Appeal No.	EAT/1123/02/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 May 2003

Before
THE HONOURABLE MR JUSTICE WALL
MR D J HODGKINS CB
MR D NORMAN

MS M T DAVIES	APPELLANT

C I B LTD t/a CITY PEOPLE (in Voluntary Liquidation)	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	Mr R O'Dair
Representative
Free Representation Unit
Peer House
4th Floor
8-14 Verulam Street
London WC1X 8LZ	
For the Respondent	No appearance or 
representation by or 
on behalf of the Respondent

THE HONOURABLE MR JUSTICE WALL

1	This is an appeal by Michelle Davies against the Decision of the Employment Tribunal held at London Central, Chair Miss Lewzey, on 23 and 24 July 2002, and promulgated on 22 August 2002.  Ms Davies was the Applicant, the Respondent was a limited company called C I B Ltd, trading as City People. That company has, unfortunately, since gone into liquidation and does not appear before us today, although it was represented at the Tribunal by Counsel.  

2	In her form IT1, Ms Davies complained that she had been unfairly dismissed by her employer. She also made an allegation of sex discrimination and claimed unlawful deduction from her wages.  The position, as she described it, in the attachment to her form IT1, was that her employer was an employment agency placing workers within the Facilities, Reprographics, Mailroom and IT Recruitment industries on a temporary, permanent or contract basis.  She had been initially employed as a Temporary Staff Consultant and had then been promoted to become the Manager of the temporary staff section, which dealt with the placement of temporary staff in the industries already described.  The Managing Director of the company was a Mr Melvyn Barker-Smith and the Director was Ms Alex Spencer.  

3	Ms Davies’ case was that she had been a successful employee with the company and had been well regarded by them, but that she had been dismissed in circumstances which we will describe in more detail later -  but in essence at this stage, she describes an incident on 19 September 2001, when she was performing her normal duties.  She says that the Permanent Consultant, a Mr Jolobis, admonished her for speaking loudly whilst she was interviewing a prospective candidate. She says she apologised to Mr Jolobis immediately for speaking loudly, but said that he unreasonably admonished her further, complained that she always talked too loudly and that she was “only interviewing a candidate”.  She became upset. She said that she felt embarrassed and humiliated by his actions, especially as he had made his remarks in front of a candidate. She asked a colleague to take over the interview, which that colleague refused to do. She felt so upset that she could not continue with the interview and had to leave the office.  She accepts that she used the words:
 “I can’t take this any more, I have had enough I am handing my notice in.”

4	Events which followed, again, we will deal with in a little more detail later, but for the purposes of what happened before the Tribunal, it is important to note that Ms Davies’ case was that the same afternoon she telephoned Alex Spencer, retracted her resignation and apologised for leaving the office.  The Applicant informed Alex Spencer that she said she would attend work immediately after the phone call that afternoon, but was advised not to do so.  She says that on the 20th she phoned Mr Barker-Smith and that he immediately enquired as to a scan which she had had.  Ms Davies confirmed that she was pregnant.  Mr Barker-Smith, she says, then replied that she should therefore not come into the office whilst her retraction would be considered.  She wrote a letter to the Respondent which was hand delivered; however. she was then told subsequently in a letter dated 26 September that the Respondent had accepted her resignation and she received her P45.  

5	Her claim is that she resigned “in the heat of the moment” after she had suffered humiliating and upsetting treatment from a co-worker. She says that she retracted her resignation very soon afterwards.  Her employer’s refusal to accept her retraction, she says, amounted to a dismissal and, furthermore, she believed that her employer refused to accept her retraction of the resignation and thereby dismissed her because she was pregnant. Such a dismissal was therefore automatically unfair and an act of sex discrimination.  She said that Alex Spencer in particular had difficulties with pregnancies and employees being pregnant.  

