Appeal No. UKEAT/0137/04/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 November 2004

Before
HIS HONOUR JUDGE D SEROTA QC
MRS R CHAPMAN
LORD DAVIES OF COITY CBE

ELIZABETH ADJAHO	APPELLANT

MS E BARIYENDEZA	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR EDWARD KEAZOR
(Solicitor)
Instructed by:
Messrs Bensons
84 Walm Lane
London
NW2 4QY	
For the Respondent	MISS A BOASE
(Representative)
Instructed by:
Free Representation Unit
6th Floor,
289 - 293 High Holborn
London
WC1V 7HZ	

SUMMARY

Practice and Procedure

Although the Employment Tribunal misdirected itself as to certain evidence the misdirection was not sufficient error of law to vitiate its decision.

HIS HONOUR JUDGE D SEROTA QC

1.	This is an appeal from the Decision of the Employment Tribunal at Stratford, chaired by Ms J M Jones that was promulgated 11 December 2003.  The Employment Tribunal made findings of constructive dismissal, unlawful deductions from wages and breaches of the Working Time Regulations but found that the provisions of the Wages Act did not apply.  It awarded by way of basic award, compensation for unlawful deductions, and compensation for breach of Working Time Regulations, a total of some £6,783.10.

2.	The case came before the President on a preliminary hearing and on 31 March he referred one matter back to the Employment Tribunal for its views.  This related to an alleged threat to which we will return shortly.  The President said that was the only point in the case.  He was reported as saying it was central; and all other matters that were raised in the Notice of Appeal were peripheral or collateral.  He invited the Employment Tribunal to respond or perhaps indeed to review its decision.  The Employment Tribunal responded, and we will come to the response shortly, but it did not review its decision.

3.	The President considered when the matter came back for the preliminary hearing on the 26 April that the Employment Tribunal’s response did not resolve the issue and there was a sufficient question mark for the appeal to go forward to a full hearing.  So far as we are concerned, the President has correctly identified the only issue that there is in the case, other issues have been raised that they are all purported appeals on the grounds of fact, and are thus inadmissible.

4.	Let us say something first of all about the factual background to this matter.  The parties are both Tanzanian.  The Respondent comes from a distinguished family in Tanzania, a family which is described as having considerable influence.  Her father is an Anglican Bishop.  She works in this country, we understand as a Secretary at the Commonwealth Secretariat.  In July 2000 she recruited the Applicant in Tanzania as a domestic help and brought her to this country with immigration consent in about September 2000.  The Employment Tribunal found that the way in which the Applicant had been treated by the Respondent was shabby in the extreme.  There were a number of breaches of contract.  We simply refer to them briefly, but the Tribunal found that instead of being given a single room as promised the Applicant had to share a room for most of the time she was with the Respondent  Further, although the contract provided she should only work for 50 hours per week the Employment Tribunal having looked at the evidence in some detail concluded that the Applicant had been required to work significantly in excess of 50 hours per week doing house keeping and also general child minding duties as well as baby sitting in the evenings.

5.	The Employment Tribunal concluded she had not been given sufficient time off work, she had not been given holidays and further, that she had not been paid her wages in full.  These were matters which were investigated by the Employment Tribunal.  In paragraphs 23 to 25 the Employment Tribunal concluded that the Applicant was treated shabbily and in a disrespectful manner.  The Employment Tribunal was satisfied that because of its influential position in Tanzania, her family were in a powerful position in relation to the Applicant and her family and that the Respondent abused this position.  The Tribunal found it especially appalling that the Applicant was put in a situation of having to go to the Respondent’s ex-husband to ask for maintenance for their children, in the light of the fact that the Respondent is estranged from him.  This continued even after the Respondent’s ex husband had been violent towards the Applicant.  The Respondent displayed a lack of any concern for the Applicant’s feelings or any rights which she might have, in the way she treated her and dealt with her throughout the time of their relationship.
6.	A significant matter which has been the crux of this appeal took place on 13 March.  On 13th March the Applicant’s evidence was that she heard the Respondent speaking on the telephone and she made threats as to the Applicant’s safety should she leave her employment and return to Tanzania.  Because of the status of the Respondent’s family in Tanzania, the Applicant believed the Respondent could carry out this threat and she feared for her safety.  She also asked for money to buy medication; this was refused, and the events of this day were the final straw and the Applicant’s evidence was that she fled from the Respondent’s house the following day having left the children at school, going to the Citizens Advice Bureau for advice.  She never returned to the Respondent and put the keys to the flat through the door.

