Appeal No. EAT/0025/02 DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 June 2003

Before
HIS HONOUR JUDGE J R REID QC
MR D NORMAN
MRS D M PALMER

MISS JENNIFER RYAN	APPELLANT

(1) YOUR MOVE CO UK LTD t/a YOUR MOVE	RESPONDENTS
(2) MR JOHN RALPH
(3) MR DAVID ROUSE
(4) MR JOHN POWELL

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	No Appearance or Representation By or on Behalf of the Appellant	
For the Respondent	MISS L CHUDLEIGH
(of Counsel)
Instructed by:
Employment Relations Consultant
112 Cabul Close
Warrington
Cheshire WA2 7SE	

HIS HONOUR JUDGE J R REID QC

1	This is an appeal by Miss Ryan against a decision of the Employment Tribunal held at Southampton on three hearing days and then a further day when there was a discussion as reserved decision.  By the decision the Tribunal dismissed Miss Ryan’s claim against her former employer, Your Move Co UK Ltd and three of its employees for sex discrimination and unfair dismissal.  A claim under the Working Time Regulations 1998, which Miss Ryan had also made, was withdrawn at the commencement of the hearing and was dismissed for that reason.

2	The grounds of appeal are twofold.  First, there are procedural grounds of appeal and, secondly, there is an appeal on the basis that the decision of the Tribunal on the facts was perverse.

3	The facts can be stated in fairly brief form.  Miss Ryan was employed as a Valuation Manager at the Basingstoke branch of Your Move, which is a large company of estate agents with a national spread of offices.  Her employment commenced on 26 July 2000 and she was dismissed with immediate effect on 16 March 2001 but when she was dismissed she received four week’s pay.  She had worked as Valuation Manager during that time and during the latter part of that time she became pregnant.

4	There was a disciplinary meeting to which she had been summoned on 28 February, that meeting to be held on 2 March.  Up to that time she had not informed anyone among her employers that she was pregnant.  However, after she was summoned to the disciplinary meeting she spoke to her partner and following discussion with him she spoke to a Mr Goulden, her previous Area Sales Manager, who she believed would be more compassionate and understanding.  At about 2.45 on the afternoon of 28 February she told him that she was pregnant and asked him to let Mr Ralph, who was the gentleman who had summoned her to the disciplinary meeting, know that she was pregnant.  Mr Goulden spoke to Mr Ralph that same afternoon.  There was a finding of fact, which is challenged before us, this was the first that Mr Ralph knew of the pregnancy.

5	The disciplinary hearing fixed for 2 March was postponed because of the Applicant’s ill health and was then rearranged for 16 March.  In the meantime, Mr Ralph had consulted, on 1 March, a Mr Kelsey, the Senior Human Resources Consultant, about the forthcoming disciplinary proceedings.  He had been advised that it would be appropriate to proceed with the matter since the grounds for the disciplinary hearing were the Appellant’s performance and behaviour and not her pregnancy.

6	The meeting then took place.  The meeting, it has to be said, was not well run.  It was a very brief meeting and the Applicant had been given no advance notice of the matters which were causing concern.  At the conclusion of the meeting she was told by Mr Ralph that he was minded to dismiss her but he would give her the opportunity of resigning.  She asked if she was being requested to leave because she was pregnant.  Mr Ralph said no, it had nothing to do with the pregnancy.  She declined to resign.  Mr Ralph then dismissed her with immediate effect but confirmed she would be paid four week’s pay in lieu of notice.  Her claim was to the effect that the dismissal was a put up job and that it was a dismissal simply because she was pregnant.

7	Against that background we turn to the first of the issues that is raised on this appeal, which arises in this way.  There was a direction for the exchange of witness statements but what occurred was that the Respondent’s witness statements were not served on the day on which they should have been.  The Order had provided that “witness statements should be exchanged no later than 6 August 2001” and it stated that “only in exceptional circumstances would the Tribunal consider the evidence of witnesses whose statements had not been so exchanged.

8	In the course of the afternoon of 6 August the employment consultant then representing the Respondents communicated with the solicitor then representing Miss Ryan and told him that he was going to be unable to exchange witness statements that afternoon, as he had anticipated that he would be able to, the problem being (it appears) that the statements had not arrived at his office timeously.  He proposed that the exchange be delayed until 1.00pm the following day.  Miss Ryan’s solicitor refused to co-operate with the proposal and wrote to the consultant indicating that if exchange did not take place an application would be made in effect for the evidence of the Respondents to be excluded.  The letter says this:

“We put you on notice.  We will be faxing to you all statements upon which the Applicant intends to rely at the hearing at 4.30pm this afternoon.  If you fail to provide us with all statements upon which you intend to rely at the hearing, we will ask the Tribunal to exclude all those statements as a consequence.
We would also point out that during your conversation with Simon Wysell this morning you confirmed there were no exceptional circumstances as to why your client was not in a position to exchange statements today.  We will be drawing the Tribunal’s attention to this letter at the hearing.”

