Appeal No. UKEAT/0243/07/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 June 2007

Before
THE HONOURABLE MR JUSTICE WILKIE
DR B V FITZGERALD MBE LLD FRSA
MR D WELCH

MAYOR AND BURGESSES OF THE LONDON BOROUGH OF NEWHAM	APPELLANT

MISS C E BONE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Miss J Shephard 
(of Counsel)
Instructed by:
London Borough of Newham Legal Services
Newham Town Hall East Ham
London 
E6 2RP	
For the Respondent	Miss C E Bone
(The Respondent in Person)	

SUMMARY
Practice and Procedure – Chairman alone
Sex Discrimination – Direct / Victimisation
1.	Employment Tribunal Chairman not entitled to issue a certificate of correction to add a new finding to the decision.
2.	The Employment Tribunal was irrational in failing, in the light of its findings of fact on one issue, to find a prima facie case of unequal treatment on grounds of sex or victimisation in relation to that specific issue.

THE HONOURABLE MR JUSTICE WILKIE

1.	This is the hearing of an appeal by Mayor and Burgesses of the London Borough of Newham against a decision of the Employment Tribunal dated 5 January 2007 to issue a second certificate of correction of a judgment initially sent to the parties on 26 June 2006 and following a first issue of certificate correction on 8 September 2006.  In addition it is the hearing of a cross-appeal brought by Miss Bone in relation to one specific issue decided upon by the Tribunal in its initial decision, unaffected by either of the certificates of correction. Although Miss Bone launches this appeal on the basis that it would only arise in the event that the main appeal succeeded.  We have been asked to consider it in any event.  The Tribunal in a hearing covering some 16 days was dealing with a series of complaints made in three tranches by Miss Bone against her employers the Mayor and Burgesses of the London Borough of Newham.  Her claims were respectively for findings of direct sex discrimination, for findings of victimisation, for findings of unfair dismissal as well as findings in respect of alleged breaches of contract.  

2.	The Tribunal in its initial decision had summarised its judgment in a series of numbered paragraphs.  Those numbered paragraphs identified its conclusions in respect of direct discrimination and victimisation by reference to 30 numbered paragraphs in the decision, being sub paragraphs of paragraph 8, which identify the issues and the complaints made of both discrimination and victimisation.  They made specific findings that direct discrimination was found in 2 of the 30 instances and, in the original form of that decision, that there had been victimisation in respect of 11 out of the 30 issues.  It went on in the summary to indicate that the Claimants other complaints of direct sex discrimination failed and were dismissed.  

3.	The Tribunal went on in the summary to record its findings that the Claimant was dismissed.  She resigned in response to the Respondent’s breach of the implied term of trust and confidence, her dismissal was unfair and a date would be fixed for a remedy hearing.  Within the decision itself, which was some 69 pages long, in addition to identifying the various issues for determination in paragraphs 8-16, the Tribunal set out at paragraphs 19-107 its findings of fact.  There then followed a brief statement of the submissions of the Respondent and the Claimant. The Tribunal set out extensively the legal provisions, which included references to various cases, at paragraphs 110 to 113.  The Tribunal set out its conclusions starting at paragraph 114 and going through to 138.  The Tribunal set out sequentially its conclusions in respect of each of the 30 numbered issues at paragraphs 116-135.  It was clear to anyone reading that initial statement of reasons that the summary of the conclusions in respect of victimisation failed to accord with the decisions recorded and the findings made in the decision itself.  In particular there were two issues, numbers (xx) and (xxii) which, in the decision, they found proved as instances of victimisation but which had failed to find their way into the summary as having been proved.  The Claimant, Miss Bone, drew the Tribunal’s attention to this discrepancy between the decision itself and the summary and, as a consequence, the clerical mistakes, as they were described in the decision sent to the parties on 26 June, were corrected by adding in sub paragraph 2 of the summary the two numbered issues in respect of which the victimisation had been found proved.  

