Appeal No.	 EAT/780/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 31 January 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MR J R CROSBY
MR S M SPRINGER MBE

WRAPID PACKAGING SYSTEMS LTD	APPELLANTS

MISS C SALTER	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellants	MR STUART HILL
(Representative)
Peninsula Business Services Ltd
Riverside
New Bailey Street
Manchester
M3 5PB	

	MR JUSTICE LINDSAY (PRESIDENT):		We have before us by way of a preliminary hearing the appeal of Wrapid Packaging Systems Ltd in the matter Miss C Salter v Wrapid Packaging Systems Ltd. Today before us Wrapid, the appellant, has been represented by Mr Stuart Hill of Peninsula Business Services Ltd.

1.	On 22nd July 1999 Miss Salter claimed that she had been dismissed by Wrapid. On 23rd August 1999, a month and a day later, she presented an IT1 for constructive dismissal of the unfair dismissal kind and also for sex discrimination. Her complaints related chiefly to a Mr Jeff Clark and his style of management. She said:

“a)	through its Mr Clark [the company] has conducted itself in such a manner to destroy the relationship of trust and confidence between us through many incidents over a considerable period of time.
b)	through its Mr Clark [the company] have deliberately without just reason singled me out for inferior and detrimental treatment together with harassment and were doing so wilfully, maliciously, arbitrarily, capriciously and inequitably.”

	I should say that she was an employee of some long-standing, having, so far as she claimed, been employed since 1985.

2.	On 17th September 1999 the employer lodged its IT3. In broad terms, it countered Miss Salter’s allegations. It said there had been an investigation of complaints made by Miss Salter against Mr Clark. It said:

“At the end of the investigation, the Finance Director wrote to the Applicant indicating that the allegations of direct and indirect discrimination by Mr Clark was unproved on the grounds of insufficient evidence.”

	and it said:

“The Respondents would deny that their behaviour has been such as to fundamentally breach the Applicant’s Contract of Employment. They also deny that they failed to support her throughout the period of harassment or as alleged or that they failed to deal with her grievance fairly.”

	That is by no means all of the accusation and the rebuttal of the accusation but it gives some flavour of the sort of case that was going to take place.

3.	There was then a hearing at the Employment Tribunal as to liability only. On 20th January 2000 there was a liability decision that Miss Salter had been unfairly dismissed on 22nd July 1999. A remedies hearing was accordingly arranged. There was no appeal, as far as we understand it, against the liability decision.

4.	On 27th March 2000 there was a hearing as to remedy. On 4th May 2000 the remedies decision was sent to the parties. It was the decision of the Employment Tribunal at Leeds under the chairmanship of Mr I K R Brown and the unanimous decision of the tribunal was:

“… that the respondent shall pay compensation to the applicant in the sum of £12,983.00.”

	Extended reasons were given.

5.	A few days later, on 8th May 2000, Wrapid asked for the decision to be reviewed. Before the decision on review was clear, on 5th June 2000 Wrapid lodged a Notice of Appeal. On 12th September 2000 there was the hearing of the review application. The decision on the review was again unanimous and it was that the application for a review was refused but a certificate of correction was issued altering the amount of compensation to be paid to the applicant to £12,746.87. So there was a relatively minor adjustment reducing the sum payable to Miss Salter.

6.	It seems that the decision and extended reasons on the review application were sent to the parties under a notice of correction of 19th October 2000. 

7.	The position then was that it was only the Notice of Appeal that offered any recourse to Wrapid.

8.	The Notice of Appeal first raises a point that the computation in the uncorrected extended reasons needed correction and that a credit should have been given to Wrapid for the sum of money it had paid; but that point had, in effect, been met by the certificate of correction and no longer features as an issue between the parties on the appeal.

9.	The rest of the Notice of Appeal and the appellants’ skeleton and Mr Hill’s oral argument concern themselves with an attack upon the ascription by the Employment Tribunal of the conduct of the employer as having been the reason for Miss Salter not working for quite a while after she had been dismissed. It is to be remembered that the compensatory award under section 124 of the Employment Rights Act 1996 compensates a claimant only for such loss as is sustained by the complainant in consequence of the dismissal, in so far as that loss is attributable to action taken by the employer. So one has to look at a causal link between the action taken by the employer and the loss claimed. 

