Appeal No.	 EAT/242/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 July 2000

Before
MR RECORDER B LANGSTAFF QC
MRS T A MARSLAND
MR P A L PARKER CBE

MRS SUSAN JANE HAYES	APPELLANT

CHARMAN UNDERWRITING AGENCIES LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MRS L COX QC and
MS M TETHER
(of Counsel)
Messrs Norton Rose
Kempson House
Camomile Street
London
EC3A 7AN	

MR RECORDER LANGSTAFF QC

1	This is a preliminary hearing in which Jane Hayes seeks permission to proceed to a full hearing against the Respondent Charman Underwriting Agencies Ltd.  The appeal is against extended reasons given in November 1999 by the London (North) Employment Tribunal who had heard evidence over a period of some days in July and again in October. The Appellants claims, first, that she had been discriminated against on the grounds of sex and second that she had been constructively dismissed.  Those are the two outstanding matters.

2	We consider, having heard Mrs Cox this morning, that the issues raised by Notice of Appeal merit a full hearing.  For the assistance of the Employment Appeal Tribunal when it comes to consider the appeal, we should briefly set out our concerns about the extended reasons.

3	Firstly, it seems to us that so far as the issue of constructive dismissal is concerned at paragraph 54 the Employment Tribunal states a question or proposition of law.  They assert there is no general duty on the Respondent in a discretionary matter to act fairly.  There is only a duty, they say, not to act contrary to legislation.  We have some difficulty accepting the generality of that statement.   

4	It is arguable, it seems to us, that if for instance an employer allocates a bonus which is discretionary so that nine out of ten top staff get a bonus of say £10,000 or £20,000 and the tenth does not, the tenth might well feel that he has not been treated fairly.  The circumstances may be tantamount to the employer sending a coded message to such an employee, consistent only we think, in those circumstances with constructive dismissal.  Much must depend upon the circumstances.  It seems to us that by adopting the bald statement which it did the Employment Tribunal may not sufficiently have examined the circumstances in this particular case.

5	Mrs Cox has pointed out that the allegation of constructive dismissal is linked to the factual evidence which was considered in respect of the case of sex discrimination.  

6	Accordingly we have been inclined to accept her plea at that the whole issue should go forward to the Employment Appeal Tribunal for a full appeal hearing so that matters can be considered in the round.  However, this is not the only basis upon which we accede to her application that the grounds of appeal which relate to the sex discrimination claim shall also be heard and determined at an inter partes hearing.

7	She points out that the reasoning of the Employment Tribunal centres upon whether they accepted or rejected the evidence of Mr Charman.  He was the principal witness called for the Respondent.  

8	The Employment Tribunal have at paragraph 52 of their extended reasons sought to equate the honesty of Mr Charman with the absence of sex discrimination.  This, it is said, demonstrates an error of law in failing to appreciate that the consequence of the Nagarajan –v- London Transport decision in the House of Lords was that discrimination on the grounds of sex is not a state of mind, not to be determined by the honesty or veracity of a witness, but is a state of fact.  

9	So far as the facts are concerned Mr Cox has urged upon us that there was extensive objective evidence before the Employment Tribunal which would demonstrate the importance of the Applicant to the organisation of which she was an employee and would demonstrate the contrary of that which Mr Charman had asserted in the witness box.  Although he was cross-examined about much of that the Employment Tribunal say little or nothing of it in their extended reasons.

10	Indeed they focus so exclusively upon the veracity of Mr Charman that they describe the way in which the issues were put before by the Applicants or both parties as being a case in which the success of the failure the claim rested upon that which the Tribunal made of the honesty, acceptability and credibility of the central witness for the employer, Mr Charman.  We are told that that is not a fair reflection of the closing submissions for both parties.

11	Mrs Cox in her skeleton argument draws attention to four matters where she says there was no objective evidence to base the Tribunal finding on.  They are the date of the provisional allocation of earn out shares, secondly the finding by the Employment Tribunal that at a meeting on 15 June the Appellant had attempted to blackmail Mr Charman into giving her more favourable contractual conditions; thirdly that at a meeting on 16 June, Mr Charman denied in evidence in chief having said something which he then retracted in cross-examination but no reference is made to this by the Employment Tribunal; fourthly that although there are extensive criticisms of Ms Hayes as having been of abrasive character, there is no proper basis for such a finding in the evidence.  Her attack therefore is twofold: both on the absence of reference in the Employment Tribunal decision to objective material which would require, one might have thought, to be dealt with, secondly her complaint that the Employment Tribunal appeared to have taken into account in their findings evidence which it is difficult to find anywhere in the proceedings before the Employment Tribunal.

12	We think that those matters require further exploration and consideration and at the very least require some answer on the part of the Respondent.  In order to have those matters fully explored before a full hearing of the Employment Appeal Tribunal we consider that there should be disclosure of the Chairman’s Notes of Evidence of the cross-examination of Ms Hayes and Mr Charman, limited to those two witnesses; that in the bundle which Ms Cox and those instructing her will prepare, there should be at the very least the written and final submissions of both parties’ advocates to the Employment Appeal Tribunal, together with the written witness statements of those who gave evidence in chief, should that in the view of either the Appellant or the Respondent be material.  

13	We consider that a full hearing is likely to go into a second day, probably so far into a second day as to make two days a realistic estimate and that it should be listed in category B.