Appeal No.	EAT/1202/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 February 2000

Before
THE HONOURABLE MR JUSTICE CHARLES
MR L D COWAN
MR D J JENKINS MBE

(1) MR N KUMAR (2) MR T HUSSAIN	APPELLANTS

GRATTAN PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR D BROWN
(of Counsel)
Appearing under the
Employment Law Appeal
Advice Scheme	

	MR JUSTICE CHARLES:	This appeal comes before us today on a preliminary hearing pursuant to our practice direction.  The parties are a Mr Kumar and Mr Hussain who are the Appellants and Grattan Plc who are the Respondents before us and were the Respondents below.

1	The appeal is against a decision of an Employment Tribunal sitting at Leeds, the Extended Reasons for which were sent to the parties on 10 August 1999.  The Employment Tribunal dismissed claims by the Appellants for racial discrimination.  This is the second occasion that this appeal has come before us for a preliminary hearing.  On the last occasion the matter was adjourned for 14 days to enable the Appellants to put in evidence relating to one of the grounds of appeal upon which they rely.  We will return to that when dealing with that ground of appeal.

2	Our task today is to consider whether the appeal raises points of law that are reasonably arguable.  Our jurisdiction is limited to dealing with points of law.  It is not open, in this Tribunal, for Appellants simply to seek to re-argue facts.  

3	We therefore turn to the Notice of Appeal which is in the following terms, starting with paragraph 2:

“(2)  The grounds of my appeal are that the Tribunal wrongly directed itself in making its decision.  The decision reached was perverse, no reasonable Tribunal could, on the facts of the case, have reached such a decision.  The Tribunal has a legal duty to take account of all relevant and no irrelevant facts.  The Tribunal failed on such accounts, as stated below.”

4	Pausing there, that is a general assertion and the particular matters relied on in support of it are contained in paragraphs (3) through to (6) of the Notice which are in the following terms:

“(3)  In paragraph 7 of the decision it is stated that Jaspal had been subject to a pattern of harassment for about 3 years.  We the Appellants had not been employed by the Respondents for that amount of time, we had only been there for about 1½ to 2 years.
(4)  In paragraph 9 of the decision it is said that Mr Storrie put all the allegations to both Applicants.  It is also said in the same paragraph that ‘he readily concedes that he did not highlight to either Applicant his concerns about intimidation that factor was very much in his mind when he took the decision that both Applicants would be dismissed’.  The Tribunal failed to see that it’s not just or equitable to take someone through disciplinary procedures and/or to dismiss them without being told at any point why.  We the Applicants at no point were informed and/or questioned regarding the issue of intimidation, but nevertheless the Respondents claim to have dismissed us for it.  The Tribunal misdirected itself on such account.  No person, under the law of this land, should be tried and/or convicted without being told why.
(5)  The Tribunal also failed to see that one of the comparator’s case was much more serious.  That comparator intimidated one of his staff by coming in on the weekends, when he was not working but the girl (member of staff) that he sexually harassed was at work at that time.  The same comparator sent third parties to ask that member of staff (girl) why she had made the complaint against him.  The complaints against this comparator, of sexual harassment, were of a much more serious nature due to the fact that there was physical contact, he had pulled her towards himself and kissed her against her will.
(6)  In the light of all mentioned above the Tribunal reached a perverse decision.”

5	Before dealing with those grounds one by one, it is important to remind ourselves of the approach to Extended Reasons and their analysis by this Tribunal.  For example, in Hollister v National Farmers’ Union [1979] ICR 542 at 552H to 553D, there is a passage in a judgment of the Master of the Rolls, which cites from what was said by Lord Russell of Killowen in Retarded Children’s Aid Society -v- Day .  This passage is in the following terms:

“There is only one other matter to which I would refer.  In these cases Parliament has expressly left the determination of all questions of fact to the industrial tribunals themselves.  An appeal to the appeal tribunal lies only on a point of law:  and from that tribunal to this court only on a point of law.  It is not right that points of fact should be dressed up as points of law so as to encourage appeals.  It is not right to go through the reasoning of these tribunals with a toothcomb to see if some error can be found here or there – to see if one can find some little cryptic sentence.  I would only repeat what Lord Russell of Killowen said in Retarded Children’s Aid Society Ltd v Day [1978] ICR 437, 444:
‘I think care must be taken to avoid concluding that an experienced industrial tribunal by not expressly mentioning some point or breach has overlooked it, and care must also be taken to avoid, in a case where the Employment Appeal Tribunal members would on the basis of the merits and the oral evidence have taken a different view from that of the industrial tribunal, searching around with a fine toothcomb for some point of law.’
It does seem to me that in this particular case, if one does not use a toothcomb, if one looks at the findings of this tribunal broadly in accordance with what they have said, it is found that there was a substantial reason for this dismissal.  Not only was there a substantial reason, but in the circumstances of the case the employers acted reasonably in treating it as a substantial reason having regard to equity and the substantial merits of the case.  Therefore the dismissal was fair.”

6	In this context it is also relevant and important to remember the well known citation in the decision of Meek v City of Birmingham District Council [1987] IRLR 250 at 251, where Bingham LJ says:

“It has on a number of occasions been made plain that the decision of an industrial tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the tribunal’s basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts.  The parties are entitled to be told why they have won or lost.  There should be sufficient account of the facts and of the reasoning to enable the Employment Appeal Tribunal or, on further appeal, this court to see whether any question of law arises. ….”

