Appeal No. EAT/0703/00/EAT/0704/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 31 January 2002

Before
THE HONOURABLE MR JUSTICE BELL
MRS T A MARSLAND
MR K M YOUNG CBE

HARRIS DA SILVA AND MR A CHRISTODOULOU	APPELLANT

MRS M WALLIS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	Mr T Kibling
(of Counsel)
Instructed By:
Harris Da Silva
Solicitors
and Andrew 
Christadoulou	
For the Respondents	Ms C Edmonds
(Solicitor)
Instructed By:
Mrs M Wallis	

THE HONOURABLE MR JUSTICE BELL
1.	These are appeals by Harris Da Silva and Andrew Christodoulou, the first and second Respondents before the Tribunal, against the decision of the Employment Tribunal sitting at London (North) on the 13th to 17th March 2000.  The decision which was sent to the parties on the 12th April 2000 was that the Appellants had unlawfully discriminated against Mrs Michelle Wallis, the Applicant before the Tribunal, by reason of her sex; that the first Respondent Harris Da Silva had victimised her by reason of her sex, and that she was unfairly dismissed for assertion of statutory rights, but that she was not unfairly dismissed on the grounds of her pregnancy, and that her claims for unauthorised deductions from wages should be dismissed.  

2.	The Grounds of Appeal include various charges directed at the Tribunal’s decision, including an allegation of perversity in respect of certain of its findings, but the most fundamental ground of appeal is that the extended reasons given for the Tribunal’s findings and therefore its decision were inadequate.  All the parties are in agreement that the appeal should be allowed on that ground and that the claims made by Mrs Wallis should be remitted to a freshly constituted Tribunal, which is what the parties propose today.  As we agree that that is the appropriate answer to this appeal, the matter can be taken quite shortly.  

3.	The first Appellant is a firm of Solicitors and the second Appellant was and for all we know still is an Associate Solicitor there.  Mrs Wallis was another Associate Solicitor working in the same office.  She alleged that the second Appellant made inappropriate sexual advances to her, in particular giving her lingering hugs and a lingering kiss to her neck and making inappropriate remarks.  She complained about that and other matters and she was dismissed.  By then she was pregnant.  Significant parts of the evidence were in issue between the parties.  On a number of those, the Tribunal clearly found in Mrs Wallis’ favour, but merely stated the facts as recounted by her and by a witness or witness called in her support.  That applied for instance to the question of the alleged lingering kiss by the second Appellant to her neck and to the question of comments which were alleged to have been made.  

4.	The Tribunal simply expressed its finding that there was a causal connection between her complaint of sex discrimination and her dismissal and that she was also dismissed for asserting her rights in other ways.  The extended reasons generally, so far as the facts are concerned, consist of a narrative account of various events.  Clearly that narrative account involved accepting the evidence of the Applicant and in important instances rejecting that of the Appellant’s, but the Tribunal did not say why it was driven to take that course.  

5.	It was in our view no explanation or no sufficient explanation to say, for example in respect of the alleged lingering kiss or lingering hugs with a sexual connotation, that the Tribunal accepted the evidence of the Applicant and her witness in corroboration, or that there was corroboration of subsequent comments from others.  Even less was it an explanation to say that the Tribunal accepted the Applicant’s account of discussions with Mr Da Silva or to say that the Tribunal was satisfied that there was a causal connection between complaints of sexual discrimination and dismissal, or simply to find that Mrs Wallis was dismissed for other complaints also.  The particular need for an adequately reason judgment in discrimination cases was stressed by the Court of Appeal in Anya against the University of Oxford 2001 ICR 847.  Mere acceptance of the account of one party in preference to that of others is in our view insufficient in a hotly contested case such as this.  

6.	The Tribunal must explain, however shortly, why it has preferred one account to the other. That applies in both directions in this case.  In one instance the Tribunal stated barely that it preferred the evidence of Mr Da Silva to that of Mrs Wallis.  Reference to the presence of corroborative witnesses, without more, raises the possibility of head counting; two witnesses against one on a particular issue being decisive.  Having read the terms of the extended reasons in this case, we agree that the Tribunal’s reasons for its decisions as expressed in its Extended Reasons were inadequate for lack of explanation of why in relation to particular matters it preferred the evidence of one side rather than the other.  

7.	We agree that the appeal should be allowed on that basis, so there is no need to address other grounds of appeal.  Mrs Wallis’ complaint should be remitted to a freshly constituted Tribunal for consideration and decision and we agree, as the parties agree, that all issues however previously decided in favour of whichever party are in play upon the re-hearing.