Appeal No.	 EAT/664/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 June 1998

Before
HIS HONOUR JUDGE J HULL QC
MR K M HACK JP
MR R JACKSON

FERNEY AUTO ENGINEERING LTD	APPELLANTS

MISS M PARDOE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR C BAYLISS
(Representative)
Messrs Reeves & Co
Solicitors
108 Beaufort Street
London SW3 6BU	
For the Respondent	MR C NEWBERRY QC

MS C NABIJAU
(of Counsel)
Free Representation Unit
49-51 Bedford Row
London WC1R 4LR	

	JUDGE J HULL QC:	This is an appeal to us by Ferney Auto Engineering Ltd from a decision of the Industrial Tribunal sitting at London North on 15 April 1997 under the Chairmanship of Mrs Martin.    To that Tribunal Miss Pardoe, the Respondent in this appeal, had complained that she had been unfairly dismissed.   By her IT1, her application to the Industrial Tribunal, she complained that she had been subjected to unfair dismissal, that she had been discriminated against by reason of sex and under the Equal Treatment Directive. 

	She had first been employed by the Appellants on 20 November 1995 and had finally been dismissed on 26 April 1996 when she was pregnant.   She is a lady now in her late twenties.  She was employed to carry out various duties including such matters as accountancy, (the Appellants are a firm who deal, among other things, in used cars and a number of accountancy records have to be kept there).   She reported her pregnancy to her employers on 26 February 1996 when she had been employed for about three months.   After that she had certain - complications would be the wrong word - but she had to attend on her doctor on a number of occasions or take a day off.    

	Eventually she was dismissed on 26 April.    At that time the auditors had discovered a number of errors, it was said, in the records for which this lady was responsible.   An attempt had been made to train her further, she had been given training when she first joined, and an attempt was made to train her further and it was said, therefore, that there should not have been these errors.   The employers said, before the Tribunal, that that was why they dismissed her.   In their IT3, their notice of appearance, they said:

“...the Applicant’s dismissal was not related to her pregnancy nor was she discriminated against on the grounds of her sex.   The Applicants work was not of an acceptable standard.   Her work involved work of an administrative nature.  However, the applicant found the work confusing and it involved a number of errors.   Please find attached two statements from Mr Antoniou the group accountant and the Marion Mann, the office manager.   Both these witnesses were familiar with the applicants work.   Their contents are self explanatory.   The Respondents have also replied to a sex discrimination questionnaire willingly and voluntarily.”

	It is worth looking at that questionnaire.   The questionnaire of course was served by the Applicant and it was addressed to Mrs Levy who was the principal of the Appellant firm.   Miss Pardoe said, in paragraph 3:

“I believe my dismissal was directly related to my pregnancy and by dismissing me you acted contrary to the Sex Discrimination Act.”

	In her account of the matter given in that questionnaire, page 21 of the further bundle which has been given to us:

“On 26 April to my amazement when I arrived at work Mrs Mann wanted to see me.   She informed me that my work was not up to standard and I might have problems with my pregnancy.   That Mrs Levy would like to call it a day.”

	The employers replied to that questionnaire.   On the first page they said:

“I dispute that my treatment of you was unlawful discrimination by me against you.   My reasons for so disputing are because of your poor performance in carrying out your duties in accurate fashion to enable us to complete VAT returns, comply with trade description regulations and supply auditors with accurate data.    Nothing whatsoever to do with your pregnancy.”

Then, in the statement which was attached by way of amplification:

“Mrs Mann totally refutes comments made relating to conversation with Michelle Pardoe on 16,17 April.”

	It was explained that she (Mrs Mann) did not handle maternity pay, this would be done at the point in time when payments were due.   She did request, however, written confirmation of Michelle Pardoe’s date of confinement.   Michelle Pardoe had several other queries relating to maternity leave and Mrs Mann suggested that she spoke to Sharon Willis, who had just returned from maternity leave, as her queries related to non-company matters.

“Mrs Mann categorically denies telling Michelle Pardoe that the reason for her unsuitability for the position was related to her pregnancy.”

	That was the employer’s case in reply to the questionnaire and to the application which was made to the Industrial Tribunal.