4.	The Tribunal held a remedies hearing as envisaged by the decision on liability.  That remedies hearing was heard on 11 and 12 December.  At some point, it would appear at the beginning of the second day, it became apparent that the Respondent understood the decision, and in particular the summary of the conclusions of the Tribunal, as not amounting to a finding that Miss Bone’s constructive dismissal was by reason of sex discrimination and/or victimisation but rather that the constructive dismissal was simply unfair.  That had a significant impact in the way in which the Respondent approached the remedies hearing because there is a statutory cap on the compensation which can be awarded in respect of an unfair dismissal but none in respect of a dismissal by reason of sex discrimination or victimisation.  It appears from the reasons of the Tribunal in relation to that remedies hearing, the outcome of which was an adjournment to 9 and 12 March 2007, that the Tribunal took the view that the Respondent’s position was based on a misunderstanding or a fundamental misinterpretation of the judgment and that, in response to submissions by the Respondent, the Tribunal had “agreed to consider whether to review of its own accord its judgment to clarify there was a finding of sex discrimination in respect of the dismissal and to say against whom this finding was made.”  

5.	It appears that, prior to the issue of the certificate of correction on 5 January 2007, which was the same date as the judgment in respect of the decision to adjourn the remedies hearing was sent to parties, the Tribunal had reflected upon its position because that reasoned decision concludes at paragraph 6.  “Having re-read its document the Tribunal decided to issue a certificate of correction pursuant to 37(1) of the Employment Tribunal’s Constitution and Rules of Procedure Regulations 2004.  This certificate of correction and corrected judgment are attached to this judgment.”  

6.	The certificate of correction involved changing the summary by adding at the beginning of sub paragraph (iii) the words “save as is set out on the paragraph (iv) below”. 

7.	In sub paragraph (iv), at the end of the sub paragraph which had previously recorded that she was dismissed having resigned in response to the first Respondent’s breach of the implied term of trust and confidence there was added, “her dismissal was direct sex discrimination and victimisation by the first Respondent”.  

8.	Within the reasons supporting those conclusions at paragraph 136 under the heading “Dismissal” the original reasons had stated as follows:-  

“The facts found by the Tribunal show the Claimant was subjected to a course of conduct by the First and Fourth Respondents which amounted to sex discrimination by way of victimisation after she alleged, and the Tribunal has found she was, directly discriminated against on grounds of sex by the First and Third Respondents. By their conduct the Respondents breached the implied term of trust and confidence between the parties. The Respondent has sought to argue the Claimant has waived the breach or breaches of this implied term. It is hard to see when the Claimant has waived any breach. She pursued a grievance, she commenced proceedings, and when an attempt to resolve the proceedings broke down and no real effort was made to assist her to return to work she became ill again and resigned when she received the unreasonably delayed outcome of her Stage 3 grievance. The Tribunal finds the Claimant was dismissed.”

The certificate of correction adds at the end of that paragraph the following words: 

“and her dismissal was direct sex discrimination and victimisation by the first Respondent.”  

9.	The issue on the main appeal is whether the Tribunal erred in law in issuing a certificate of correction which, the Appellant says, goes far beyond the ambit of the power given to the Tribunal by rule 37(1) which provides “(1) clerical mistakes in any order judgment, decision, or reasons, or errors arising in those documents from an accidental slip or omission, may at any time be corrected by certificate by the Chairman, Regional Chairman, Vice President or President.”  It is said the certificate of correction here goes far beyond any such correction of an accidental slip or omission.  The Appellant relies, by way of analogy, on authorities which deal with the application of a similarly worded rule, rule 40.12 in the Civil Procedure Rules.  That rule reads, “the court may at any time correct an accidental slip or omission in a judgment or order.”  In particular, the Appellant relies on the following statement in the notes to the current White Book as limiting the extent to which a judicial body can act under the slip rule.  It reads as follows:
“The so called slip rule is one of the most widely known but misunderstood rules.  The rule applies only to an accidental slip or omission in a judgment or order.  Essentially it is there to do no more than correct typographical errors for example where the order says Claimant when it means Defendant, when it says 70 days instead of 7, where it says January 2001 instead of January 2002 …. Although not limited to errors by the court or court officers the rule is limited to genuine slips and cannot be used to correct an error of substance nor in an attempt to get the court to add to its original order …. The slip rule cannot be used to enable a court to have second thoughts or to add to its original order….A judge does have power to recall his order before it is issued but not afterwards.” 