6	The employer’s case in the form IT3 was very straightforward. It said that she had not been dismissed. She had resigned voluntarily on 19 September 2001 and was therefore not entitled to present a complaint of unfair dismissal.  The Respondent joined issue with Ms Davies’ assertion that she was a well regarded employee and pointed out that she had in the past had two final written warnings for behaviour towards candidates and members of staff.  In denying the dismissal, the Respondent also denied that her departure from its point of view had anything to do with her pregnancy, or that it was in any way motivated by her pregnancy in accepting her resignation. It put her strict proof that the company was aware on the 20th or before 20 September that she was indeed pregnant.  Its case, as I said, was that she had resigned.  

7	The first issue which the Tribunal had to deal with was not to do with the substantive issues between the parties. It arose because after the Applicant had completed her case, and, indeed, several of the Respondent’s witnesses had given evidence, Mr O’Dair, who was appearing for the Applicant before the Tribunal, made an application to call another witness, a Ms Toni Cox, whose evidence had not previously been disclosed to the Tribunal or to the Respondent.  

8	The Tribunal deals with this incident in considerable detail.  It points out that the Applicant had closed her case at 12.07 on the first day, 23 July 2002, and Mr O’Dair confirmed that the case had been closed.  When the case was called at 10 o’clock on the second day, 24 July, Mr O’Dair made his application to call Ms Cox to give evidence.  Mr O’Dair told the Tribunal that the evidence of Ms Cox included an alleged implied bribe; that it corroborated the evidence of the Applicant on some collateral matters; that it referred to alleged remarks about babies made by Ms Spencer and that it contained evidence about Ms Cox’s resignation.  The Tribunal commented that it had not seen the witness statement of Ms Cox and declined to do so unless it agreed to admit the evidence.  The Tribunal directed itself that in deciding whether or not to admit the evidence, it must balance fairness and prejudice to both parties, and it then took into account a number of factors.  

9	The first factor was the directions which had been given by the Tribunal for the preparation of the case. In our papers is a letter from the Regional Office, dated 11 February 2002 which sets out what has to be done.  In relation to witness statements what is said here is:
“It is the practice in the Region for the evidence of witnesses including the Applicant and the Respondent to be given by reference to their written statements and then to be cross-examined by the other party. You must accordingly bring to the hearing 5 copies of the written statements of witnesses you intend to call.  Experience has shown that it is helpful to both sides and to the Tribunal if the parties can liaise in advance and exchange witness statements on a date before the hearing.”

Indeed, directions are frequently given that witness statements should be exchanged by a given date.  The Tribunal continued by pointing out that Ms Davies’ witness statement made no reference to the matters said to be included in Ms Cox’s statement, although Ms Davies had mentioned Ms Cox in paragraphs 2, 4 and 6 only of her witness statement  - but not in connection with the matters which are now said to be in Ms Cox’s statement.  

10	The Tribunal  also pointed out that the matters did not appear to be mentioned in the Originating Application, the IT1.  The Respondent was entitled to know the case being brought against it in order that it may respond.  The case had been going since December 2001; this hearing was in July; the Applicant had had plenty of time to locate Ms Cox and obtain a proof of evidence from her, well in advance of the hearing.  Mr O’Dair had made no mention of potential evidence of Ms Cox when he went through Ms Davies’ statement with her, in chief, although on Mr O’Dair’s own admission, by that time he was in touch with Ms Cox.  The Tribunal also pointed out that at the end of the evidence, Mr O’Dair had closed his case. He had  made no mention of possible evidence from Ms Cox, when matters were discussed with the parties at the beginning of the hearing, or during housekeeping matters at the beginning of the hearing.  He had made no mention of her evidence when the hearing adjourned at the end of the first day.  By that time, he had received faxes in relation to the matter and if he had needed to be advised on how he should handle the situation, he could have obtained that advice more timeously.

11	The Tribunal therefore concluded that the evidence of Ms Cox could have been obtained on a much more timely basis by the Applicant, and to present it at the beginning of the second day of the hearing, when the Applicant’s case having closed prior to much of the first day, raised new issues in the case to the  prejudice of the Respondent.  The Applicant had ample opportunity to obtain her evidence in good time and failed to do so, in the circumstances the unanimous decision of the Tribunal was to refuse to admit the evidence.  

