Appeal No.EAT/1321/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 May 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MS J DRAKE
MRS R A VICKERS

MR R MACPHERSON	APPELLANT

MRS A DEAN	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED	

MR JUSTICE LINDSAY (PRESIDENT)

1.	This is a Preliminary Hearing of the Appeal of Mr MacPherson in the matter Mrs Dean v Mr MacPherson.  Mr Middleton of Counsel is here under the ELAAS Scheme but one of the rules of that scheme is that the ELAAS representative for the day will not address the Court as if instructed by an Appellant unless the Appellant has turned up and met the ELAAS representative and unfortunately Mr MacPherson has not turned up.  Mr Middleton had some contact with Mr MacPherson that suggests that Mr MacPherson has thought that he ought to be in Leeds.

2.	However, we are not able to regard that as a sufficient reason for not dealing with the case now because it has been made quite clear to Mr MacPherson and in correspondence that the application has not only been listed here for today, 4 May, but that, in response to an earlier application that it should be postponed, that it should not be postponed and that the hearing would therefore proceed today.  The letter to Mr MacPherson is headed as one would expect, giving the name and address of the Employment Appeal Tribunal and we see no reason why Mr MacPherson should not have taken steps to be either present or represented here today and accordingly we go ahead in his absence.  The case therefore has been that Mr Middleton has been unable to address us on Mr MacPherson’s behalf.

3.	On 5 July 1999 Mrs April Dean, who had been a hotel duty manager, applied to the Employment Tribunal for constructive dismissal, sex discrimination, automatic unfair dismissal related to pregnancy, equal pay, breach of health safety regulations and wages.  In each case the Respondent was Mr Robert MacPherson of the Manor Hotel at Headingley.   

4.	Mrs Dean had been employed at the hotel from November 1997 to 15 June 1999, in other words for less than two years.  She had become pregnant in July 1998 and had told that to her then employer.  Mr MacPherson, it seems, bought the hotel and became her employer in or around August 1998.  In her IT1 Mrs Dean said:

“I began maternity leave just after the Christmas holiday still in the belief that I would be returning to work on new hours and with a pay rise.”

Her baby was born on 20 June 1999 and her IT1 continued:

“When asked what we were going to do Robert (that is Mr MacPherson) declared that he could only offer me my old hours and salary.”

A little later:

“He also offered me a new contract which would place me on a 6 month trial period.”

Later still she said:

“My solicitors entered into correspondence with my employers.  The response they got was an insistence that I could return to work on the same shifts as before (including overnight).  The health and safety issue, the right to suspend on full pay, the trial period and the equal pay issues were never addressed.  My solicitors wrote to my employers informing them that because of the treatment I had received since my pregnancy and maternity leave I had been discriminated against because of pregnancy and because I could not return to work on night duties.  I was left with no alternative but to treat myself as constructively dismissed.  I would like to finish this statement by adding that I feel I have been the victim of discrimination both concerning wages and having a baby.”

5.	Mr MacPherson in his IT3 said:

“Mr MacPherson will say that he is surprised that April Dean has formed the view that she would return to her employment on different hours and with a pay rise.  He fully accepted and supported her maternity leave provision, however, the size and economic resources of the business make it impracticable for any member of staff to dictate their hours of availability.

When a meeting was arranged with April Dean, following the birth of her child, Mr MacPherson informed her that she was welcome to return on the same terms and conditions she had previously enjoyed.  At no time was she offered an alternative contract, nor did there take place any discussions on the “new arrangements” to which she refers.”

A little later he says:

“On the other hand, Mr MacPherson will say that at all times up to her resignation, April Dean was expected to return to her job and work on the same terms and conditions as she had previously.”

6.	So one can see how the matter was limbering up and on 17 December 1999 a liabilities decision was sent to the parties.  It was held there had been unfair dismissal and sex discrimination and that a remedies hearing was necessary.  We have not got the papers relating to that liability decision in front of us but either there was no appeal or certainly no successful appeal has been drawn to our attention and so whatever was then found has to be regarded as a subject which cannot now be changed by MacPherson.

7.	On 6 September 2000 there a remedies hearing at the Employment Tribunal and on 2 October the decision, which was that of the Tribunal at Leeds under the chairmanship of Mr I K R Brown, was sent to the parties.  It was:

“The unanimous decision of the Tribunal is that the Respondent shall pay compensation to the Applicant in the sum of £4,560.83 plus interest of £248.74, totalling £4,809.57.”