10.	Reference is made to the cases of Smithkline Beecham Plc v Apotex Europe Ltd [2002] EWHC 1655 (Ch) and Markos v Goodfellow [2002] EWCA Civ 1542.  We have been referred in the course of argument to each of these cases.  In the former case we have been referred to paragraphs 63 and 64 in the judgment of Lewison J and in the latter we have been referred to paragraphs 14-16 in the judgment of the Court of Appeal given by Pill LJ.  

11.	In considering whether the Tribunal has done more that it was permitted to do under the slip rule it has been instructive to remind ourselves of what it had said in paragraph 135 of the decision and in paragraph 137.  In paragraph 135 of the decision the Tribunal dealt with the issues numbered (xxvii)-(xxx) inclusive.  Each of these was a complaint about matters directly concerned with the hearing of the Claimant’s grievance.  In (xxvii) she complained of a delay in her appeal hearing, (xxviii) concerned the rejection of her stage 3 grievance, (xxix) concerned the delay in giving her the decision on the stage 3 grievance and (xxx) complained of a failure to respond to a further grievance set out in a letter of 24 March 2005.  The Tribunal said, in relation to those matters, which it considered together in paragraph 135, “the Tribunal has found no facts to support a prima facie case of less favourable treatment of the Claimant than a real or hypothetical male comparator in the same relevant circumstance, in relation to the stage 3 hearing going unheard, in relation to its being rejected, or in relation to the decision itself or in relation to the failure to respond to her later grievance of 24 March.  Nor has the Tribunal found facts to show this was less favourable treatment of the Claimant than a real or hypothetical comparator in the same or not materially different circumstances because she had done a protected act.  The Tribunal has found Ms Maddison’s delay in sending the Claimant the outcome of the stage 3 hearing was unreasonable conduct that confirmed and reinforced the break down in trust and confidence between the parties.”  

12.	In paragraph 136 the Tribunal dealt with the issue of dismissal.  It was headed “Dismissal”.  Paragraph 137 dealt with the issue of unfair dismissal.  It was headed “Unfair Dismissal”.  They said “the Respondent has not put forward a fair reason for dismissal.  That being the case the Claimant’s dismissal was unfair”.  

13.	The structure of paragraph 136 is, it seems to us, clear and deliberate.  In the first part of that paragraph the Tribunal considered the question whether there was a breach of the implied term of trust and confidence and if so what was the conduct which constituted that breach.  It concluded that there was conduct, which it found amounted to a course of conduct, by the first and fourth Respondents which amounted to sex discrimination by way of victimisation.  The Tribunal, in the second half of that paragraph, then went on to consider an argument raised by the Respondent that the Claimant had waived the breach or breaches of this implied term.  This arose against the background that the two instances of direct discrimination that had been found proved by the Tribunal were dated, respectively, 13 and 17 January 2003.  The 13 instances of victimisation found proved had taken place between the 27 May 2003 and 27 January 2004.  The resignation of the complainant was not written and served until 23 May 2005, that is to say well in excess of 2 years after the direct discrimination and well over a year after the last instance of victimisation.  