12	Mr O’Dair has, very frankly, shown us a document which he prepared on the night before the first day of the Tribunal, that is on 22 July, in which he had envisaged sending to the Chair a letter in the following terms, although at that point because it was the 22nd, he apparently did not know that Miss Lewzey would be the Chair.  It reads:
“Dear Sir
I am writing to inform you that my client intends to call a Ms Toni Cox to give evidence in this case.  Ms Cox has only just been found which is why no witness statement has been produced and cannot attend until tomorrow.  My client says that Ms Cox had told her that she has been pressurized not to attend by the Respondents and for this reason I do not intend to make any formal application till Ms Cox is safely within the building tomorrow morning.  I thought I ought nevertheless to give you advance warning ex parte.”

Of course, Ms Cox did not attend on the morning of the 23rd .  

13	As was pointed out by Mr Norman during the course of argument this morning, the obviously sensible thing to have done, from Mr O’Dair’s point of view, if he was genuinely concerned about the welfare of the witness, was to have mentioned the matter during the course of housekeeping on the first morning.  In our view, the suggestion that at that point any attempt could or would have been made to influence the witness, or to prevent the witness from coming, does not bear examination.  If Mr O’Dair had told the Chair of the Tribunal that he had a witness, Ms Cox, and was unwilling to produce her statement or alternatively was anxious about her welfare, it would have been quite extraordinary, in our view, even if the Respondents were dishonourable people, for them to take any steps to attack or influence Ms Cox between now and her then giving evidence.  

14	All Ms Cox would have had to have done is to have said “I was approached yesterday by a representative of the Respondent who told me that I should not be giving evidence, or warned me about it” and the case which the Applicant was making, or makes now, that the Respondents were dishonourable in their approach to these proceedings would have been eminently made out.  The simple fact of the matter is (and we appreciate of course that Mr O’Dair was in a difficult professional position and was facing a dilemma)  in our judgment, that  there was no reason why Ms Cox’s statement should not have been disclosed to the Tribunal and to the other side at the very outset.  Had that occurred, of course, Ms Cox could have been called because it would not have been necessary to alert the Tribunal and the other side to her existence only after the Applicant’s case had been closed.  

15	We reach that decision without looking at the content of Ms Cox’s statement, but when we do, as, as it were, a double-check on the fairness issue, we frankly see that it has very very little indeed to do with the issues before the Tribunal. Certainly in no sense can it be said to be central.  Ms Cox worked for the Respondent for two months. She left in March 2001, which is a substantial period of time before the events with which we are concerned. She can give no factual evidence of any kind in relation to the issues with which we are concerned.  

16	The only basis upon which her evidence is said to be relevant is that on 4 October 2001, Mr Winter, the Respondents’ Officer Manager, wrote her a letter in which he says that the company had been trying to get in contact with her recently:
“as we have a serious situation which has arisen regarding Michelle Davies”

The letter then goes on:
“It is important that we speak to you in person as soon as possible because your input into this matter may help our investigation.
We stress that this matter will not affect your employment in any way and assure you that your conversation with us will be dealt with in the strictest of confidence.”

And then this paragraph:
“We would also like you to know that one of our consultants may possibly be leaving in January and a vacancy may arise.  If you would like to consider re-applying for the position we would notify you nearer the time and seriously consider your application.
We would appreciate you contacting Alex or Melvyn as soon as you can on the above number.”

17	Ms Cox did not reply to that letter, and there was a follow up on 25 October in which this time Mr Barker-Smith wrote apologising for troubling her again, but pointing out that Ms Davies had now taken the matter to the Industrial Tribunal, even though she “verbally gave notice and walked out”, and the letter goes on:
“Due to her pregnancy, we really do need your statement, which for you will be the end of the affair completely.
With a written statement from yourself there will be no further involvement.
Please give this your best possible attention. 
If you are still unsure, or apprehensive, please call me, very best wishes.”