	On the face of it the issue was fairly joined.   Miss Pardoe had not done the necessary service of two years to enable her to complain of unfair dismissal, simply, she was complaining that she had been discriminated against by reason of her sex.   The Industrial Tribunal heard the matter and they gave their decision, I will read parts of it:

“3.  It is not disputed that in mid January 1996 Miss Pardoe went to see Mrs Mann to hand in her resignation, on the grounds that she found the work confusing and felt she could not cope.   Mrs Mann reported that conversation to Mrs Levy and it was agreed between them that Miss Pardoe should be encouraged to stay and offered additional training...
4.  On 26 February Miss Pardoe had her pregnancy confirmed by the hospital and on her return to work informed Mrs Levy.   Mrs Levy had no recollection of this conversation, but it is not disputed that at the time of her dismissal the company knew that she was pregnant...   The company employ other women who have taken maternity leave and returned, and it did not appear to be a problem.   Mrs Mann’s evidence was that she knew nothing about the statutory provisions relating to maternity leave and had referred the Applicant to Mrs Levy and to another employee recently returned from maternity leave.
5.  By mid March Mrs Levy was receiving reports from Ms Baldwin and from Mr Antoniou, the accountant, about errors occurring in Miss Pardoe’s work, notably to do with VAT returns, but she did not speak to Miss Pardoe about the quality of her work or instruct anyone else to do so.   Subsequently, in March when the auditors began work on the company’s accounts, other errors were discovered, but once again nothing was said Miss Pardoe.
Mrs Mann knew nothing of any complaints and her explanation of any lack of warning to Miss Pardoe was that it would not have been helpful at a time when Miss Pardoe was being encouraged to be confident in her work.   Mr Antoniou’s evidence was that prior to the middle of March the company’s accounts had been the responsibility of a firm of accountants for whom he worked.   He was appointed group accountant on 18 March.   He was aware that “Michelle was making a few mistakes here and there”.    Although he agreed that in management terms Miss Pardoe probably reported to him, he had not spoken formally to her about her performance.
6.  However, on 24/25 April further errors were discovered by the auditors, and on that basis Mrs Levy came to the conclusion that the company could not afford to continue to employ Miss Pardoe.   Her evidence to the Tribunal was that the company had trained and re-trained her and had no further resources for any further training.   Her work was putting the company’s position in jeopardy and it was no longer possible or practicable to keep her.   Her explanation for the summary dismissal was that Miss Pardoe was still within her initial training period and under her contract could be summarily dismissed.   Mrs Levy had instructed Mrs Mann to dismiss Miss Pardoe, and this she had done on the morning of 26 April.   The dismissal had nothing to do with the Applicant’s pregnancy.   In Mrs Mann’s statement she had said that she could not remember the exact words she had used to Miss Pardoe, but stated that she had stressed the difficulties experienced in her department during her absence which had led Mrs Levy to make her decision.”

	Then they say the Applicant’s account of the matter does not differ in material respect until two days before her dismissal.  She says that no-one had spoken to her in her job about her performance.   Then, coming to 26 April (she referred to certain problems, when she had to go home for a day or two) she says:

“7.  ...On 26 April she returned to work and was told by Ms Baldwin that Mrs Mann wished to speak to her.   Mrs Mann’s words to her were that, “because she was having difficulties with her pregnancy Mrs Levy had decided to call it a day.”   She left the company immediately after that interview.
8.  The case for the Applicant was put by Counsel on the basis that there was no direct evidence of the reason for dismissal but that a Tribunal could and should draw inferences from the evidence that the real reason for the dismissal was not lack of competence but pregnancy.”

	That, in the circumstances, was a rather strange thing to say and makes one wonder whether Counsel had overlooked the fact that her client was saying expressly that it was because of difficulties with her pregnancy that Mrs Levy had decided to call it a day.    Then the tribunal go on:

“The Respondents argued that the Applicant’s case was based on Miss Pardoe’s evidence of what Mrs Mann had said to her, which it said, and which was denied, would constitute direct evidence of the reason for the dismissal.   The Respondent’s real case, they said, was that the dismissal was due to the Applicant’s incompetence and there was sufficient evidence for the Tribunal to come that conclusion.”

	The Tribunal went on to deal with this conflict in the evidence:

“We found Miss Pardoe to be a truthful witness and Mrs Mann to be vague.   Her position within the company was very ambiguous.   She apparently had personnel responsibility for all the female staff, but on her own admission knew nothing about employment practices and procedures.   She was effectively at Mrs Levy’s beck and call and when told by Mrs Levy to dismiss Miss Pardoe she did as she was told.   We find it probable that she wished to soften the blow of Miss Pardoe’s dismissal and that it is more likely than not that she spoke the words alleged by Miss Pardoe...”

	That, one would say by way of comment, clearly is not finding at that stage that the dismissal was due to gender, or anything arising from gender, that was finding that Mrs Mann had said those words in a humane and sensible way.