9	In fact, the Respondents’ evidence was faxed the following morning but there was a period of some 19 hours during which Miss Ryan did not have the Respondents’ evidence, but the Respondents had the evidence to be used on her behalf.

10	A letter was then written by the solicitors to Miss Ryan, to the Tribunal, raising the point and asking the evidence be excluded, at the commencement of the hearing, by which time Miss Ryan was no longer represented by solicitors but was represented by a lay representative, her partner.  The matter was raised but the Tribunal concluded that in the interests of justice the evidence should be admitted.

11	A lengthy written submission has been put in on behalf of Miss Ryan, who is neither here nor represented before us today, suggesting that the Tribunal was wrong to act as it did.  In our judgment the submission is a hopeless one.  In each case in which there is a failure to comply with the time limit the Tribunal has to consider whether or not it will strictly enforce that time limit or whether it will allow evidence to be put before it, notwithstanding statements had not been served in accordance with its Directions.  In doing so, the Tribunal has to look at the overall justice of the case and it has to look at the overriding objectives of ensuring a fair and expeditious disposal of the proceedings.

12	In this instance the delay was very short.  The solicitor acting for Miss Ryan had had the opportunity of extending time and not serving her witness statements until the following day so that there would be an exchange and had deliberately turned that opportunity down.  The period during which the Respondents had had Miss Ryan’s witness statements was a very short one.

13	It is suggested in the Skeleton Argument and in the written submissions put before us that overnight the Respondents’ witnesses could have tailored their witness statements in the light of the witness statements put in on behalf of Miss Ryan.  That appears not to have been a matter which was suggested to any of them in cross-examination and in any event it seems to us to be fanciful.

14	In our judgment, there was no detriment suffered by Miss Ryan as a result of the delay in service of the witness statements and it would have been wholly wrong in those circumstances for the Tribunal to have in effect excluded the Respondents from defending the case because of this short period by which they failed to comply with the Order for the service of evidence.  Not only are we satisfied that the Tribunal’s decision cannot be attacked as being incorrect, but we are satisfied that any other decision would have been manifestly wrong.
15	The second procedural matter which is raised is that in the course of the proceedings various further documents were produced.  The pre-hearing days were spread.  There were ten days between the first and second days of the hearing and then almost a month before the final day of the hearing.  Additional documents were produced in the course of the hearing.  Some of those were put in as agreed documents.  Some were produced by the Applicant herself (or on her behalf) and in particular a few documents were produced for the first time on the last day of the hearing.  A number of the additional documents which were produced were produced at the request of Miss Ryan’s representative.

16	In our judgment, there can be no criticism whatever of the Employment Tribunal admitting any of those documents, apart possibly from the documents produced on the last morning.  It is commonplace that in any lengthy Tribunal hearing additional documents come to light or become relevant or are demanded.

17	I turn therefore to the only point of which there might be criticism; namely the production of the extra documents on the last day.  In our judgment the Tribunal were perfectly entitled to take the view which they did and to admit those documents.  The representative of Miss Ryan was given time to consider the documents.  He expressed himself content to carry on after that time.  He did not ask for an adjournment.  He did not ask for any further time to consider the matter, and in those circumstances it cannot now be right for him or his partner, Miss Ryan, to complain about the admission of those documents.  They were, in any event, in our judgment, not central in any way to the case.

18	In our judgment, therefore, the procedural complaints made by Miss Ryan on this appeal fail.

19	We turn then to the substantive alternative claim that is put in the alternative in the Appellant’s written submissions running to 35 pages which were produced to the Tribunal on 3 June and received by Counsel representing the Respondent this morning.

20	There are, in effect, four matters which are dealt with.  The Appellant has dealt meticulously and at extreme length with all her various complaints and we do not intend any discourtesy in not dealing seriatim with all the manifold points which are raised.  We should note, however, that a number of them appear to be points which amount to assertions of fresh evidence in the course of the Skeleton Argument and of the written submissions.  We should also note that although the Tribunal at the Preliminary Hearing of this appeal said this:

7	“There may be a need for notes of evidence to be produced and we give permission to the Appellant to apply to the learned Registrar specifying the notes of evidence which she would wish to have before the Employment Appeal Tribunal.”

no such application to the Registrar was ever made.