14.	Against that background the Tribunal said, in the latter part of 136, that the Respondent had sought to argue that the Claimant had waived the breach or breaches of this implied term.  In the terms, which we have rehearsed in paragraph 11 above, it indicated that it did not find that she had waived that entitlement.  In particular it focused on the unreasonably delayed outcome of the stage 3 grievance, a matter which, in paragraph 135, the Tribunal had found “confirmed and reinforced the breakdown in trust and confidence between the parties,” albeit it found specifically that it was not an instance of sex discrimination or victimisation.  

15.	We have no doubt in concluding that it was in the mind of the Tribunal that, in all likelihood, the constructive dismissal by reason of the breach of the implied term of trust and confidence described in paragraph 136 was not only unfair but was by reason of sex discrimination and victimisation.  Had the Tribunal added the end of paragraph 136 the words which they added by way of the certificate of correction on 5 January 2007, we can see no sensible basis upon which the correctness of that conclusion, as a matter of law, could have been questioned.  That, however, is not the question for us.  The fact is that the Tribunal in its original decision, and again by the first certificate of correction specifically stated that the complaint of direct sex discrimination and victimisation constructive dismissal was not found proved but failed and was dismissed not being a claim which was featured in the specific findings in her favour at paragraphs 1 and 2 of the summary.  Furthermore, in a reasoned decision paragraph 136 stopped short of making any finding beyond the fact that she was dismissed.  The Tribunal went on to deal with the legal consequence of its findings in paragraph 137, solely by reference to unfair dismissal, consistent with the summary to which we have already referred.  

16.	In those circumstances the change which was purported to be affected by the correction, by the second certificate of correction, went a good distance beyond the kind of accidental slip or omission which may be covered by the slip rule.  It was an adding, by the court, to its original order a finding which it had not originally made, which it perhaps intended to make, but in error failed to make.  We do not think that one can go so far as to say that it was evidence of second thoughts because we accept at face value what the Tribunal said in its reasoned decision of 5 January that it had, by implication, intended to make that finding but had failed to do so.  Nonetheless, we are constrained, somewhat reluctantly, to conclude that the decision which the Tribunal made was the one which must stand and that it erred in law when it went beyond its jurisdiction by purporting to make a fresh finding on an important matter of substance in the way that it did by issuing a certificate of correction.  That being so, in our judgment the main appeal must succeed.  We therefore turn to the cross-appeal.

17.	The cross-appeal is limited to one particular issue of alleged discrimination namely issue number (xxvi).  That issue was described as follows:

“Whether on 7 March 2005 the Claimant was subjected to less favourable treatment on the grounds of her gender when informed by the Respondent that it would not transfer her over to an alternative position.  The Claimant relies on Nick Dennett, alternatively a hypothetical comparator.  The claim is against the First Respondent.”

The Tribunal had considered the facts underlying this particular issue at paragraph 103 in which it set out a detailed series of findings in respect of the comprehensive failure on the part of Andrea Diable, who, we are told, was the head of human resources in the environmental department, to take any remotely interested steps in attempting to find her alternative work despite the impact of a number of potentially interesting pieces of information from various sources.  The background to Ms Diable’s involvement in these matters was that she was advising the Claimant’s line management and, in particular, the fourth Respondent Mr Abu and there are references in various paragraphs to her having advised him having been involved in drafting various letters and so on.  

18.	It is worthy of note that Mr Abu, the fourth Respondent, was the person who was found by the Tribunal to have been guilty of victimisation on each of the thirteen occasions which it found proved.  The Tribunal having made, as we have indicated, comprehensive findings of fact against Ms Diable at paragraph 103 then, in paragraph 134, dismissed the complaint of either victimisation or sex discrimination in the following terms.  “The facts found by the Tribunal do not show a prima facie case of less favourable treatment of the Claimant on a real or hypothetical male comparator in the same relevant circumstances, nor do they show a prima facie case of less favourable treatment to the Claimant then a real or hypothetical comparator because she had done a protected act.  The facts found by the Tribunal do show a depressingly low level of effort put into finding a way back into work for a Claimant who made it clear she wanted to get back to work and who was signed off fit to return.”  

