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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Smith v. Southwick & Ors [2001] UKEAT 526_01_1110 (11 October 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/526_01_1110.html Cite as: [2001] UKEAT 526_01_1110, [2001] UKEAT 526_1_1110

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APPEARANCES

 

For the Appellant	MR P MILLER (of Counsel) Instructed by: Messrs Ivesons Solicitors 19 Bowlalley Lane Kingston upon Hull HU1 1YL


 


JUDGE PETER CLARK

1. The Hull Racial Equality Council (REC), set up to combat racial discrimination in the Hull area, was initially funded by the Commission for Racial Equality and later by Hull City Council. It was at the relevant times a club, controlled and managed by the Management Executive Committee (MEC) of which Mrs Smith, the Appellant before us, was the Chair. Messrs Jarvis and Castleton, Hull councillors, were also executive members of MEC. Mohammed Mahi-Uddin was Director of the REC. Ms Southwick and Mrs Beech were employees of the REC.
2. In January 1998, Ms Southwick brought sex discrimination proceedings in the Hull Employment Tribunal against the REC. Following a hearing, during which Mrs Beech gave evidence on her behalf, her complaint was upheld by a Decision dated 1 March 1999 and by a subsequent remedies decision dated 17 August 1999 she was awarded compensation of £13,732.92. That was not the end of the matter. By further Originating Applications presented on 1 March 1999 among other things, the two Applicants Ms Southwick and Mrs Beech brought claims of victimisation under the Sex Discrimination Act against (1) Mrs Smith (2) Mr Jarvis (3) Mr Castleton (4) Mohammed Mahi-Uddin (5) Hull REC.
3. Initially all five representatives instructed Peninsula Business Services to act on their behalf and Peninsula entered a Notice of Appearance on their behalf and continued to act until 21 September 1999, when that representative came off the record.
4. On 18 October 1999 the REC ceased to function. It had run out of funds.
5. On 1 November 1999 a directions hearing took place at Hull before Mr Peter Hildebrand. On that occasion Mr Jarvis, the second Respondent, appeared and said that he attended with the knowledge and approval of Mrs Smith (the first Respondent) and Mr Castleton (the third Respondent). On that occasion it was directed that the substantive hearing of the new victimisation claim would be fixed for 17 - 21 January 2000.
6. On 17 January none of the Respondents appeared or were represented. The case proceeded over three days before a Tribunal chaired by Mr Keevash and the complaints of victimisation were upheld and substantial compensation ordered against the first to the third Respondents and the REC. That Decision, with Extended Reasons was promulgated on 22 March 2000.
7. Each of the first three named Respondents professed to have no knowledge of the hearing until contacted about the result by the local press. They applied for a review.
8. A review hearing took place before the same Tribunal over four days (save that one lay member dropped out due to illness on the last day) on 21 August, 16 and 17 October 2000 and 8 January 2001.
9. Having heard the three Respondents give evidence the Tribunal did not believe their protestations that they were unaware of the hearing in January. In particular the Tribunal found, at paragraph 15 of their Review Decision Reasons, promulgated on 19 February 2001, that the Appellant, Mrs Smith, was well aware of the proceedings fixed for 17 January 2001. They found that she was evasive as to her knowledge of what happened at the 1 November directions hearing, having initially said in evidence that she did not ask Mr Jarvis to keep her informed and that he did not tell her about the directions hearing. Later, when asked to reconsider that answer, she said that she may have had a brief report from Mr Jarvis, but denied being told that the substantive hearing was due to start in January 2000. Even if she was not told of the hearing in January by Mr Jarvis, the Tribunal found that she was undoubtedly aware of it by 12 January 2000 when she was informed by Hull City Council's Legal Department that she and her fellow MEC members were on their own as far as these proceedings were concerned. She had also corresponded with the Applicant's solicitors from her home address, the last letter from those solicitors, Thompsons, being dated 10 January 2000, sending a proposed index for the trial bundle and asking about an exchange of witness statements.
10. The Tribunal concluded that the first three Respondents, including Mrs Smith, all knew about the proceedings listed for hearing on 17 January, but chose to ignore that hearing presumably, thought the Tribunal, in the hope that the Applicant's complaints would be settled between their trade union and Hull City Council.
11. In these circumstances the review application by all three individual Respondents was dismissed.
12. Against the Review Decision this appeal is now brought by Mrs Smith. Mr Miller, in a determined presentation, has really taken one point. He submits that there was an insufficient factual basis for the Tribunal to draw the inference that Mrs Smith knew of the hearing fixed for 17 January. It is right to say that none of the correspondence sent to her, or indeed by her, specifically refers to that hearing date. Further, the notice of hearing sent out by the Tribunal on 24 November 2000 was addressed to the REC's former premises, in George Street, Hull, which had been vacated some time before.
13. We have considered that submission which we think would be more in place before a criminal jury, where the question as to the Appellant's knowledge is one which must be established beyond reasonable doubt. We are not a criminal or indeed an industrial jury. Our jurisdiction is limited to correcting errors of law. The only question for us is whether there was sufficient material before the Tribunal for them to draw the inference that despite her denial, Mrs Smith was well aware of the relevant date of hearing, and simply chose not to attend.
14. In our judgment, there was adequate evidence for that inference to be drawn. Consequently we have concluded that this appeal raises no arguable point of law fit to go to a full hearing and the appeal must be dismissed.