10.	Now this point was plainly before the Employment Tribunal at the remedies hearing. In their paragraph 3 they say:

“… the respondent submitted that no further compensatory award was appropriate since any loss of earnings resulted from the applicant’s pregnancy, following confirmation of which she ceased to look for other work, and was not in consequence of the dismissal or attributable to action taken by the respondent.”

	In their paragraph 5 they say:

“… On 21 July 1999, which was the day after she received the result of her grievance complaint and the day before she resigned, the applicant visited her doctor and was again certified sick with a stress related disorder. On the evidence it has heard and read in the course of this case the Tribunal is left in no doubt that the applicant’s illness resulted from her dismissal and its attendant circumstances.”

	They said in their paragraph 6:

“In late July and early August the applicant applied unsuccessfully for 2 or 3 jobs vacancies. On 14 August it was confirmed that she was pregnant. The applicant stopped looking for work. We accept the applicant’s evidence that her doctor advised her that she should stop looking for work “after everything you have been through”. We also accept the evidence in the letter dated 10 March 2000 from the applicant’s doctor, which states that the doctor felt that it was the stress, rather than the pregnancy which was precluding you [the applicant] from being fit to look for other work.”

	So it was an issue that was plainly ventilated before the tribunal and one upon which they came to a finding. The tribunal looked at what Miss Salter had said at the earlier liability hearing because a plank of the company’s argument had been that there was such a difference between what she had sworn to at the liability hearing and what she was swearing to or denying at the remedies hearing that it affected her credibility generally and that it could not be found by the tribunal that her inability to work for a period was related to the conduct of the employer. But that is a matter which the tribunal thoroughly looked at. They said in their paragraph 7:

“We have considered carefully the submission of the respondent’s representative that any loss of earnings are attributable to the applicant’s pregnancy and not to the dismissal or any action taken by the respondent. We have read again paragraph 18 of the applicant’s statement, which was given in evidence at the earlier hearing and to which the respondent’s representative has referred us in support of his submission. The applicant had stated: “…. shortly after resigning I became pregnant, and I was advised by my doctor because of my previous medical history not to rush into anything and to take my time to avoid another miscarriage.” We do not find that statement in conflict with the evidence we have accepted and the findings we have made in paragraph 6 above. The Tribunal has concluded on all the evidence that but for the dismissal and its attendant circumstances the applicant, who had 14 years service with the respondent, would have continued working for the respondent after the birth of her baby, due on 7 April 2000, and following the full extent of her maternity leave.”

11.	The appellant today by Mr Hill criticises, firstly, the Employment Tribunal’s reliance upon the doctor’s letter; secondly, the failure to give more weight to what Miss Salter had said at the liability hearing and failure to give adequate weight to the alleged contradiction between the two versions; thirdly, there is a complaint that a prolonged inability to work had not been mentioned in her IT1; fourthly, that the Employment Tribunal should have explored more fully than it did that she had been in receipt of incapacity benefit and should have looked into why it was that she was receiving incapacity benefit and here also complained that medical certificates should have been demanded from Miss Salter and examined by the tribunal.

12.	As to what the IT1 had said, Employment Tribunals generally and rightly are flexible about allowing matters which are not “pleaded” to be ventilated before them, as long as there is a fair opportunity given to the other side to challenge whatever is being alleged. Moreover here the IT1 was only a month and a day after the dismissal, so it could not reasonably be expected to have dealt in any detail with the long-term position as to consequences of the dismissal. Further, so far as one can tell, no objection to Miss Salter’s evidence or argument, nor any application for an adjournment to meet it, was made. So there is nothing in the argument that the IT1 had not mentioned any prolonged inability to work.

13.	As to the rest of the Notice of Appeal and the skeleton argument, as it seems to us it misunderstands the position of the Employment Appeal Tribunal. The skeleton argument in its paragraph 7:

“In truth [the tribunal] had insufficient evidence before it to decide that it was the actions of the Appellant employers, which caused her not to be in a position to look for or obtain work after her resignation from the company. …”