	The Tribunal went on as follows:

“10.  We do not however think that is the end of the matter.   The Respondent’s have said that they dismissed Miss Pardoe because she was incompetent.   They might well have had grounds for questioning the accuracy of her work, but not once did anyone, neither Ms Baldwin nor Mrs Mann nor Mr Antoniou nor Mrs Levy, attempt to warn Miss Pardoe that her work was unsatisfactory and that her job was at risk.   The impression they have given the Tribunal is that the role of Used Vehicle Sales Administrator was a difficult one to fill and in spite of Miss Pardoe’s own anxieties about the work they had wished to retain her.   We find that had Miss Pardoe not been pregnant they would have continued to employ her, at least in the short term.   We believe the decision to dismiss was triggered, not by the auditor’s findings, but by the two days’ absence, and that therefore the principal reason for Miss Pardoe’s dismissal was her pregnancy.”

	So they found that the Application was well-founded.

	On the face of it that, if one may say so with respect to the Tribunal, is a perfectly rational decision in which they found that the Applicant, Miss Pardoe, was a reliable witness and made inferences, not primarily from the conversation with Mrs Mann but from all the circumstances of the case to the effect that, on balance of probability, they thought that she had been dismissed by reason of pregnancy.   They had strong reasons for thinking that, in the history of the matter.   They reached their conclusion, it was not, clearly, an inevitable conclusion.

	The ground of this appeal is essentially a mishap which occurred in the course of the hearing.   Both sides were represented by Counsel and, accordingly, the Tribunal would be expected to have more assistance than it otherwise would do.   The Appellants gave evidence first, whether by agreement or otherwise, and their witnesses,  therefore, were cross-examined by Counsel for Miss Pardoe.

	It is said, and not denied, that is was not expressly put, to Mrs Mann in particular, and to Mrs Levy, that there had been this conversation in which it was said, or might be thought to have been said, that it was in connection with her pregnancy that she was being dismissed.   This had not been put. 

	It has, I think, for 200 years, been the etiquette of the Bar that the material parts of the opposite party’s case must be put to the first party who gives evidence and calls witnesses.   I think it was Lord Mansfield who said:  “it is not open to Counsel to ask the Court to disbelieve a witness who has not been challenged on the point in question.”   That is part of the ordinary duty of fairness which every court wishes to observe and which it is the duty of Counsel to help the Court to observe.   The duty to see that proceedings are conducted fairly is not only the Court’s duty but also the duty of Counsel.

	It is not the position that the Court itself is bound by the same rule.   The Court, of course, has to do its best to arrive at the truth on the basis of all the evidence which it has heard.    The Court must say, untrammelled by any formalities, which witnesses it believes and which it disbelieves.   Clearly if a witness has not been challenged on a particular point the Court may wish the witness to be recalled and challenged on that point.   The Court may wish to take other steps if it considers that the conduct of the case has been unsatisfactory.   It may wish to allow a party to re-open his case generally.   There are all sorts of possibilities.

	It seems to us that these rules can hardly apply in their strictness in the Industrial Tribunal.    Clearly if Counsel attend the Tribunal the Tribunal can reasonably expect that they will conduct themselves in accordance with the etiquette of the Bar.   But this is not to be equated with proceedings in the High Court or the County Court or any other Court of Law.   The Industrial Tribunal is charged by Parliament with the duty of enquiring into the facts.   It has an inquisitorial duty and it is the duty of the Tribunal to make such enquiry as it thinks right to ascertain the truth from the various witnesses.

	What happened in this case was that Counsel for the employers, having heard the evidence of Miss Pardoe, complained to the Tribunal that these matters had not been put to his witnesses.   In those circumstances, of course, it was open to him to say one of two things.

	He could say, “in those circumstances my learned friend is not entitled to ask you to disbelieve the witnesses on those matters which were not put to them”.   That he was entitled to do and seems to have done.

	He could have said, “I ask for my witnesses to be recalled, with the leave of the Tribunal, so that these matters can be put to them”.   That, we are told, Counsel did not do.

	I would refer to what Mr Bayliss has said to us on behalf of the employers and it is by reference to his admirably short Skeleton Argument.   Having set out some of the matters which I have referred to, Mr Bayliss said as follows:

“4...on the Applicant’s own testimony there are clear inconsistencies.”

	(Those arise from the various documents I have referred to; the application and questionnaire and so on.)

