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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Fletcher v Railtrack Plc [2000] UKEAT 1045_98_0903 (9 March 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/1045_98_0903.html Cite as: [2000] UKEAT 1045_98_0903, [2000] UKEAT 1045_98_903

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APPEARANCES

 

For the Appellant	MISS C McCLAREN (of Counsel)
For the Respondents	MISS J McNEILL (of Counsel) Messrs Kennedys Solicitors Longbow House 14-20 Chiswell Street London EC1Y 4TY


 


MR JUSTICE BURTON: This an appeal by Mrs Fletcher against the decision of an Employment Tribunal held at London (North), chaired by Mr Thomas, in relation to a dismissal by that Tribunal of applications made by Mrs Fletcher against Railtrack Plc as Respondent, for unfair dismissal and sex discrimination under the Sex Discrimination Act 1975. Mrs Fletcher represented herself at the Employment Tribunal, but today has had the benefit of Miss McClaren of Counsel appearing pro bono on her behalf, who has argued the matter with determination and pertinacity.

1. Mrs Fletcher felt that there were a number of things wrong with the decision of the Tribunal. It is understandable that she should feel that the Tribunal got a good many things wrong on the facts, because of course she had given evidence on facts and had been disbelieved by the Tribunal, as I shall recount in a moment. But, of course, as has been explained to her now on a number of previous occasions, she is unable to overturn any conclusions of fact by the Tribunal unless they can be shown to have been conclusions to which no reasonable Tribunal could come, or which were perverse, and that has not been sought to be argued on her behalf, or indeed, by her.
2. The matter came before the Employment Appeal Tribunal by way of preliminary hearing and out of the raft of complaints or allegations that she would have wished to have made against the conclusion of the Tribunal and through that Tribunal against the Respondents, only four points were identified by this Tribunal as appropriate for argument on this appeal, and a fifth was to be dealt with separately and by a separate appeal which is only before us this afternoon for the purposes of directions and to which we will turn later.
3. The four grounds of appeal in fact are subsumed, as has been accepted by Miss McClaren on behalf of the Applicant, into three, because there is no distinction to be made between the first and second. The fourth ground (now third) relates to the unfair dismissal application and the first three (now two) relate to the sex discrimination part of the case. We considered it sensible and appropriate to deal with the unfair dismissal ground first, and that is what Miss McClaren then did.
4. The Applicant has made it plain that she has only launched these application in order to seek reinstatement or re-engagement in her employment and not in order to recover compensation; she has made that plain at all times. The only way in which a Tribunal could have ordered reinstatement or re-engagement would be by virtue of her being successful on an unfair dismissal application both as to liability and then in due course as to the remedy of reinstatement or re-engagement. Her claims for sex discrimination, therefore, have never been accompanied by any claim for compensation but they nevertheless have been heard. Her explanation to the Employment Appeal Tribunal is that the reason she wanted the sex discrimination matters heard was in order to set the unfair dismissal claim more fully into what she regarded to be its factual context.
5. Before I turn to these three grounds of appeal, I should indicate that which I have already referred to, namely the conclusion of the Tribunal so far as the oral evidence is concerned which they heard. In paragraph 2 of his reasons, Mr Thomas, in giving the unanimous decision of the Tribunal, indicated the witnesses from whom the Tribunal had heard: Mr Gardner, Mr Widden, Mr Welvaert, Mr Barrie, Mr Rolf and Ms Morgan, in addition to the Applicant. The Chairman concluded at paragraph 2:

"Having heard the evidence from these witnesses and from the applicant the Tribunal concludes that on all matters of fact where there is a conflict between the parties, the version of the respondent is accepted. The respondent's witnesses gave evidence in a measured, unadorned yet specific way without prevarication. The applicant was in contrast vague, often reluctant to give specific detail and generally incredible sometimes to the point of being bizarre."

6. I turn to deal first with the unfair dismissal ground. This was formally characterised in this way by Miss McClaren in her able skeleton argument:

"The Tribunal failed properly to consider the reason for the Appellant's dismissal."