19.	The Claimant in her cross-appeal puts the point cogently and specifically.  She says that given the comprehensive findings of fact against Ms Diable at paragraph 103 and given her close involvement in an advisory role and, therefore, knowledge of the acts Mr Abu, which the Tribunal found constituted repeated acts of victimisation, it is simply breathtaking to find the Tribunal, without any reasoning whatsoever, asserting that they found no prima facie case of unequal treatment.  The Appellant in answer to the cross appeal reminds us of the high hurdle which has to be surmounted before a perversity challenge can succeed.  She refers specifically to the case of Stewart v Cleveland Guest (Engineering) Ltd [1996] ICR 535 where Mummery J, as he then was, described the type of case where a decision might be considered perverse namely that the decision is “irrational” “offends reason”, is “certainly wrong” or “is not a permissible option” or is “fundamentally wrong” or is “outrageous” or “makes absolutely no sense” or “flies in the face of properly formed logic”.  Notwithstanding the high hurdle which that case establishes it is our judgment, in the particular circumstances of this case, that the decision of the Tribunal expressed in paragraph 134, in the light of its findings of fact which we have described is simply breathtaking in its irrationality and its failure to accord with the facts as found.  Thus, again with some reluctance, we feel obliged to conclude that the decision of the Tribunal that there was no prima facie case of less favourable treatment cannot stand.  Therefore we allow the cross-appeal.  

20.	The question of what the appropriate remedy is has taxed us a little.  It seems to us that the most that we can do is to overturn that decision and make a finding on the evidence which was before the Tribunal and on the findings of fact which they made that there was a prima facie case of less favourable treatment of the Claimant in the circumstances described in paragraph 103 and in the way described in issue number (xxvi).  Of course that does not mean necessarily that a finding of victimisation will be made because it remains for the Tribunal to receive any evidence that might be adduced by the Respondent explaining a prima facie instance of less favourable treatment having regard to the relevant burden of proof where there is a direct sex discrimination claim or a victimisation claim.  

21.	We therefore remit the case to the same Tribunal to receive further evidence, and submissions if so advised, and to make its findings in respect of victimisation or sex discrimination in respect of issue number (xxvi) having regard to our finding that there was a prima facie case of less favourable treatment.  

22.	It seems to us that it should go back to the same Tribunal because this Tribunal has shown itself to be conspicuously fair and even handed in its approach to the many factual disputes in this case, notwithstanding the fact that on one occasion it may have erred, and we have no doubt that it would apply its mind conscientiously and properly to that issue.  It would not take a great deal of time for that issue to be determined.  It may be that if any further evidence were needed in respect of remedy then the two issues could be dealt with at the same hearing.  However, we do want to make it clear that the Employment Tribunal will be limited, upon remittal, to form its conclusions on the discrete issue raised as issue (xxvi).  In our judgment it does not follow from our upholding the cross appeal that the issue whether the unfair dismissal was also a dismissal by reason of sex discrimination or victimisation falls to be revisited.  It is clear, from paragraph 136, that the issue of what triggered the resignation was approached by the Tribunal by reference not only to the history of victimisation it found but, most significantly, by reference to complaints (xxvii)-(xxx) upon which it made findings at paragraph 135.  There is, in our judgment, no sensible way in which a decision favourable to the Claimant under issue (xxvi) could lead to a re-opening of the issue whether the dismissal was by reason of sex discrimination or victimisation.  The remission of the case will be for the limited purpose to which we have referred.  
23.	We may say in conclusion that we have been greatly assisted by the efforts both of counsel for the Appellant and Miss Bone who has, in relation to a highly complicated area of the law and a highly complex series of facts, produced written skeleton arguments which were illuminating and succinct and has matched that standard in the quality of her oral submissions.  We are very grateful to her for those.  Both appeals succeed.