Appeal No. EAT/1430/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 31 May 2002

Before
MR RECORDER BURKE QC
MR P R A JACQUES CBE
MISS D WHITTINGHAM

MISS D STEWART	APPELLANT

HM PRISON SERVICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR P THORNTON
(of Counsel)
Appearing under the Employment Law Appeal Advice Scheme 

MR RECORDER BURKE QC

1	Miss Stewart appeals against the Decision of the Employment Tribunal at Liverpool, chaired by Mr Lloyd Parry and sent to the parties with Extended Reasons on 15 October of last year, dismissing her complaints that her employers, the Prison Service, had been guilty of sex discrimination and victimisation.  This is the preliminary hearing of her appeal.  

2	Miss Stewart was employed from 1992 in the Prison Service and at the material time was so employed at Her Majesty’s Prison at Risley.  She was still so employed at the date of the hearing before the Tribunal.  She claimed that her employers had discriminated against her and/or victimised her because of her complaints to them, in various ways, set out in three Originating Applications, all of which were heard together before the Tribunal in July 2001.  

3	The history as found by the Tribunal, can, for present purposes, be described very briefly.  Miss Stewart was absent from work on long term sick leave from about the beginning of 1999, or perhaps earlier.  In or about December 1999, a new Governor, Mr McConnell, appeared on the scene and decided that long-term sickness absences, on which there were a number of employees, needed tighter management.  He arranged for Miss Stewart to be medically reviewed as to her medical condition; the doctors were asked whether medical retirement was appropriate.  

4	On 14 June 2000, Miss Stewart claimed, she sent a letter to her employers saying that she was returning to work on 26 June.  The Tribunal found as a fact that no such letter was received.  On 16 June, Mr McConnell wrote to her, telling her that he intended to dismiss her.

On 26 June she presented herself for work; Mr McConnell refused to allow her to do so, until medically proved fit.  A month or so later, she was so proved fit, and was said to have recovered completely.  She was therefore allowed to return to work and the threat of dismissal was withdrawn, although Mr McConnell said that a recurrence of absence for serious illness would trigger a dismissal procedure again.  

5	Later in the year, Miss Stewart missed work to attend a hospital appointment.  The employers, by mistake, rostered her for work, and she was spoken to about her absence by a senior officer who was unaware of the mistake.  The Tribunal found that he had not spoken to her any differently than he had spoken to anyone else.  Miss Stewart sought special leave in respect of that day of absence; it was not granted and thus she lost a day of her holiday.  

6	In her first complaint, she complained that she had been the subject of direct discrimination in that the notice of intended dismissal involved a procedure to which others had not been subjected, in that she was not offered a phased return to work via light duties, and in that a medical was insisted upon before her return, although that had not been done in the case of male staff.  

7	Her second complaint was of direct discrimination and victimisation.  It related to Mr McConnell’s reservation of the right to move to immediate dismissal, should serious illness re-occur, when he withdrew the threat of dismissal on her return to work.  

8	The third Originating Application was a complaint of victimisation only, and it related to the employer’s treatment of her on the day of her appointment, and the refusal of special leave.  The Tribunal, in a very brief judgment, or decision, set out some findings of fact in paragraph 3.  In paragraph 4 the Tribunal concluded that Miss Stewart had been subjected to a detriment, at least in some of the respects raised by her complaints, although they do not seem to have covered all of them.  They then asked whether there was a difference based on sex, and concluded that there was, in relation to one of the complaints, but they do not, on the face of it, appear to have asked that question or, at least, answered it in relation to others.

9	The Tribunal do not, or at least arguably they do not, appear to have distinguished in considering the complaints made by Miss Stewart between those which were complaints of discrimination and those which were complaints of victimisation, and even if they had all been complaints of discrimination, the Tribunal, arguably, has not set out in its Reasons how they came to the conclusion that her claims failed in such a way as to enable Miss Stewart to know clearly why she lost, or for that matter to enable the Prison Service to know clearly why it won. Thus, arguably, this Decision is not, to use a conventional shorthand in this Tribunal, “Meek-compliant”.  It is clear to us that this appeal, put on those two bases, should go forward for a full hearing.  

10	Miss Stewart has raised, in her Notice of Appeal, one criticism of the Tribunal’s findings of fact, namely that the Tribunal did not state that her absence was derived from an accident at work.  We do not see any reason why the omission of that fact, if it indeed be a fact, makes any difference to the result which the Tribunal produced or achieved.  We do not think that creates any arguable ground of appeal.  