7.	The Employment Tribunal conclude:

“We believe the Respondent did make the threat as alleged by the Applicant and that there was a real threat to her safety.”

The Employment Tribunal then went on to say this:

“The Respondent did not deny the allegation that she made the threat, in evidence to this Tribunal. The Respondent’s only response to the Applicant’s case was to say that it was all denied. However, she did not challenge the Applicant on the specific threat that was made to her safety.”

and in paragraph 28:

“In the face of any contrary argument, we find that these threats were made.”

Having found that those threats were made, it was not difficult for the Employment Tribunal to conclude that this conduct was sufficient to constitute a repudiatory breach of contract.  It would have caused the Applicant to lose total trust and confidence in her employer and showed that she no longer wanted to be bound by her legal obligations to the employee.

8.	At the Employment Tribunal both the Applicant and the Respondent put in and read out from their witness statements.  At paragraph 35 of the Applicant’s witness statement, one found this evidence:

“on the evening of 13th March 2003, I overheard the Respondent speaking with her sister. The Respondent stated that she was going to have me beaten or put in prison until I died, should I return to Africa. At hearing this, I became extremely scared for my safety.”

and she then describes how she left.

9.	In her IT1, she again refers to what took place on 13th March, in similar terms.  We have seen today, for the first time the IT3 which was prepared by the Respondent in person and as my colleague Lord Davies has pointed out, there is no specific denial of this particular threat which is, as we have said, clearly set out in the IT1.

10.	In her witness statement, the Respondent had in fact said this:

“14.	The Applicant claims that she discovered a plot where I was to leave her beaten if she returned to Africa, and therefore she had to leave my home. That is nonsense. The threat she claims relates to her returning to Africa, not to being in my home or in the United Kingdom. It appears she has manufactured an allegation, which I find very offensive, perhaps for her own immigration purposes. Her departure from my home may be connected with a plan to remain in the United Kingdom on another basis. It may be she did not intend to stay in my home for the duration of her visa, and her departure is connected with that.”

11.	On other occasions in a supplemental witness statement at paragraphs 15, 21 and 27, we find generalised statements by the Respondent that the allegations being made against her by the Applicant were unbelievable that she did not know why they had been made up or that she could only believe they have been made up for her own gain.

12.	When the matter came before the President, he was concerned that there appeared to be a contradiction in the way in which the Employment Tribunal had approached the evidence relating to the threat.  On the one hand the Employment Tribunal seemed to have been saying that the threat was not denied but the Respondent’s witness statement (paragraph 14 of which we have read out) did amount to a denial.  We have heard from Miss Boase who appeared on behalf of the Applicant as she did at the Employment Tribunal.  She explained that time rather ran out.  This is also borne out by the affidavit from Mr Ibekwe who represented the Respondent on that occasion.  The Tribunal was rather hurrying on matters.  Miss Boase’s recollection is that the Respondent (and this appears to be accepted by the Respondent) gave a general denial of all the allegations of misconduct against her including the threats.  We have searched the Chairman’s notes of the evidence to see what cross-examination there was of either Applicant or Respondent in relation to the threats.  All we can find is that so far as the Applicant was concerned, she must have been asked about the threat because at the very end of her cross-examination the Chairman has recorded:

“My life was in danger.”

13.	We cannot see any question relating to this issue being put to the Respondent by Ms Boase.  There are something like three pages of typed notes and Miss Boase told us that the cross-examination lasted about an hour and half.  She also told us that she did cross-examine albeit briefly on the point, but at the end of the day there was no time for the parties to make oral submissions.  It was after 5 o’clock and the Employment Tribunal agreed to deal final submissions on the basis of written Skeletons that had been put in by both parties before the hearing.

14.	In a letter addressed to the Registrar, the Employment Tribunal and the Chairman Ms Jones, sought to answer matters raised by the President, and she did so, in conjunction with the members.  In response to a question as the nature and basis of the finding that the Respondent did not deny the allegation she made the threat, they say this:
“Paragraph 14 of the Appellant’s witness statements sworn on 22 September 2003 states that the Respondent’s claim that she discovered a plot where the Appellant threatened her safety if she were to leave the Respondent’s employment, and to return to Africa was nonsense.  The Appellant then goes on in that paragraph to state that it was nonsense because she was employed in the United Kingdom and any threat to her safety in Africa should not affect her employment here.”