18	Ms Cox replied to that letter on 31 October, in which she says that she decided she did not in any way or form want to get involved with any disagreement/argument that the company had with Michelle Davies.  The letter goes on:
“I feel there is more to this situation than you are letting on.  In your letter of 25th October 2001 you mention that Michelle is pregnant.  There was no mention of this when I spoke to you previous and I feel City People have tried to cajole me into giving evidence against Michelle without fully explaining the circumstances.
When Alex first spoke to me he said he wanted me to put in writing the reason why I left City People because he had a reference from “some agency”.  Alex then went on to say that he needed me to write, what I believe to be, a discriminating letter explaining in full detail what Michelle was like to work with, so he would know what to say in the ‘reference request’.  
From my own experience, which has led to believe that Michelle’s pregnancy has a lot to do with your predicament, I know Alex has a problem with a member of his staff getting pregnant, as he once said to me one morning when discussing children “No mention of babies please, any sign of babies I will have to get the special doctor to scrape it all away”.  This is an unacceptable thing to say along with accusing me of being racist towards Nico and other numerous occasions where by I was shouted at and spoken to like a child.
I therefore think I am the wrong person to look towards for support against Michelle.”

19	We make two comments on this statement. First, with great respect, although it may go to the issue as to whether or not Ms or Mr Spencer had views about pregnancy (the date of that conversation is not given) and may, therefore, we suppose, inferentially, go towards the question of whether it was the pregnancy which caused the Respondent not to accept Ms Davies’ resignation (a point to which we will, of course, return) this statement, frankly, seems to us not to advance the case very much. Thus, in our judgment, even if the Tribunal had admitted it, it would not have advanced Ms Davies’ position,. However,  the Tribunal did not admit it and the question we have to ask ourselves is whether or not they were wrong in law in not doing so.  

20	In seeking to persuade us that they were wrong, Mr O’Dair relies on a judgment of  Evans-Lombe J in a case called Arrow Nominees -v- Blackledge, a decision which was reversed in the Court of Appeal but which Mr O’Dair says was reversed on a different point.  This case involved an application to strike out a claim following an applicant’s contumelious breach of a Discovery Order.  Mr O’Dair quotes this passage from a judgment of Mr Justice Evans-Lombe 
“It is not a proper exercise of the Court’s power under the rules or its inherent power to strike out a case where the claimant has been found to be in contumacious breach of the rules or an order of the Court or even is guilty of fraud on the Court ….. if it can be shown that notwithstanding the claimant’s conduct there is no substantial risk that a fair trial of his claim cannot follow ….. I agree with the conclusion of Mr Justice Laddie in the Swaptronics case, that to conclude that a contemnor should have his case struck out by reason of his contempt notwithstanding that the Court takes the view that a fair trial can follow is likely to be a breach of Article 6.1 of the European Convention on Human Rights as being a breach of the contemnors’ right to a “determination of his civil rights and obligations” at “a fair and public hearing within a reasonable time by an independent tribunal established by law.”

21	In our judgment, the case of Arrow Nominees is not in point.  This is not a case of Ms Davies being denied access to the seat of justice and her claim being struck out.  She was not being allowed to call a particular witness because her advisors and herself had, for what they perceived to be a good reasons, failed to disclose the statement to the Tribunal and to the other side in good time.  It was a simple disobedience of the rules and, in our judgment, no question of Article 6 arises in relation to this.  Ms Davies had, in our view, an entirely fair trial, but in order to ensure that no prejudice was done, we decided that we would look at the statement itself to see if the Tribunal had admitted it, it would have been likely to have made any difference.  

22	The Tribunal, in our view, given the reasons it gave for declining to admit the statement, was acting entirely within its discretion.  It is criticised, amongst other things, for not having considered the question of an adjournment if it thought there was prejudice to the Respondent, but such an adjournment would, in our view, have been quite disproportionate - and it would also have had the disadvantage from Ms Davies’ point of view that it would have been very difficult for her or her advisers to have avoided paying the costs thrown away in that context.  

23	We therefore do not believe there had been any restriction on Ms Davies’ right under Article 6 in this particular instance, and, as we said a minute ago, even if the evidence had been admitted, it would not, we think, have materially advanced the claim.  Accordingly, the reason the Tribunal gives for refusing to admit it, which is effectively a balance of fairness and also consideration of the question of prejudice,  seems to us entirely right and that part of the appeal must inevitably fail.  

