Appeal No. EAT/0480/01

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT COURT NO 73, THE ROYAL COURTS OF JUSTICE
THE STRAND, LONDON WC2A 2LL

	At the Tribunal
	On 26 September 2001

Before
HIS HONOUR JUDGE D SEROTA QC
MR W MORRIS
MRS D M PALMER

MRS C E CULLEN	APPELLANT

(1) LONDON BOROUGH OF HOUNSLOW (2) MR R AKIBO-BETTS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR M JONES
(Solicitor)
Appearing under the 
Employment Law Appeal
Advice Scheme	

JUDGE SEROTA QC

1.	This is a preliminary hearing of an appeal by Mrs Cheryl Cullen from a decision of the Employment Tribunal sitting at London South chaired by Mr Snelson which was promulgated on 28 February 2001.

2.	The Tribunal dismissed her claims in relation to sex discrimination and unfair dismissal.  Mrs Cullen was employed from we think about 1996 as a parking attendant by the first respondent the London Borough of Hounslow.  In September 1999 she was evidently going through a difficult personal situation and one of her colleagues Mr Akibo-Betts, who is the second Respondent had a significant amount of contact with her.  She alleged before the Tribunal that his conduct in the month of September 1999 amounted to direct discrimination for which his employers the London Borough of Hounslow, was responsible.  We should note that as early as April 1999 Mrs Cullen had been looking for other jobs and had sought a job in the Prison Service.

3.	On 28 September she complained to her superiors at the London Borough of Hounslow about the conduct of a colleague Mr Akibo-Betts, and she alleges that the London Borough of Hounslow failed to act properly on her complaint.  She gave notice on 15 November 1999, and asserts that she did so in circumstances amounting to a constructive dismissal.  Although she was at that time was off sick and continued to draw sick pay, she nevertheless began work on 22 November 1999 training with the Prison Service and thus for some period of time she was both drawing sick pay from the London Borough of Hounslow and was also being paid by the Prison Service.  The Tribunal found the London Borough of Hounslow was unaware of this arrangement.

4.	Mrs Cullen’s application to the Employment Tribunal was dated 17 December 1999 and it was heard over a 5-day period beginning on 8 January.  We have already mentioned that the Extended Reasons were promulgated on 28 February 2001 and a notice of appeal was lodged on 3 April.  It is quite clear to us that the Employment Tribunal correctly directed itself in relation to what amounts to sex discrimination.  Equally they correctly directed themselves properly in relation to constructive dismissal.

5.	They then went on to consider the evidence upon which Mrs Cullen based her claim.  It is essential that we stress that our role as the Employment Appeal Tribunal is to consider matters of law.  It is not our function to reconsider, nor can we reconsider, questions of evidence.  Questions of evidence are essentially matters for the Employment Tribunal which has the benefit of hearing and seeing the witnesses.  They are able to observe the witnesses being questioned, to note their answers and their demeanour.  The Tribunal is then able to come to a conclusion as to their credibility and in some cases their veracity and credibility.  The Employment Appeal Tribunal has no such opportunity or function.

6.	While we recognise that in this case before the Employment Tribunal there were reasonable arguments for Mrs Cullen to say that her evidence should be accepted, at the end of the day on all the significant points of the case the Employment Tribunal found against her.  Thus we find they reject as untrue a number of the allegations that she made.  For example they found it was simply untrue, as Mrs Cullen had claimed, that Mr Akibo-Betts had invited her out for dinner.  They also found that her allegation, which was made in various ways, that Mr Akibo-Betts had put his arms round her, was unjustified and they rejected her evidence that he had invaded her space and come needlessly close to her.

7.	The Tribunal found that Mrs Cullen was consciously and deliberately wrong to allege that on two occasions Mr Akibo-Betts had told her he loved her.  They found that he had said no such thing.  They rejected an allegation that Mr Akibo-Betts had stood behind her under the pretext of attempting to read a colleague’s newspaper and leered at her.  That allegation was described as being “simply false”.  The Employment Tribunal rejected Mrs Cullen evidence that she complained to Mr Halton about Mr Akibo-Betts on 27 September.  They rejected the allegation that Mr Akibo-Betts demanded she get into his van on 28 September.

8.	They also (and we refer to paragraphs 16-23) rejected her evidence as to demanding that Mr Akibo-Betts stopped telephoning her.  The Tribunal found the request was not made until 28 September.  They mentioned the fact that she had taken a job in the Prison Service without notification to the London Borough of Hounslow.  They rejected her evidence and found in favour of Mr Akibo-Betts on other matters, as set out in paragraph 20 of their decision.  They found that Mr Akibo-Betts, although in some respects an inaccurate witness whose evidence was treated with scepticism and caution, impressed the Tribunal as someone who recognised and attempted to abide by his duty to tell the truth.  This was not something they were able to say of Mrs Cullen.

9.	The Employment Tribunal roundly rejected Mrs Cullen’s evidence in strong terms in just about every case in which  it was contradicted by the evidence of other witnesses.  We can understand that Mrs Cullen feels that it was unfair of the Tribunal to take such a critical view of her evidence as she no doubt still considers that her evidence was true and accurate.  Nonetheless, as we have said the decision on the facts is not ours.  It is one for the Employment Tribunal and we cannot see anything in their Extended Reasons that comes close to a misdirection or misapplication of the law.  Therefore there is no point of law raised in this appeal which is fairly arguable or which has any chance of success.  In those circumstances while we have some sympathy for Mrs Cullen’s position we must reject this appeal.

10.	We wish to express our gratitude to Mr Jones (who appears under the ELAAS Scheme) for his assistance.