	But whether the evidence which a tribunal receives is sufficient for a particular conclusion is very much a matter for the Employment Tribunal itself as a matter of fact rather than one of law, unless one gets to the stage that no tribunal properly instructing itself could have concluded as it did on the evidence which it received. If there is any evidence that can be taken properly to support the tribunal’s conclusion, that suffices to deny the existence of a point of law. The matter, when that is shown, is not one of the absence of evidence but as to its sufficiency and that is a matter of fact left to the judgment of the Employment Tribunal. Here, as it seems to us, it is impossible to argue that the tribunal had no evidence whatever to support the conclusion it arrived at. It had oral evidence from Miss Salter; it apparently had oral evidence from her partner, it had evidence of her being certified sick with a stress related disorder and it had the doctor’s letter of 10th March 2000. How far such evidence was undone, if at all, by what Miss Salter had said at the earlier liability hearing, is a matter, largely one of credibility, which is entirely a question of fact for the Employment Tribunal. It was considered by the tribunal and they held, in effect, in her favour and we cannot say that they were not entitled to do so. 

14.	So far as concerns medical certificates, the Employment Tribunal said that:

“… Each party produced a bundle of documents …”

	If medical certificates were not in the bundle, then Wrapid could have applied that they should be. There is no suggestion that it did so at the time. Perhaps that was because, so far as one can tell from the tribunal’s review decision, that they had already been produced. What the tribunal said in paragraph 11 of their review decision is this:

“The tribunal is satisfied that the evidence it heard and read during the course of the hearings was sufficient and appropriate to enable it to clarify the issues and reach the conclusion it did concerning the applicant’s stress related illness and the loss of earnings which it held to be sustained by her in consequence of her dismissal and attributable to action taken by the respondent. This evidence included [and the word included suggests that there might be other evidence] the evidence given by the applicant, by Mr Orme, Dr Trevor’s letter of 10 March 2000, the applicant’s letter of resignation dated 22 July 1999 and the medical certificates included in the respondent’s bundles of documents.”

	If the Employment Tribunal felt, as it plainly did, that there was material enough for its conclusion, there was no error of law on its part in failing to require further documentation. 
	
15.	As for incapacity benefit, it was not as if it was hidden as a point from the Employment Tribunal. The appellants’ own skeleton says in its paragraph 8:

“… At the Remedy hearing on numerous occasions the Appellants representative expressed his view as to the relevance of the letter of the Respondents Doctors practice, the fact that Incapacity Benefit requires a form to be completed by the applicant stating what her incapacity is and also the fact the benefit is supported in the first 28 weeks by the provision of Medical certificates and that these independent documents would clarify why the respondent employee was incapable of working or looking for work following her resignation.”

	So it is quite plain that the point was mentioned to the tribunal. Of course, the fact that she was receiving incapacity benefit does not prove or even suggest that the incapacity was not related to the dismissal. The employer’s representative was free to cross-examine her as to incapacity benefit. If the doctor’s certificates were part of the respondent’s bundle, as the passage we have read from the review decision suggests, then there was material on which to cross-examine her. If they were not, then there could have been an application for them and for an adjournment in order to consider them. But the tribunal at the review decision said that that was not sought. In paragraph 10 of the review decision they say:

“Dealing with the respondent’s contention that the tribunal should have ordered that the applicant provide further medical evidence before making its award of compensation (referred to in paragraph 7 above), the tribunal is aware that it has powers (under Rule 4 of the Regulations) to require further particulars, grant discovery or require attendance of witnesses of its motion or on the application of a party. However, particularly when they are represented, it is the parties’ responsibility to ensure that relevant evidence is adduced. No such application as that referred to above, nor any application for an adjournment for time to consider the matter further, was made on behalf of the respondent at the remedy hearing or at any other time.”

	It would be irrelevant for us to consider whether Miss Salter was not fortunate in the computation and whether we would have decided as the tribunal did; those are not questions that properly arise. Plainly the Employment Tribunal had some evidence on which it could conclude, as it did; the tribunal is the master of fact. The appellants’ complaints are truly ones of fact. Given that there was some evidence for the tribunal to conclude as it did, no perversity of the Wednesbury kind, which Mr Hill asserts, did in fact arise in our view. 

16.	Mr Hill has taken us to the case of W v Special Educational Needs Tribunal and another Times – 29th November 2000; that case does not assist us. It was a case where a tribunal, not an Employment Tribunal, received information (in the sense that its clerk received the information) which information then stopped short at the clerk and did not get forward to the members of the tribunal. There is no parallel at all with our case.

17.	Accordingly, seeing no arguable error of law in the matter; we must dismiss this even at the preliminary stage.