11	In her Skeleton Argument, Miss Stewart has put forward a series of further criticisms of the Tribunal’s findings of fact.  We do not think that any of those, either, constitute any arguable ground of appeal.  Miss Stewart, who is not familiar with the Tribunal procedure, will understand that the Tribunal below is the body which is charged with the task of finding facts, and this Appeal Tribunal can only consider attacks on those findings of fact if it can be said that those findings were perverse, or involved a failure to consider some relevant matter, or a consideration of some irrelevant matter, we do not see that any of these criticisms that Miss Stewart makes comes within those categories.  Therefore, were the matters in the Skeleton Argument to be part of the Notice of Appeal, we would not allow those to go through to a full hearing, nor should the one question of matter of fact which is raised in the Notice of Appeal go forward to a full hearing.

12	However, that is not the end of this matter.  Miss Stewart also complains that there were serious defects in the procedure which was followed in the course of the hearing, defects of procedure which went, it is submitted, to the justice and fairness of the hearing as a whole, and which may, arguably, indicate bias, or the appearance of bias.  

13	Miss Stewart has, in an affidavit, set out a number of criticisms of the procedure which was followed.  We do not think it arguable that any ground of appeal can be derived either from the conduct of the employers’ barrister or from the Chairman’s failure to check the behaviour or the conduct of that barrister, on which Miss Stewart relies; nor do we think that there is an arguable ground of appeal arising out of the allegation that the Chairman at one stage is said to have thumped the table and used the expression “For God’s sake” in telling Miss Stewart not to repeat what she had gone through before.  

14	However, there are more important points.  In the affidavit, and elsewhere, Miss Stewart complains that she was not allowed to read her witness statement and was not allowed to add to her witness statement by tying what the witness statement said in with the documents which had been put before the Tribunal, and adding to her witness statement where she though it helpful and necessary to do so.  

15	It also appears, from what Miss Stewart has said and from what her witnesses have said, that they were, in some way or another, not allowed to give any evidence.  What actually is alleged to have happened has been more clearly and helpfully expressed to us by Mr Thornton, who has represented Miss Stewart this morning, under the ELAAS scheme, and to whom we are extremely grateful for the clear and succinct way in which he has presented his arguments.  

16	What we are now told happened (and, of course, we have only heard one side of this matter) is that, at the beginning of the first day of the hearing, the Tribunal was presented with a series of witness statements on behalf of Miss Stewart, including her own, and a series of witness statements on behalf of the employers.  The Tribunal went away for some time to read them.  When the Tribunal returned, Miss Stewart went to the witness table but was not given any opportunity to add to or explain her evidence, or tie it in with the documents, and was immediately tendered for cross-examination.  

17	At that stage she did not complain about this, being unfamiliar with the procedure.  It is said that no explanation had been given to her as to how she could or should give her evidence, or as to what opportunity there was or was not for her to expand on her witness statement. While, as a free-standing criticism, the point that Miss Stewart makes that the Chairman did not brief her as an unrepresented applicant as to what procedure was going to be followed, might itself not be sufficient to erect an arguable ground of law, when one ties that in with the way in which the Applicant’s evidence was taken, as we have described it, it can be seen, perhaps, that there is an arguable issue as to whether or not the Tribunal fell into error.  

18	There is a further, and perhaps more substantial point.  Miss Stewart wanted to call, and for that reason put in, witness statements from three witnesses.  However, at the end of her evidence, without her having the opportunity to call those witnesses, it is said (and we repeat that we have only heard one side of this) that the Chairman then called on Counsel for the employers to present his side’s case.  Thus Miss Stewart never got the chance to call her witnesses; and their evidence was not given, either in chief or in cross-examination, orally.  There is nothing in the Decision to indicate that the Tribunal took into account at all the written witness statements that had gone in, which were, of course, not cross-examined to.  

19	At the end of the hearing, before final speeches, Miss Stewart asked whether she could now call her witnesses and ask them some questions.  The Chairman, it is said, said that she could do so, just before the luncheon adjournment, but after the luncheon adjournment, did not give her the opportunity to do so and invited Counsel for the employers immediately to proceed to his final speech.  Thus, Miss Stewart, it is said, never got the opportunity to call her witnesses.  

20	We have gone through this in some detail because it is important for this Appeal Tribunal, when it comes to look at this case later, to know what the material was that has been put before us.  Plainly, on what we have just described, there is an arguable case that the Tribunal fell into error by not permitting Miss Stewart to call her witnesses and not allowing them to be cross-examined.  That may or may not have been a disadvantage to Miss Stewart; sometimes witnesses do well in cross-examination, sometimes they do badly; but she wished to call them.  

21	For those reasons, both in relation to the matters which we have mentioned at the outset of this judgment, and in relation to the procedural matters which we have mentioned at the conclusion of this judgment, this appeal should go forward on those grounds to a full hearing.