24	We then turn to the substance of the claim. Here we have to look at the facts found by the Tribunal, because in some material respects it did not find the facts as alleged by Ms Davies.  We are, of course, bound by the Tribunal’s findings of fact unless they are perverse, that is to say they had made findings which no Tribunal, properly directing itself could have made, or that the evidence simply did not permit it to make the findings which it did.  

25	The Tribunal began its assessment of the facts in this respect, by pointing out that Ms Davies had a somewhat chequered employment history with the Respondent.  It referred to the initial final written warning in July 2000 and, amongst other matters, also referred to a further final written warning on 16 March.  We see no reason to read out what the allegations and findings in relation to those two were, but they were serious indeed: in fact a final written warning is about as serious a matter can get prior to dismissal. Certainly, looking at those materials, it does seem that Ms Davies pointed a somewhat optimistic picture of herself in her form IT1.  

26	In any event, we take up the story with paragraph 18 of the Tribunal’s reasons, when on 31 August 2001 Ms Davies was taken to hospital with a suspected ectopic pregnancy. That is plainly a matter of the greatest sympathy and the most huge anxiety and the Tribunal fully, we think, accepted that.  Ms Davies went for a scan on 7 September, the day before she was due to go on holiday. Happily the pregnancy was not an ectopic pregnancy, but the question remained whether the pregnancy was going to be viable.  The Applicant, as we said, then immediately went on holiday between 8 and 17 September, with the flights being paid for by Mr Spencer.  Clearly, on holiday, Ms Davies and her partner concluded that she was pregnant and begin to read books about pregnancy.  	She returned on the 17th  and two days later, occurred the event which is at the heart of these proceedings. We will deal with it in the manner which the Tribunal did, by reading what they found:
“22	     In the afternoon of 19 September 2001, Ms Davies was interviewing a candidate.  Mr Jolobis was on the telephone at the time and asked Ms Davies to keep her voice down.  Ms Cali and Ms Baxter were present and both gave evidence confirming this.  All the evidence, including that of Ms Davies, is that Ms Davies stood up, said she was resigning, asked Ms Cali to take over the interview and left the office.  Ms Davies went home.
23     Ms Davies told us that when she arrived home she telephoned Ms Spencer.  Ms Spencer confirmed that she received a call from Ms Davies at 5.30 pm approximately.  Ms Spencer told us that the discussion in the telephone call was about notice pay and references and payment of wages.  Ms Davies told us that she told Ms Spencer that she wanted to come back.  There is no corroborative evidence that Ms Davies said that she wanted to retract her resignation and in view of the fact that it is not reflected in Ms Davies’ letter of 19 September (page 6) she had failed to prove, on the balance of probabilities, that in the telephone call to Ms Spencer she said that she wished to retract her resignation.”

So that, in our judgment, is an important finding of fact by the Tribunal that she did not retract her resignation in the telephone conversation as she had alleged in her IT1.

27	On 19 September Ms Davies wrote to Ms Spencer in these terms:
“Following yesterday’s situation at work I thought it sensible to write down, my objection to the way I was treated, and the manner in which it occurred.  
Although my behaviour after the incident was not my normal way of dealing with the situation, I did feel justified in leaving the office because of the way I was spoken to in front of a candidate.  I felt completely humiliated in front of him whilst conducting the interview.  
As you know, I interview in an open office, which has often required people asking for quiet, usually done through a hand signal to maintain our professionalism in front of prospective candidates.  On this occasion, Nico, from his desk, asked ‘….. if I could be quieter …. ‘ - to which I replied, ‘Yes, no problem’.  Before I could return to the interview, he then began shouting saying ‘. that I always talk too loud and that I was only interviewing a candidate...’
I then asked Eileen if she could take over the interview, as I was both embarrassed and upset.  She said that I should take it up with Nico as he was in charge.  I couldn’t carry on with the interview, because I was so upset, and felt that the only option left was to leave the office to try and calm down.  You are aware I have a slight hearing problem, and I feel this should have been taken into account - that said I now realise that the way I behaved was also a mistake.  For that I apologise.”