When she supplemented that, by way of oral submission, the point crystallised to some extent. We were referred to four paragraphs of the Chairman's decision in this regard. In paragraph 25 of the decision, in the course of dealing with the factual basis of the 20 allegations of sex discrimination, one of which was the dismissal itself, the Chairman said as follows:

"Allegation 20 namely that she was dismissed unfairly by reason of fabricated grounds linked to the harassment which she complains she has been subject to over the years is an argument which is rejected. She was dismissed for an admissible reason which was well based on oral evidence and documentary evidence indicating that she had failed to obey instructions from two of her managers. There is no evidence before us to suggest that in these circumstances she has been treated less favourably than any other person on the basis of her gender."

That was a shorthand summary of the conclusions of fact to which they had come on unfair dismissal, set in the context of preparatory findings with a view to their eventual conclusion on sex discrimination.

7. In paragraph 30 the Chairman recorded the circumstances in which the dismissal occurred and he stated as follows:

"The applicant was then suspended. The disciplinary hearing heard on 7 July the charge having been set out in the letter of 4 July for Mrs Morgan at page 359 of the bundle. The disciplinary hearing took place on 17 July when the applicant was represented by a very experienced trade union representative in which all the matters were identified which were necessary for discussion and properly aired. Further the hearing had been convened in accordance with and on the advice of the personnel department following the respondents' procedures as contained in their grievance disciplinary handbook. The respondent took the view on the facts that trust and co-operation between employer and employee had broken down and that two specific instructions had been disobeyed by the applicant. The decision to dismiss was based upon those considerations and background."

This, as can be seen, forms part of the recital of the history of the dismissal.

8. In paragraph 35 the Chairman recorded as follows:

"The penalty of instant dismissal is one which at first blush would seem a harsh penalty for an individual with 17 years employment. Nevertheless it must be seen in its proper context as a dismissal which involved a breach of trust between the employer and the employee and was one which the employer in that context could properly arrive at being within the band of reasonable responses of a reasonable employer. The respondent had "come to the end of the line" in attempting to accommodate the applicant's employment concerns and behaviour. This was reasonable."

9. The actual conclusion of the Employment Tribunal on unfair dismissal is contained against the background of its findings of fact in paragraph 47:

"Turning to the question of unfair dismissal we conclude that the dismissal was by reason of her conduct which was for a deliberate disobedience of a reasonable instruction which in the circumstances led to the breakdown of trust and confidence between the employer and employee. …"

10. Miss McClaren has accepted that there was evidence upon which the Tribunal was entitled to find that there was deliberate disobedience of, in fact, two reasonable instructions by senior employees, and upon which the Tribunal could find that there was a breakdown of trust and confidence between the employer and employee. She submits that there is an inconsistency in the way in which the Tribunal deals with what in fact appears to have been their conclusion, namely that the breakdown of trust and confidence resulted from the deliberate disobedience of the reasonable instructions, as appears clearly in paragraph 47. She points to the first paragraph from which I have quoted, paragraph 25, in which there is reference only to the failure to obey instructions from two of the managers, and no mention of the breakdown of trust and confidence; to paragraph 35 which refers to breach of trust between the employer and employee but not to the disobedience; but then there is paragraph 30 – the statement that there had been a breakdown of trust and co-operation between employer and employee and that two specific instructions had been disobeyed by the Applicant. We are entirely satisfied that although the phraseology may have been different, that may be explained by the different roles played by those paragraphs in the course of the decision, which I have sought to explain, but that the conclusion of the Employment Tribunal is that set out in paragraph 47, which is in no way inconsistent with the earlier descriptions in the earlier paragraphs. It is plain not only that there was evidence upon which the Tribunal could find that there was a breakdown of trust and confidence and also deliberate disobedience, but also that the breakdown of trust and confidence resulted from that deliberate disobedience, as recorded in paragraph 47. When one looks at the evidence recorded in the witness statement of Mr Barrie, which evidence was expressly accepted by the Tribunal when they rejected the evidence to the contrary of the Applicant, in the passage between paragraph 13 and 19 of that statement he explains the deliberate disobedience to the instructions, and in paragraph 17 he records:

"I felt the fundamental issue in relation to the charge was one of trust and co-operation between the employer and employee. … I did not actually believe her version of events…"

Then in paragraph 19 he said this:

"… bearing in mind that we had never had any problems before in the few months we had worked together, clearly there was a complete lack of trust and the employment relationship had broken down. I certainly felt that she was not someone I could trust or rely upon to work for me. …"

It appears to us that that is the clearest evidence which the Tribunal were entitled to, and it seems did, accept, that there was a direct causal relationship between the breakdown of trust and confidence and the serious misconduct which they found.

11. Miss McClaren's further points were as follows. First she submitted that the reference in paragraph 30 to 'background' indicated that there was something else in the Tribunal's mind as to the reason for the dismissal than those two serious matters of misconduct leading to the breakdown of trust and confidence, and if there was, first, that the Tribunal did not indicate what it was, and secondly, they ought to have found that the employers, if they had something further in mind, should have indicated what it was, and failed to do so. The Tribunal decision is not in the clearest of English and there appear quite clearly to be some punctuation and grammatical mistakes in it. It seems to us quite plain that on any sensible reading of paragraph 30 the last sentence of it should be read as meaning:

"The decision to dismiss was based upon those considerations and against that background"

because the paragraph is indeed setting out the background to the dismissal. The fact that the decision was based upon those considerations, namely the two specific instructions disobeyed, is made quite clear from the rest of the decision which I have referred to. We are entirely satisfied that the Tribunal was not beginning to conclude that the employers dismissed the Applicant by virtue of any background.

12. The second submission Miss McClaren made, which fortified the first but was a different way of putting it, arose out of paragraph 35 of the decision. Paragraph 35, which I have quoted above, is the paragraph which addresses the question as to whether, in the light of the conclusions of the Respondents that these two serious matters of misconduct had been committed, it was reasonable for the employers to have dismissed. The paragraph, which I have quoted, recites that dismissal was "within the band of reasonable responses of a reasonable employer", that is a decision which this employer could reasonably come to, notwithstanding the 17 years employment. It is plain that the reason why the Tribunal came to that conclusion was that it was satisfied that as a result of the serious misconduct, trust and confidence had broken down. If trust and confidence had broken down there was a repudiatory situation which the employers were entitled to accept, looked at from a common law point of view, and dismissal was a reasonable reaction looked at from a statutory point of view, based upon the findings of fact that the Tribunal made. They refer to a quotation from either the evidence, or it may be from a submission made to them, it is unclear, that the Respondent had "come to the end of the line". Of course if they were entitled to dismiss, then they had, indeed, come to the end of the line and that is the conclusion that the Tribunal comes to. It does not appear to us that the Tribunal is saying that the Respondent had or could have had anything in mind when dismissing other than the two serious items of misconduct as was clearly found at paragraph 47. Indeed, any other conclusion would be contrary to its own findings of fact. What Miss McClaren submits is that if the conclusion is that the Tribunal is saying that the Respondent had other matters in mind, apart from the two serious items of misconduct, then the Respondent ought to have put such other matters to Mrs Fletcher in the course of the disciplinary hearings. It seems to us that there is no principle of law over and above the ordinary law of natural justice which would require an employer to delve deep into its thinking and work out what it might perhaps subconsciously be thinking about, if in fact those are not the reasons for dismissal. At the end of the day the question of fact to decide is whether the employers were acting reasonably in treating the misconduct that was before them as sufficient for dismissal. The Tribunal unanimously in this case did so conclude. We do not find that there is anything odd, unconvincing or inconsistent in relation to the decision of this Tribunal or that there is anything to doubt the conclusion which it manifestly came to, which was that the Respondent acted reasonably in treating the two proved items of serious misconduct as sufficient for dismissal. In those circumstances, that ground of appeal is dismissed.
13. I turn to the sex discrimination allegations. The basis of this submission is set out by Miss McClaren in her skeleton as:

"The Tribunal failed correctly to apply the guidelines contained in King vs. GB-China Centre 1991 IRLR 513."