21	The four matters raised which were identified by the judgment of the Employment Appeal Tribunal at the Preliminary Hearing were these.  First, that the Employment Tribunal had indicated in some respects they were not satisfied with the evidence of Mr Rouse, one of the Respondents and indeed one of the witnesses called on behalf of Your Move, and in particular express concern about the fact that he had altered documents.  Second was the absence of any complaint about Miss Ryan’s conduct or performance before 22 February 2001.  Third, the fact that she was called to a disciplinary hearing on the day that she informed the Respondents that she was pregnant.  Fourth, it was said that the Tribunal’s decision was perverse because the dismissal was said to be for reasons of performance and conduct was inconsistent with the fact that she had received compliments about her performance.

22	So far as the first of those grounds is concerned, it is true that the Tribunal indicated that it had reservations about Mr Rouse’s evidence in certain respects and was clearly and rightly concerned because he had altered certain of the documents.  But that was a matter which the Tribunal said, at paragraph 14 of its reasons that it took fully into account and at paragraph 83 it made reference to Mr Rouse’s concession that he had altered certain of the documents.  However, the Tribunal at paragraph 85 made a finding:

85	“Although we do have reservations about Mr Rouse’s evidence in some respects, we have no doubts about the Applicant’s poor attitude to other members of staff from time to time.”

23	That was a finding of fact which the Tribunal were entitled to make.  It is true that there was a witness statement from one witness and evidence given by another witness which indicated that they were unaware of her having any problems.  It is true also that Miss Ryan received Christmas cards from persons who it was said she had bullied.  But those were matters which were before the Tribunal and they were matters which the Tribunal clearly weighed in the balance when reaching the conclusion which it did.  Mr Rouse’s alteration of documents, although it impacted on the overall credit of his evidence, did not in fact impact on this particular part of his evidence.

24	It has to be born in mind that the key point in this case is the time at which Your Move discovered that Miss Ryan was pregnant.  Miss Ryan’s case is that there was no basis for complaint or concern about her performance and that her dismissal was a put up job arising from the discovery that she was pregnant.

25	The problem that Miss Ryan has in relation to this is that her own evidence was that she had not told anyone at Your Move about her pregnancy until after she was summoned to the disciplinary meeting.
26	The high point for her case is that she thought that an employee at another office knew that she was pregnant because that employee had suspicions from her behaviour and it was suggested that those suspicions might have been relayed on, turned into a certainty and thence led to her being summoned by Mr Ralph to a disciplinary meeting.

27	The difficulty about that is that it would appear (from what may well be a matter of additional evidence) that she was challenged as to her pregnancy by this lady at some earlier stage but the inevitable inference from the fact that her evidence was that she had told no-one about it, that when challenged she had denied it.

28	In any event, there was a clear finding of fact that Mr Ralph was not aware of the pregnancy and in our judgment that is a finding of fact which the Tribunal was entitled to make.  Given that he was not aware of the pregnancy when he summoned her to a disciplinary meeting it must necessarily follow that he had concerns about her performance which required to be addressed at a disciplinary meeting and that those concerns had emerged at a time when no-one at the company was aware of her pregnancy.

29	The matters that were then raised at the disciplinary meeting, it seems to us, were matters which were matters that could properly be raised.  No-one has defended the way in which the meeting was conducted or the absence of notice being given in advance.  But that is not to say that the entire meeting was a charade aimed at dismissing her on the grounds of her pregnancy.

30	There were matters raised about her performance and conduct which the Tribunal was entitled to say were the basis of her dismissal.  It is not, in our judgment, possible to say that the Tribunal was perverse because Miss Ryan had, in some respects, received compliments about her performance.  It is commonplace of industrial management that employees will be complimented on that which they do well, even if they are also reprimanded or disciplined for things which they do not do well.  There is no inconsistency between Miss Ryan being complimented in relation to some matters, but nonetheless her being thought by the company to have fallen short in relation to other matters.

31	There were specific matters which were raised in the disciplinary meeting, some of which Miss Ryan denies; one at least of which she says was exaggerated.  But the Tribunal had material before it on which it was entitled to take the view that the dismissal was for the reasons which Mr Ralph gave.  The Tribunal had the opportunity of seeing and forming a view of Mr Ralph which was central to its decision.  It also had the opportunity of seeing and forming a view of Miss Ryan which equally was a most important factor in its decision.

32	We take the view that whilst other Tribunals on the evidence which was heard might have reached other conclusions, it cannot be said that there was no evidence on which the Tribunal could reach the conclusion which it did, or that it can be said that in reaching the conclusion which it did the Tribunal was acting perversely.

33	In those circumstances, we do not think that it is necessary to go line by line through the voluminous documentation produced on Miss Ryan’s behalf.  We take the view that she has failed to make out the grounds of her appeal and the appeal should be dismissed.