This is then perhaps the crucial paragraph of the letter:
“I have always been very committed to my job, and this is still the case.  I enjoy being part of the team and value my role as I find it very satisfying.  I hope that, as mistakes have been made on both sides that I still have a place here and we can put this episode behind us and carry on as before.”

28	The Tribunal commented, in relation to that letter, that it contained an apology “but does not contain a specific retraction of the resignation”, although the Tribunal noted the final sentence:
“I hope that, as mistakes have been made on both sides that I still have a place here and we can put this episode behind us and carry on as before.”

The Tribunal commented that the letter had been delivered by hand on the 20th and made no reference to the pregnancy.  

29	Mr Barker-Smith wrote to the Applicant on 21 September:
“Following your resignation on Wednesday 19 September, we are looking into the situation.  In the meantime we will be paying your wages in full until further notice and we hope to be in a position to advise you of our decision very shortly”
and by letter of 26 September, Ms Spencer wrote to Ms Davies accepting her oral resignation on 19 September, a letter received on the 29th. The Tribunal commented:

“Ms Davies own letter which crossed with that of Ms Spencer of 26 September is dated 27 September 2001 and questions why the Respondent needs a meeting to decide whether to accept Ms Davies’ resignation.  The letter confirms Ms Davies’ pregnancy which was confirmed to Ms Davies following her scan of 20 September 2001”

30	The Tribunal heard argument on the law which had to be applied to the question of resignations and the withdrawal of resignations, coupled as it was in some of the cases with instant dismissal, followed by a retraction of the instant dismissal.  They were referred to Sovereign Security Ltd -v- Savage, to Kwikfit (GB) Ltd -v- Lineham, to Martin -v- Yeoman Aggregates Ltd and it was clear this afternoon, when we were referred to authority by Mr O’Dair that the passages he referred us to in both Kwikfit and Martin were identical to those which were relied upon by the Tribunal.  The Tribunal summarised Sovereign Security Ltd -v- Savage as indicating that the Tribunal should accept that an employee has resigned unless there are exceptional circumstances.  

31	The Tribunal quoted the headnote of Kwikfit which it stated indicated that a reasonable employer should allow a reasonable period of time of a day or two to investigate the situation . It dealt with Martin -v- Yeoman Aggregates Ltd  where an employer dismissed an employee and then retracted the dismissal.  The passage it quotes from the latter case is this one:
“We have no doubt whatsoever and, hoping that this matter may well be tested in the Court of Appeal, perhaps impertinently, confidently assert that it is a matter of plain common sense, vital to industrial relations, that either an employer or an employee should be given the opportunity of recanting from words spoken in the heat of the moment.  We agree entirely with the first conclusion of the industrial tribunal that, having done what they did, withdrawing the original spoken words, saying that a man was suspended and telling him that, in the circumstances, there was no dismissal.”

32.	When deciding, therefore, whether the resignation had been retracted or not, and whether or not the Applicant had been dismissed, the Tribunal took the following matters into account. Firstly, in the conversation of 19 September. The Tribunal had not made a finding that Ms Davies had retracted the conversation, nor had she followed that up in the letter of 19 September, which did not state that she retracted the resignation.  By his letter of 21 September Mr Barker-Smith said the Respondent was looking into the situation concerning the resignation, which was not accepted until the 26th.  That was a reasonable period of time, in line with that contemplated by Kwikfit (GB) Ltd -v- Lineham.  The Tribunal also noted that Ms Davies had had her holiday to recover from distress at the possible ectopic pregnancy on 31 August/1 September.  The Tribunal was mindful of the guidance of Sovereign Security Ltd -v- Savage which said that the Tribunal should be astute not to find other than a resignation was a resignation, but were mindful of the other guidance in Kwikfit.  The Tribunal was satisfied that the Respondent acted in the way contemplated in Kwikfit, and having taken these matters into account, it was the unanimous decision of the Tribunal that Ms Davies resigned on 19 September, and her resignation was accepted on the 26th.  Therefore, because she had resigned it was the unanimous decision of the Tribunal that the claim for unfair dismissal failed.  