These are, of course, well known guidelines to be applied in this case. Miss McClaren accepts that the Tribunal expressly directed itself in accordance with those guidelines in paragraphs 39 and 40 of the decision, but she says, and this must obviously be a very heavy burden to take up, that, notwithstanding such correct express self-direction, in fact in the way it assessed the evidence it did not apply them. If there is no mention of the guidelines in the course of a decision then such an argument is much easier, although it may still be apparent from the decision that the guidelines were in fact being followed, well known as they are. Equally, of course, it is possible to be able to show, notwithstanding that the guidelines are set out, that the methodology of the thinking, or indeed the nature of the conclusions are such, that, although a tribunal says it applied the guidelines, it is manifest that it did not. So I indicate that it is a heavy burden, but it is not one that is impossible to fulfil, and it would certainly perhaps have been easier to analyse this decision if the Chairman had set out the guidelines before reaching the conclusions of fact rather than setting out the conclusions of fact and then indicating the basis on which those conclusions of fact had been arrived at, by reference to the guidelines. But that the guidelines were in fact applied seems to us to be entirely clear. Indeed, it is difficult to see any other basis for the giving of the careful consideration which obviously was given to this case, where the law was not only well known to the Tribunal but was cited to them, than that it was dealt with correctly. There were 20 allegations of sex discrimination which had been the subject matter of further and better particulars, 19½ of which, because half of the sixth allegation did not survive on out of time grounds, were carried through to the conclusions of the Chairman in the decision. Each of those 20 allegations are considered, the Tribunal having stated its premise of accepting the Respondent's evidence and rejecting the Applicant's, as questions of fact, but, it is quite plain to us, against the background of asking the questions which, they explained later in the decision, they were setting themselves to answer. It is quite true that in relation to each of the 20 allegations there is not repetitively set out the rubric time and time again such as, 'we have considered whether there is an actual comparator, there either is or is not, then we have asked ourselves whether there is a hypothetical comparator, and there is or there is not assistance from that conclusion in helping us to arrive at a conclusion that the Applicant was not treated differently at all, or, if treated differently at all, not treated so differently on grounds of sex.' It would, it seems to us, not have been necessary or helpful for the Tribunal to have done that. It would simply, as I have indicated, have been repetitive. Provided that they were asking themselves the right questions, they do not need to repeat those questions over and over again. It is clear to us that they were asking themselves the right questions. On some of the facts as analysed in the allegations they come to the conclusion that there was no unfavourable treatment of the Applicant at all. That carried within it the finding that the Appellant was not being discriminated against on any grounds whatever, because she was not being treated differently, which must, as Miss McClaren has accepted, include within it a conclusion that the Appellant was not being discriminated against on grounds of sex because she was not being discriminated against at all. In other cases it is plain, because there is an express reference, that there was a comparator being looked for. In a number of the conclusions an express statement is set out as, for example, at paragraph 14 in relation to the ninth allegation "a male would have been treated in the same way". It is put sometimes in different forms, for example at paragraph 25 in relation to allegation number 20:

"There is no evidence before us to suggest that in these circumstances she has been treated less favourably than any other person on the basis of her gender."

In other cases gender or sex is not specifically referred to, but, for example, in paragraph 24:

"There has been no evidence to suggest what other reasonable course could have been taken or why she has been treated less favourably."

At paragraph 17:

"Allegation 12 was nothing more than normal practice and accepted by the applicant as such in evidence. All were treated similarly."

At paragraph 15, the tenth allegation:

"… the policy and procedure … would have applied to all other members of his department."