7	Also (and I will not cite the passage) the decision of the Court of Appeal in High Table v Horst [1998] ICR 409 at page 420 E to F, where Peter Gibson LJ comments on the Meek case, is relevant.

8	With that background, both as to the limits of our jurisdiction and the approach to Extended Reasons, I return to the grounds of appeal.

9	The first ground is the assertion that the Appellants were only employed for 1½ to 2 years, whereas the Tribunal note that Jaspal had been the subject of harassment for a longer period.  We see nothing in this point and we note that it was not advanced orally before us.  The facts as to the harassment investigated by the employer and considered by the Employment Tribunal are not affected by any points taken in this respect.  Equally, as a general point there is no reason why somebody should not join in a campaign of harassment as and when they become an employee.  We accept that that was not the way in which the case was put against these Appellants but, in our judgment, there is nothing in this ground of appeal as a general or a particular point.

10	The next ground deals with what was put to the Appellants.  As to this ground, firstly when one reads the Extended Reasons as a whole it is apparent that some matters were not put to the Appellants before the first hearing but that it was found by the Employment Tribunal that this was for a sensible and reasonable reason, namely that there was evidence that the Appellants had been intimidating witnesses who would be called in respect of that grievance procedure.  Secondly this ground also fails to have regard to the fact that there was an appeal hearing which took place later and that is dealt with, particularly in paragraphs 13 and 14 of the Extended Reasons, which was a complete re-hearing at which all the allegations were put and dealt with.  Therefore, in our judgment, there is nothing in this ground either.  Again, this ground was not advanced orally before us.

11	The next ground is the one which gave rise to the adjournment.  This was initiated by this Tribunal, to give the Appellant an opportunity of placing before us evidence as to what was put before the Employment Tribunal to show that their finding was either perverse or not in accordance with the evidence or some other ground of appeal. In this respect I refer to the judgment I gave on the last occasion and, in particular, paragraph 6 of that judgment when I said this:

“We will also direct that in that period and by Wednesday week (9th February 2000) the appellants do put in an affidavit or perhaps, as it now should be described, a sworn statement, setting out the evidence that they say was before the Employment Tribunal to the effect that one of the comparators was accused of intimidation or that a finding of intimidation had been made by the employer (or others) in respect of one of the comparators. If the position is that no such evidence was before the Employment Tribunal, the sworn statement should also explain why this was not the case.”

As a result of that both Appellants have put in affidavits, the relevant paragraphs of which are paragraphs 4 and 5, where they say:

“I was dismissed on the allegations of sexually harassing and intimidating another member of staff.  My comparator, comparator B, was also accused of offences of the same nature whereas he was not dismissed but issued with a warning.  There is now produced and shown to me and exhibited herewith …. a true copy of the warning report form of comparator B.
This information was available to the respondents but it was ignored by them.  This information was presented to the Leeds Employment Tribunal at the time of the hearing, but it was overlooked.”

12	The exhibit is a Warning Report form and under the heading “Reason for Warning” it says this:

“Following complaints from members of staff we have reasonable belief you have been unintentionally sexually harassing and intimidating these members of staff. …” [and then it goes on]

13	It was argued before us that that provided evidence to show that the Employment Tribunal have not carried out their task properly, having particular regard to paragraph 16 of the Extended Reasons, which is in the following terms:

“16.  Comparator A and comparator B were found to be guilty of sexual harassment.  There was no evidence whatsoever, nor was it suggested that there was such evidence that existed that linked those comparators to the very serious intimidation carried out by the Applicants.  It is the intimidation which is the important distinguishing feature between the Applicants and the cited comparators and it is that distinguishing feature which justified the Respondent dismissing the Applicants and disciplining and retaining the services of the comparators.  The explanation given by the Respondent relating to Mr Kumar’s two additional complaints …” [and I need not carry on for the remainder of the paragraph]

14	What was argued before us was that the complaint form indicates that there was some intimidation and that the Employment Tribunal therefore have not adequately dealt with the matter.  When one has regard to the proper approach to Extended Reasons and remembers the nature of the intimidation, which was alleged against these two Appellants, which was intimidation in the sense of intimidating witnesses to prevent them, or to seek to deter them, from giving evidence at grievance procedures, it seems to us that it is apparent that the Employment Tribunal had sufficient evidence to reach the finding that they did, namely that these comparators were to be distinguished from the Appellants.  That was a finding of fact made by the Employment  Tribunal.  In our judgment it cannot be described as being perverse.  The Employment Tribunal plainly had evidence upon which to reach that finding and, indeed, and although it was not put in the additional evidence, we were told today that the Employment Tribunal heard evidence as to the nature of the allegations made against the comparators and the nature of the intimidation.  It seems to us plain when one reads the Extended Reasons, as a whole, that the Employment Tribuanal have treated the intimidation alleged against the Appellants, and which formed part of the reasoning of the Company, as being intimidation of a different type which warranted the Appellants being treated differently to the comparators.  We perceive no error of law in respect of that conclusion and therefore this ground of appeal raises no reasonably arguable point of law.

15	The final ground is a general allegation of perversity.  For the reasons we have given we see nothing in support of that ground.  

16	Accordingly this appeal is dismissed.