15.	We interpolate that is not what paragraph 14 says:

“She also states as far as she was concerned the Respondent left her home and employment because of immigration matters nothing to do with any threat from her.”

  And we quote again:

“In her evidence in chief to the Tribunal, the Appellant did read the statement of 22 September 2003. The Tribunal’s findings in paragraph 26 of the decision reflect the fact that one did not take paragraph 14 of her witness statement as denying that she made a threat overheard by the Respondent. The tribunal took it she was disputing whether the threat was in relation to the Respondent’s safety in Africa as opposed to the Respondent’s safety in the UK.”

And they continued:

“This threat was considered by the Respondent to be the final straw and to constitute a fundamental contract (sic) so that she considered that she could no longer trust the appellant. The appellant’s response to this was to say that she denied the whole of the Applicant’s case. The sentence in paragraph 14 of her witness statement, as already discussed, says she denies making the threat and in any event, it was about the Respondent’s safety in Africa and not while she remained employed by her in the UK, so it should not amount to a breach of contract. In her live evidence to the tribunal, the Appellant said that the Respondent’s case was all lies and that she denied the whole case. She said nothing further about the threat that was made to the Respondent’s safety.”

16.	The President was concerned about this matter and considered that the information supplied by the Employment Tribunal was not satisfactory and therefore referred the matter for a full hearing.

17.	Our view of the matter is that there is only really one point in this appeal.  If the Employment Tribunal’s finding in relation to the threat that was made has to be set aside, it would follow that the case would have to be remitted for a re-hearing for the Employment Tribunal.

18.	Mr Keazor who appears on behalf of the Respondent has drawn our attention to the way in which this case was approached by the Employment Tribunal and has referred to the evidence which in his submission made it clear that the Employment Tribunal was wrong to assert that there was no denial by the Respondent of having made a threat.  He goes on to submit that as this is such a fundamental error of fact, it amounts to an error of law and following the Decisions in Piggott Brothers & Co Ltd v Jackson [1991] IRLR 309 and Yeboah v Crofton [2002] IRLR 634 (CA) in particular paragraph 95, the appeal must be allowed.  What Mummery LJ said in Yeboah v Crofton was this:

“Inevitably there will from time to time be cases in which an Employment Tribunal has unfortunately erred by misunderstanding the evidence, leading it to make a crucial finding of fact unsupported by evidence or contrary to uncontradicted evidence. In such cases the appeal will usually succeed.”

19.	Against that Miss Boase says that even if the Employment Tribunal’s decision was wrong there was ample evidence upon which it could find that the threat was in fact made.  True it is that part of its subsidiary findings of fact may be shown to be wrong but there was ample evidence before it that would enable the Employment Tribunal to conclude that the threat was made.  Miss Boase also sought to persuade us that the construction placed by the Employment Tribunal on paragraph 14 of the witness statement was the correct one.  We are not able to accept this because it seems quite clear to us that the Respondent throughout was denying any allegation of wrong doing including any allegation of having made a threat.

20.	We have considered this matter with considerable care and concern.  In our opinion Mr Keazor is correct in saying that the Employment Tribunal was wrong when it said that there was no denial of the threat.  However, and it is only right to say that my colleagues with their great Industrial experience have rather more confidence then I do in this matter, (although I agree with them) that nonetheless, it is crystal clear reading the Extended Reasons as a whole that the Employment Tribunal had ample material upon which to form a favourable view of the credibility of the Applicant and an unfavourable view of the credibility of the Respondent.

21.	There was ample material that justified the Employment Tribunal in concluding as it did that there had been various deductions from wages, compulsion on the Applicant to work additional hours, failure to pay her holiday pay, and failure to pay her wages.  There was in addition, material that justified the finding that the threat had in fact been made.  We recognise that the Employment Tribunal does appear to have fallen into error in part of its reasoning but nonetheless we do not regard that error as being sufficiently fundamental, looking at the Decision as a whole, to vitiate the findings.  Even if the Employment Tribunal had expressly stated that the Respondent denied the threat, it was, having regard to its other findings, especially those as the credibility of the parties, bound to find in favour of Ms Adjaho in relation to the threat.

22.	We repeat it is quite clear that the Employment Tribunal having considered all the evidence of the parties, their submissions and the documents before them, came to a clear conclusion on evidence that was available to them, that effectively the case put forward by the Applicant had been an honest and accurate case, and that put forward by the Respondent was not.  In those circumstances, we therefore consider that the appeal must be dismissed.