either in chief or in cross-examination on behalf of one party.  

15.	It is however, noticeable, that one of the cases to which reference was made in Mensah is a decision of this Appeal Tribunal, Dimtsu v. Westminster City Council [1991] IRLR 450. The Court of Appeal point out at paragraph 21 of Lord Justice Gibson’s judgment in Mensah, that the EAT said in that case: - 

“…the majority would not wish to cast any doubt on the propriety of a long-established practice whereby chairmen of industrial tribunals give assistance where it is needed in the formulation and presentation of the cases of persons before them, be they applicant or respondent, who have not got the benefit of professional representation and indeed on some occasions when they have such representation.  But this must be a matter for the judgment of the industrial tribunal in each individual case and should not be erected onto an obligation which if not fully complied with leads to a conclusion that an error in law has been committed.”  

We emphasise the words “must be a matter for the Industrial Tribunal in each individual case.” We see no reason for saying that arguably the Tribunal erred in law in the way it conducted itself in carrying out the hearing of this case in the particular respects with which we have been dealing.  

16.	Mr Mooney relies on other specific matters as well as the general matters to which we have referred; he points out that one important witness, Mr McInerney, became confused as a result of the cross-examination to which he was subjected, which Mr Mooney says and we accept from him of course was quite vigorous.  When this occurred the Tribunal adjourned for 5 minutes to allow him to collect his thoughts.  No doubt if more time had been needed, it would have been granted; but the response seems to have been entirely adequate and apt and not one which was either improper or indicative of bias.  

17.	It is said that the Chairman asked leading questions of the employees when dealing with their evidence in chief.  One example of the two we were given, (this is the high point, Mr Mooney accepted) was the question, “do you consider that the Respondent was treating women differently than men?”  That could be said to be a leading question, of course.  Mr Mooney did not object to it at the time and one has to say that it would be difficult to imagine that much weight could be placed on the answer, if the other evidence did not justify whatever conclusion was expressed.  However the findings of fact made by the Tribunal plainly did justify the conclusion we take to have been expressed.  In any event, as we suggested to Mr Mooney in argument, if the question had been put in this form, “what is your view as to whether the employers treated women differently from men?” the answer would have been exactly the same; and as Mr Mooney accepted that would have been an unobjectionable question.  

18.	The other leading question which Mr Mooney draws to our attention was one asked of Mrs Barritt in relation to her visit to a psychiatrist as a result of her feeling low because of post-natal depression.  She had plainly been saying that her post natal-depression was in some way linked to the history of what had happened at work, i.e. that her depression would not have been as bad if she had not had been so badly treated; and the Chairman asked her according to Mr Mooney, “did the Psychiatrist state, that it would be a lot better for you when the case is behind you,” to which of course she answered in the affirmative.  It seems to us that that leading question was actually in favour of the Respondents rather than in favour of the Applicant because it cut down the amount of detriment and damage which the Applicant could claim had occurred by reason of that element of the depression, if any, caused by the behaviour to which she had been subjected at work.  

19.	Next it is said that the Chairman made a specific comment at an early stage of the case that the employers ought to have had a harassment policy, without enquiring whether there was such a policy.  The reality appears to us, from what Mr Mooney has told us and from what the Chairman said, to have been that by that stage, i.e. some way through the evidence on behalf of the employees, it appeared to the Tribunal that there was not a harassment policy.  None had been put in front of them.  In fact there was a paragraph about harassment somewhere in an employees’ handbook which the Tribunal had not at that stage seen; but at that stage it appeared that there was no specific harassment policy as the Tribunal might have expected the employers to have had.  When the comment was made, Mr Mooney said that he would be referring to the harassment policy.  He did so in cross-examination of a witness, who we think was probably Mrs Jackson but may have been Mrs Barritt (it does not matter which); and thus what there was by way of harassment policy was put before the Tribunal.  We can see nothing wrong in this at all.  It seems to us to be precisely the sort of comment the Tribunal in the context of the case was entitled to make, i.e. pointing out that they had not been shown the harassment policy and asking, “well where is the harassment policy?  There does not seem to be one.”  Their view was corrected in so far as it could be corrected; and the matter went on from there on the basis that there was a document which would come out in the evidence; and it did.  

20.	We believe that we have dealt in this judgment, (which is a very long one having regard to the fact that this is a preliminary hearing but we wanted it to be seen clearly that we have considered Mr Mooney’s submissions and endeavoured to do them justice) with most if not all of the matters which have been put before us in support of the complaint of improper conduct or bias.  We have not been through everything that is set out in the affidavits.  Mr Mooney selected what he wanted to put specifically before us.  We have read the affidavits.  We have considered the responses by the Chairman.  We have taken them all into account.  In our judgment there is not, either individually or cumulatively, an arguable case of bias or of improper conduct on the part of the Tribunal.  

21.	Accordingly for all these reasons, this appeal must be dismissed.