The phraseology may be different, but what we are being invited to conclude, is that whereas, as Miss McClaren accepts, in relation to some allegations the Tribunal was manifestly asking itself the right question, Homer must have nodded in relation to some of the others, and it must have asked itself the wrong question. We are not prepared to enter into that kind of detailed consideration, because we think it quite inappropriate. It is quite plain to us that this Tribunal asked itself the right questions, and on any basis satisfactorily applied those questions in relation to many of the allegations, and in relation to the others when we are invited by Miss McClaren to assume that the right questions were forgotten, in fact, we can see no indication that the Tribunal asked itself the wrong question in relation to any of these allegations. In those circumstances, there is no ground, given no suggestion of perversity in the fact-finding, for saying that there is anything in this head at all.

14. We then turn to first and second grounds, which are combined, that the Tribunal erred in ruling out what I have called "half an allegation", part of number 6, which related to alleged harassment of Mrs Fletcher before 1996. This, as I have indicated, is part of the sixth allegation, the facts of which were set out, so far as relevant to the conclusions that the Tribunal did reach on that part which was not out of time, in paragraph 11. What occurred, it seems, was that there was an application made by the Respondents to seek to have, at any rate, this allegation ruled out of time as a preliminary issue. The matter came before the Regional Chairman, Mrs Mason, on 26th February 1998 when she concluded that the question of whether that part of the application was out of time was best decided by the Tribunal hearing the full matter, so no decision interlocutorily was made. It is in that context that it appears, very understandably and sensibly, that the Tribunal hearing the full matter decided that the right course would be to hear the whole of Mrs Fletcher's evidence, which it then did, including her evidence on the matter which was suggested to be out of time. The decision then as to whether the application, though manifestly out of time, was to be admitted on just and equitable grounds, was to be resolved effectively at half time. The Tribunal ruled it out, and consequently when Mr Gardner, who would have been the representative of the Respondent relevant to that particular part of the allegation so ruled out, came to give evidence, as he did, he gave evidence and was cross-examined, on all other matters, but Mrs Fletcher was not permitted to cross-examine him in relation to the allegation, or part of it, which had been ruled of time.
15. The grounds for Mrs Fletcher's appeal are characterised as separate grounds, but as is now accepted run together as follows:

"The Tribunal erred in law in their approach to the words "in all the circumstances of the case" in section 76(5) of the Sex Discrimination Act 1975 … the Tribunal's decision to refuse to allow the Appellant to cross-examine the Respondent's witness, Mr Robert Gardner, was tainted by that error."

The ground of appeal revolves round paragraph 41 of the decision, where the Chairman said this:

"There was a further matter of law that we must consider the effects of Section 76(1) of the Sex Discrimination Act 1975 which provides that a complaint of sex discrimination must be presented before the end of the period of three months beginning with when the act complained of was done. There is a provision in addition that the tribunal may nevertheless consider any such complaint which is out of time if in all the circumstances of the case … it is just and equitable to do so. We must be careful to distinguish a continuing act of discrimination extending with the period of time where for the purposes of the three month time limit the act is treated as being done at the end of that period from a single act of discrimination with its intended consequences namely that the time limit is determined by the date of the single act. A rejection for promotion is usually considered a single act but a discriminatory policy which continues in operations may be considered as a continuing act of discrimination. Further so far as the extension is concerned, we direct ourselves that the words "in all the circumstances of the case" refers only to the circumstances relating to the lateness of the claim. We do not have to consider the full circumstances of the case in order to decide whether it is just and equitable to extend the time limit. We have a wide discretion to do what we think is fair in the circumstances."

Miss McClaren has submitted that the Tribunal fettered its discretion or asked itself the wrong question in the light of the direction it gave to itself that the words "in all the circumstances of the case" refers only to the circumstances relating to the lateness of the claim. It was unclear to us, and still is, what matters it is suggested that the Tribunal did not ask itself, by virtue of such alleged failure to direct itself properly. In any event, Miss McClaren says that if the wrong direction was given in that way, the matter ought to be reheard by the Employment Tribunal, both because we do not have all the information which, at any rate unless Notes of Evidence were provided, was before the Tribunal, and further, that the consequential decision not to allow cross-examination of Mr Gardner would have to be revisited, and might itself have consequences in terms of what evidence would or should have been before the Tribunal in relation to its decision making.