33	The question we have to ask ourselves is whether or not those passages which we have read either represent a misdirection to the Tribunal in law or are in some other way perverse.  It seems to us that the decision by the Tribunal that Ms Davies had not retracted the resignation is one which it was entitled to make.  First of all, of course, it made the finding of fact about the telephone call, and, secondly, what it clearly did was to interpret the letter of 19 September 2001 as a request by the Respondent to reconsider the question of the resignation and not to accept it. In our judgment, although that is a fairly fine line, it seems to us that the side of it upon which the Tribunal has landed is not one with which we can properly interfere.  There was no expressed retraction of the resignation. It may be that the letter of 19 September could be read as an implied retraction, but equally, it seems to us, it is capable of being read in the way in which the Tribunal read it: namely an invitation to the Respondent to consider whether or not to accept it, and indeed not to accept it. In those circumstances, it seems to us that the Tribunal looked at the relevant authorities,  applied them carefully to the facts, has made findings of fact about which there can be really no complaint at all, and has come to the conclusion that the Applicant had resigned.

34	One particular point made by Mr O’Dair, both in this context and in the context of the true reason for the dismissal was that the remark made by the Tribunal at paragraph 34(iii) that Ms Davies had had her holiday to recover from the distress at the possible ectopic pregnancy, is itself not only insensitive, but a demonstration of indirect sex discrimination.  We have to say that we simply do not read it that way.  Ms Davies had had, of course, the enormous anxiety of the fact that she might be ectopically pregnant before the scan, but she went on holiday thereafter when the fact that it was not ectopic was clear, and in those circumstances, it seems to us that the remark which the Tribunal made is not only a perfectly reasonable one, but something which it was entitled to take into account. 

35	That might have been thought to be the end of the matter, but it was not, for this reason: that the Applicant argued that she had suffered a detriment in being dismissed, and even if she was not dismissed, the reasons given by the employer/Respondent for not accepting her resignation were not those which were related to her conduct, as they themselves alleged but were based on the fact that she was pregnant. Therefore  the Respondent had refused to accept her resignation because she was pregnant and they did not wish to pay her benefits which she would be entitled to in relation to maternity leave and so on.  

36	The Tribunal was concerned about the pleading of this; that does not particularly concern us.  It doubted whether it had jurisdiction, but it decided to consider the matter, even if it did not and it took the following factors into account.  It found:
(1) There had been suggestions about a pregnancy prior to Ms Davies’ holiday, but the Respondent had understood this to be a concern that it might be ectopic;
(2) Mr Barker-Smith said that as far as he was concerned, he understood that on 19 September 2001, Ms Davies was not pregnant;
(3) The confirmation from the hospital of the pregnancy was dated 20 September;
(4) Mr Barker-Smith and Ms Spencer told the Tribunal in their evidence that Ms Davies’ conduct on 19 September amounted to a dismissal offence, particularly in the light of two prior written warnings; 
(5) Ms Davies had two final written warnings both to do with conduct and relationships with clients and colleagues;
(6) The evidence before the Tribunal was that Ms Davies had a volatile relationship with her colleagues and a number of people such as Ms Cali were not happy working with her; that had also applied to Mr Winter.

37	Having taken those matters into account, it was the unanimous Decision of the Tribunal that the reason the Respondent refused to allow Ms Davies to retract her resignation was because of her conduct and not because of her pregnancy.  In these circumstances, it decided that even if it was wrong on the issue of jurisdiction itself, the argument that the refusal to reinstate amounted to a detriment under section 62B of the 1975 Act failed. It was the unanimous Decision of the Tribunal that the claim of sex discrimination was not made out. 

38	On this aspect of the case, Mr O’Dair raises what we will call the Levy -v- Marrable Co Ltd point. It arises in this way;  that there was an issue of fact raised in the evidence to the Tribunal between Mr Thurston, who gave evidence of the Applicant and Mr Winter, on behalf of the Respondent. This issue of fact related to whether or not Mr Winter in particular, but others, has known that the Applicant was pregnant, prior to the events which we have been discussing immediately leading up to dismissal/resignation.  This did not feature in the Tribunal’s Reasons, so Mr O’Dair very properly sought the notes of the Chair. The Chair’s note of the two relevant witnesses do not themselves deal with this incident and no finding is made in relation to it.  