“Hence, the importance of the Applicant’s Counsel in putting to Mrs Mann whichever version her client had instructed her to give.   This failure renders the hearing unfair to the Respondents for the following reasons:-
a. The Respondents were disbelieved on an issue they had not been given a chance to respond to in cross-examination.   (Aberdeen Steak Houses v Ibrahim [1988])
b. If the Applicant’s Counsel did not put the crucial conversation it implies she had no instructions on the conversation which could lead a fair Tribunal to believe on the balance of probabilities the Respondent’s version.
c. If it was simply an oversight Counsel for the Applicant and for the Tribunal if acting reasonably and fairly should have asked Mrs Mann to be recalled. 
5.   It is a basic principle of fairness that the parties in their representations should be given the opportunity to be heard on an issue which is fundamental to the relevant decision.   This rule is even more important when the credit of a witness is being questioned.   The consequent failure of the Tribunal to recall Mrs Mann breached this principle.
See Hereford and Worcester County Council [1986] IRLR 168
Slaughter v Brewen & Sons [1990] IRLR 426
Laurie v Holloway [1994] (ICR 32).
6.  Given the Tribunal’s failure to hear Mrs Mann properly tested there was no evidence upon which a reasonable Tribunal could support their conclusion, Piggott Brothers & Co v Jackson [1991] IRLR 309.
7.  Further... the Applicant’s evidence on any reasonable view was contradictory (ie. three different versions were presented).   Mrs Mann’s evidence in chief was one of denial that pregnancy was mentioned.   On the balance of probability no reasonable Tribunal properly directing itself could have found that the Applicant’s version was correct.”

	That, it appears to us, is making far too sweeping a generalisation from the professional rule to which I have referred.   The mere fact that it is the etiquette of the Bar and, of course, the usual practice, to put one’s case to the opposite party in the interests of fairness does not mean that because that is omitted through mishap or some other cause there is necessarily a miscarriage of justice.   Nor does it mean that the Tribunal is not in a position to form a view on the matter.

	From the start this was an application on the ground of sex discrimination.   Mrs Mann and Mrs Levy were called.   It is inconceivable that their own Counsel did not put to them the substance of what they understood to be the case:    Did you at any stage suggest that pregnancy was the cause or part of the cause of this?    Was that in your mind?    Were you affected in any way by the fact of the pregnancy?   It is inconceivable that witnesses would be called without that being put to them.   It is also inconceivable, in view of the answers given, that the witnesses did not have that well in mind.

	It was equally open to Counsel for the employers, having made his protest, to say that those witnesses should be recalled.   He did not.   He was content with his submission.   He said, apparently, that in his view that would be doing the Applicant’s job for her, and he left that to Counsel for the Applicant.

	If the Tribunal were dissatisfied with what they heard and felt, in fairness, that they should have a witness recalled, that was something which they could perfectly well have done.   But the fact was that they had heard Mrs Mann and Mrs Levy and the other evidence when Mrs Mann and Mrs Levy were perfectly conscious of, and we are quite sure were asked about, the allegation of sexual discrimination and we have no doubt whatever that they denied that, probably in a good deal of detail and with a good deal of emphasis, in the course of their evidence.   It was up to the Tribunal to say whether they believed them, very possibly, indeed, it was at that stage that they formed an unfavourable view about those ladies’ evidence, so far as it went to the vital issue for them.

	Then they heard the Applicant and, of course, they would inevitably say to themselves, this is not quite what was said in cross-examination, and they comment themselves on the fact, which was really rather remarkable, that this case was basically one of inference for them, as it was put by the Applicant.   They record the retort to that which was put by the employers, namely, that it was in fact based on Miss Pardoe’s evidence and not on any matters of inference.

	They will have had all those matters in mind.   They might very well have wished to hear more:   they did not.   They felt able then to proceed, notwithstanding Counsel’s protests at what had happened, and in our view they were entitled to.   Any other view would mean that the employment of Counsel before a Tribunal meant that the Tribunal would have to proceed with a formality and a rigour which it did not have to proceed with when, as so commonly happens, the parties are in person or represented by lay representatives or somebody from the Citizens Advice Bureau not familiar with all the rules of advocacy, or even by a Solicitor who is not familiar with advocacy.   It would mean that employing Counsel imported a special duty so that even where Counsel, having made a protest of this sort, had not asked the Tribunal to recall witnesses, nonetheless the Tribunal should take it on themselves to recall witnesses.   

	We think that is going much too far.   We think that nothing has been said here to suggest that this Industrial Tribunal departed from their fundamental duty of fairness, or failed to listen fairly to the witnesses, or were in any way disabled way from making up their minds which parts of the evidence they should accept.   We think they were quite entitled to proceed in the way they did.   The issue was fairly joined.   It may have been that the advocacy was unskilful.   Advocacy is a difficult and perhaps a dangerous craft.   They no doubt considered very carefully what was said to them by Counsel.   They felt able to proceed to their decision and we think it is a rational decision which they were entitled on the evidence before them to reach and that the mishap, as I have called it, did not disable them from doing their duty on the material which they had before them.

	Therefore, notwithstanding what is said to us by Mr Bayliss, we find this appeal has to be dismissed.