16. We are entirely satisfied that there was no error in that direction. Miss McClaren accepts, as indeed she must in the light of authority, that the Employment Tribunal in deciding on questions of extension of time under section 76(5) is not required to look at the full circumstances of the case, or all the circumstances of the case, if by that is meant the merits of the case. That is clear from Hutchinson v Westward Television Ltd [1977] IRLR 69 per Phillips J in the Employment Appeal Tribunal and I quote from the headnote:

"In deciding whether "in all [the]circumstances of the case" it is just and equitable to extend the time limit, the Industrial Tribunal is not required to hear the entire case before making its decision. The words "in all [the] circumstances of the case" refer to the actual facts of the matter in so far as they are relevant to the matter under consideration in s.76(5)…."

It appears to us that that is the direction which the Chairman was giving himself and his fellow members in paragraph 41. He was contrasting with what he says in the next sentence, namely

"We not have to consider the full circumstances of the case …"

those circumstances which they did have to consider, namely those relating to the lateness of the claim. We are satisfied that the distinction there made is between all the merits of the case on the one hand, and facts which relate to the lateness of the claim. 'Relating to the lateness of the claim' is, in our view, a wide form of wording. It does not restrict the circumstances to the circumstances of the lateness of the claim, or circumstances which explain the lateness of the claim, but would extend to consequences of the lateness or matters arising out of or in respect of the lateness. Miss McClaren has drawn our attention to the dicta of Smith J in British Coal Corporation v Keeble [1997] IRLR 337, such matters as she there refers to, namely prejudice caused by the delay, the length of and reasons for the delay, the extent to which cogency of evidence is likely to be affected by the delay etc, are all, in our view, matters which relate to the lateness of the claim. We read the word 'lateness' as meaning 'out of timeness', i.e., relating to the out of timeness of the claim, and that is what we believe the Tribunal meant and it is that in accordance with which we conclude the Tribunal acted. They said to themselves, as was made clear in the last sentence of paragraph 41, that they had a wide discretion to do what they thought was fair in the circumstances. In paragraph 42 the Tribunal considered the questions as to whether the allegations were of single acts of harassment, and in paragraph 43 concluded that there was no evidence that the acts prior to April 1997 were part of any policy held or maintained by the Respondent. It is plain that the Tribunal was considering, as is said in terms in paragraph 42, the matters which did or did not render it just and equitable in the circumstances to allow the matters to proceed.

17. Despite our invitation to suggest any points which could or should have been made, or which were made but which were not considered, none have been put before us. The only suggestion that was made by Miss McClaren, on instructions from Mrs Fletcher, was that perhaps she had not fully appreciated the evidence she might have put forward and consequently, did not put forward any explanation for the delay as to why she had not, for example, pursued allegations in relation to alleged harassment prior to 1996, within the time limit. But even if there were anything in that, such matters as explaining the delay would plainly, even on the narrow interpretation of the alleged limitation to the discretion which Miss McClaren puts forward, have been circumstances relating to the lateness of the claim and not ruled out. So we do not believe that in fact the Tribunal shut anything out which was proper for its consideration, but in any event, we do not believe that it applied the wrong test or in any way fettered its discretion or asked itself the wrong question. In those circumstances, the appeal on grounds 1 and 2 is also dismissed, because Miss McClaren accepts that if there was no error in the discretion to exclude the allegation then there cannot be an error in refusing to allow certain matters to be put in cross-examination of Mr Gardner.
18. In those circumstances, this appeal is dismissed.

MR JUSTICE BURTON: We have dealt in our judgment with the appeal on the first four grounds, the subject matter of the Notice of Appeal by Mrs Fletcher. There remains a fifth ground.

19. That fifth ground is expressed in the amended Notice of Appeal served on 19th July 1999 as follows:

"The Respondents had conceded the issue of unfair dismissal at the Preliminary Hearing held on the 26th February 1998. The Interlocutory Order dated 7th March was not amended and at no time during the proceedings was the Applicant informed of any reason why the Respondents had altered their defence. This final amendment may require some fine tuning by the President as he has already suggested. I will be guided by his directions."