39	Mr O’Dair therefore sought the notes from the Respondent’s representative, but unfortunately, the representative present at the hearing had left and the notes could not be ascertained. What Mr O’Dair says in relation to this is that here is an incident where it should have been pretty clear to everybody, particularly in the light of the statement which Mr Thurston made, that he was telling the truth about this because he had found out that she was pregnant and given her some flowers, or taken her some flowers, before these incidents, as it were, blew up. He submits, accordingly that  it is clear in those circumstances that Mr Winter was not telling the truth when he denied any knowledge of the Applicant being pregnant. This demonstrated, or would have demonstrated, and would have influenced the Tribunal had it addressed its minds properly to it and made findings about it:  that here was a Respondent really prepared to bend the rules and tell untruths in the same way that they had sought to influence Ms Cox, and therefore he says this is a fundamental failing on the part of the Tribunal.  It vitiates their decision making process, because they have left out of account an extremely important finding. Because that is so, its Decision is vitiated and we must set it aside and have the matter reheard.  

40	The question arose in Levy -v- Marrable, and the passage in the judgment of Mr Justice Waite, sitting in the Employment Appeal Tribunal is in these terms:
“What is our duty in those circumstances?  We think the principle involved is the following: where there has been a conflict of evidence at the hearing before an industrial tribunal on a significant issue of fact, then the industrial tribunal’s finding (i.e their acceptance or rejection of such evidence) must be made plain one way or the other.  Express words are not necessary.  That is clear from Union of Construction, Allied Trades and Technicians v Brain [1981] ICR 542, and in particular the judgment of Donaldson LJ at p.551.  But the language must be sufficiently full and clear to make it possible for anyone to tell from a reading of the decision as a whole whether the members have believed the relevant witnesses or not.  Failure by the industrial tribunal to provide that indication, expressly or by reasonably clear implication from the overall language of their decision, amounts to an error of law”
and he points to the fact that in that case Mr Justice Waite in the EAT found no alternative but to return the matter to the Tribunal for re-hearing.  

41	We fully accept the proposition that if the Tribunal failed to make findings of fact on areas of crucial importance to the case, then its reasoning process is flawed.  The reasons are not compliant with the well known case of Meek, and the case will have to be re-heard.  

42	The question we have to ask ourselves here is whether or not the incident on which Mr O’Dair relies is really of such centrality as to vitiate the Decision of the Tribunal. We have come to the very clear conclusion that it is not. The Applicant’s case is of course that the Respondent refused to accept her resignation, because (the true reason was)  they wanted to get rid of her was because she was pregnant.  The Tribunal has dealt with this, we think, with some care and the overriding reason which it accepts, and which we have to say stands out from the evidence, is paragraph 38.4:
“Mr Barker-Smith and Ms Spencer told the Tribunal in their evidence that Ms Davies’ conduct on 19 September amounted to a dismissal offence, particularly in the light of the two prior written warnings.”

Ms Davies had had two written warnings; she had a volatile relationship with her clients and they refused to accept the retraction of her resignation because of her conduct and not her pregnancy.  

43	That, in our judgment, is a decision the Tribunal was plainly entitled to reach and we have to say that we do not think that a finding in relation to a dispute as to credibility between Mr Thurston and Mr Winter on a limited issue, whether or not Mr Winter knew that the claimant was pregnant, would have made any difference at all. Certainly, in our view, it would be wholly disproportionate to set aside the decision of the Employment Tribunal because of its failure to deal with this one particular issue.  It might well have been preferable had the Tribunal dealt with it and made a finding about it, and then explained that it had not made any difference.  It did not do that; we have to look at the Reasons which it did give and, in our judgment, the Reasons which it gave are sufficient and the incident which it chose to adjudicate upon could properly be regarded as sufficient.  

44	The other matters then fall away and, in these circumstances, we have come to the clear view that the Tribunal, after a careful investigation, reached the correct decision, and the appeal will accordingly be dismissed.