8.	On 11 October Mr MacPherson lodged a notice of appeal.  On 14 January he applied to the Tribunal below for a review.  On 26 January the chairman declined the review on the ground that it had no practical prospect of success.  On 22 March Mr MacPherson wrote to the Employment Appeal Tribunal as follows:

“It is my understanding that the Decision reached by the Employment Tribunal was dependant upon the outcome of a case which was before the European Court of Justice (ECJ) and therefore the Judgement against me was conditional.

It may be that I have not understood the position fully, but having regard to the outcome of the ECJ case, I am firmly convinced that April Dean’s claim was destroyed by that Decision.  I therefore believe there is no basis on which I would have to pay her damages.

It is my clear understanding that the ECJ had undermined the Decision of the local Tribunal, so the Conditional Judgement has to fall because of the ruling of a higher Court.

I therefore look forward to the Tribunal’s response.”

9.	On 27 April he wrote again, this time in handwriting, to the Employment Appeal Tribunal and he asked for an adjournment until the implications of his earlier letter had been considered.  On 1 May, as we touched on at the outset, the Employment Appeal Tribunal wrote to say that the case was going ahead today.

10.	Nowhere does the Employment Tribunal say that it was considering some particular decision of the European Court of Justice or that its decision was conditional upon some case at the European Court of Justice and Mr Middleton has assisted by saying that, when enquiring of Mr MacPherson what the case was to which he was referring, Mr MacPherson said he did not know the name of the case.

11.	It is important to remember that the appeal is only against the remedies decision; the liability decision had already been made earlier, as we have mentioned.  Mr MacPherson raises three grounds.  The first is this:

“Since the date of the Tribunal, it has come to my attention that April Dean did not disclose to the Tribunal that she did in fact obtain a job in May last year and the reason for the non-disclosure of this job was primarily in order to obtain a higher settlement from the Tribunal.

As I understand that this job was based in Yeadon – Leeds 19, the fact that she showed to the Tribunal a number of job applications which, she claimed, she had been unsuccessful in obtaining, does, perhaps, make a mockery of both the Tribunal and indeed the amount of money awarded to Miss Dean.”

12.	On the face of things, there was no reason to assume that evidence of a job in May 1999 or even May 2000 could not have been given to the Employment Tribunal at the hearing in September 2000 had due diligence been applied to its collection.  There has to be finality in litigation and the test as to the late introduction of evidence after judgment is a strict one and is generally taken to be the test in the case called Ladd & Marshall.  The post judgment evidence has to be shown to be such that it could not have been obtained even if due diligence has been applied by the time of the original hearing (here September 2000).  Secondly, that it needs to be shown that it could have well have had a significant impact on the outcome of the case and, thirdly, it has to be seen to be likely to have been credible.  Even if, upon making assumption in Mr MacPherson’s favour as to two of those three, we were satisfied as to them, there is no attempt on Mr MacPherson’s part to demonstrate, as he would need to demonstrate, that the evidence could not have been obtained even had due diligence been applied in time for the hearing in September 2000 and so, no such case having been made out, there is no arguable error of law in this part of the case.  The second head of argument is this:

“Since the decision was made in September, I am led to believe that Miss Dean has contacted the hotel and its employees on a number of occasions.  Comments have been made to staff about possible redundancy in the light of April “winning” the case.  Further comments have been made to staff about the possibility that the hotel will now have to be sold and it is obvious that such “gloating” has been most upsetting to my staff.  Is it, therefore, within the Tribunal’s powers to take account of this and perhaps make the award of money dependent upon Miss dean signing an exclusion order keeping her away from both the hotel and my members of staff.”

13.	That discloses no arguable error of law on the Employment Tribunal’s award in this case.  The terms on which Mr MacPherson is to pay Mrs Dean are a matter for the Employment Tribunal.  The Employment Tribunal prescribed no particular terms and so there is no appeal possible against terms that were not made.  The third ground is this.  Mr MacPherson says:

“It is simply not within the financial capability of the hotel to pay such a significant amount of money, indeed the management accounts available to the Tribunal on the 6th September 2000 clearly show that the hotel is currently running at a loss.”

14.	The Tribunal heard evidence that the hotel was being run at a loss and, indeed, they specifically refer to that allegation and make a finding.  The Respondent’s inability to pay goes to the question of recovery, not of liability or remedy, and this third ground, as it seems to us, discloses no arguable error of law.  Having now attended to each of the grounds which Mr MacPherson wishes to argue and having found no arguable error of law in any of them, we must dismiss the appeal.