This was the form of the amended Notice of Appeal which had arisen as a result of discussions before the then President, with members including Mr Cowan who sits again today, on 11th June 1999. That preliminary hearing did not give leave to appeal on the fifth ground, but the way it was left was that it might be that it could give rise to a point of law which should be looked at the full hearing, but it could not form a ground of appeal at least until Mrs Fletcher had sworn an affidavit setting out the circumstances. The ground of appeal, therefore, was not specifically permitted, as it was in relation to the first four, and the first four went ahead as a one day appeal which has now been determined by us.

20. There was, subsequently, what was referred to as a hearing for directions on 29th September 1999 in which the President sat alone. Insofar as it could be said to have been a preliminary hearing, it was not a genuine preliminary hearing, because that is required to be carried out with three members; and therefore strictly, it appears to us, it would not be open for the President formally to give leave by way of a preliminary hearing if he is not sitting with members, but that is perhaps an overdue technicality, although it needs to be mentioned.
21. In the course of such hearing there was consideration as to what should happen to the fifth issue. Morison J by then had the benefit of the affidavits which had been directed to be served, and those included an affidavit by Mrs Fletcher and an affidavit by Mr Halliday, which asserted that there had indeed been an express concession or abandonment of the unfair dismissal claim by the Respondent in open court in front of Mrs Mason, the Regional Chairman. How far the evidence was clear to Morison J at that stage, I do not know, but I think I understand that there were also before the President on that occasion what are before us now in addition, namely the contrary evidence by Mrs Mason herself and a back sheet from Mr Green, Counsel for the Respondent. Issue was joined before Morison J on whether or not there had been a concession. Morison J said that Miss McNeill did not persuade him that the case advanced by Mrs Fletcher was so obviously hopeless as to be bound to fail.
22. How this was set out was at paragraph 4 of the judgment:

"It is the Appellant's case that at that hearing [26th February 1998 hearing before Mrs Mason] Counsel on behalf of Railtrack told the Employment Tribunal that Railtrack would not be disputing the unfair dismissal claim. She contends, therefore, that the finding made by the Employment Tribunal following the four-day hearing in June 1998 was unfair to her on that issue …"

The amended Notice of Appeal was not further affected, either by fine-tuning or otherwise.

23. What has been submitted to us today by Miss McClaren, contrary to the submissions of Miss McNeill, is that there are two issues which form the subject matter of what has been called the fifth ground of appeal. First, the issue as to whether in fact there was an abandonment or concession in the face of the Employment Tribunal, which would amount to an agreement by the Respondent not to pursue any defence to the unfair dismissal claim, and which would arguably then amount to such an agreement as would in law have prevented the Respondent from defending the unfair dismissal claim so as to deprive the Employment Tribunal from jurisdiction to hear the unfair dismissal defence when it came on for hearing. That is a point which Morison J has concluded was not obviously hopeless as far as facts are concerned, and which was, at any rate arguably, a point of law. The second ground which is put forward by Miss McClaren is that, if there was not in fact such concession, abandonment or agreement, there was a belief by Mrs Fletcher that there had been such a concession, genuinely held and held on reasonable grounds, which caused her to act or not act in certain ways, either to call evidence that she might not otherwise have called, or not to call evidence or give evidence that she would otherwise have called or given at the main hearing on 8th June1998. She asserts, it seems, that at some stage during the hearing starting on 8th June she raised the fact as to her having such belief, but nothing came of it. There would be a heavily contentious issue. It is clear from the review decision by the Chairman, Mr Thomas, darted 7th August 1998, that is evidence, if called, would be that at no stage was the point ever made before him by Mrs Fletcher that she believed that there had been a concession, or that she did not think the issue of unfair dismissal was live before the Tribunal, indeed to the contrary, such issue was fully debated and disputed from beginning to end. It would also be a matter of contention on behalf of Counsel and solicitors instructed by the Respondent. It would therefore need a full consideration of the facts, not only of the hearing on 26th February, which will be necessary for the purposes of the first issue, but also of the events between the 26th February and 8th June, so far not only as to what was inside the Applicant's head by way of her belief, but also as to what she did and did not do, and then a full consideration of precisely what happened in the hearing between 8th and 11th June including both what did happen and what might or should have happened. It is a much larger and a much wider issue.
24. We are firmly of the view as follows:

(1) This second issue requires, if it is to be pursued, an amendment of the Notice of Appeal. The Notice of Appeal, which I have read, makes no reference to this alternative case, that even if, contrary to the Appellant's primary contention, there was no such concession or agreement, the Appellant believed, and believed on reasonable grounds, that there had been such a concession, and acted in such and such a way as a result. That however would not then be enough, because that does not give any kind of reason for the appellate body to interfere with Employment Tribunal's jurisdiction, as it might arguably do if there was in fact an agreement to oust the jurisdiction such as is primarily alleged. There would need to be some kind of allegation coupled to that, namely, that as a result of the reasonable belief of Mrs Fletcher, and her conduct resulting therefrom, there was a procedural irregularity in the Tribunal chaired by Mr Thomas, namely that either there was an adjournment application which was refused and wrongly refused, and that does not appear to be the case, or there was some kind of flagging up of the difficulties under which Mrs Fletcher was said to be labouring, as a result of which there then ought to have been an adjournment suggested or volunteered and allowed, albeit unasked for, by the Chairman, such as to amount to a procedural irregularity by the Employment Tribunal. Not only does that seem an extremely unlikely position to be capable of being reached by Mrs Fletcher either in fact or law, to which we will turn in a moment, but also it certainly, in the unanimous view of this Tribunal, would require an amendment to the Notice of Appeal. It cannot be said to be included by some osmosis within the words, which I have read, that this final amendment may require some fine tuning by the President, and, even if it did, there was no such fine tuning by the President, and even if some fine tuning can be implied by virtue of words used by the President. I have recited the words primarily used by the President, which were predicated upon the Appellant's case being that at the February 1998 hearing Counsel stated to the Employment Tribunal that the Respondent would not be disputing the unfair dismissal claim, and were not predicated upon any alternative basis that Counsel did not so state but that the Appellant believed that he had. In those circumstances the case cannot be pursued without an amendment.

(2) We conclude that any application for an amendment would by necessity fall within, and not least because of the delay in applying for such an amendment, fail to comply with, the requirement which Morison J made as long ago as the original preliminary hearing on 11th June 1999, that any appeal of this kind would need to be supported by an affidavit. The appellant duly did comply with his requirement, and produced no less than two affidavits, shortform as they are, supporting the case that she was then putting forward that there had indeed been a concession. Issue on that has been joined by Mrs Mason, the Regional Chairman, and that is the purpose of such an affidavit, so that it can be put to the Chairman of an Employment Tribunal for comments. It is extremely unusual then for this kind of appeal ever to need oral evidence, because it is usually the case that the Chairman accepts what is said, or alternatively that agreed facts are resolved in one way or the other, without the need for a Chairman to be cross-examined, as will have to happen here. But what has not occurred is any affidavit being served in relation to what is said to have occurred at the second hearing of 8th to 11th June, which, unquestionably would be necessary here so that Mr Thomas can be asked to answer specific allegations, if and when made, in relation to what is said to have occurred or not occurred at the second hearing. If we were to now allow this ground in, we would have to order such an affidavit so that comments can be obtained from that Chairman; but we conclude that this should have been done in compliance with Morison J's order, if it is to be said in some way to have been explicit or implicit in his original order that this second issue too was to be pursued.

(3) However, having concluded that an amendment would be necessary and that an affidavit should have been served already or would now have to be served belatedly, we are entirely satisfied that it is not appropriate to give leave to amend in order to bring in this new head of claim:-

(i) As a matter of discretion, it is a long time after the matters in question. There has already been one appeal which has taken some time to come on and has been dealt with today. There will now be, in any event, a second relating to the events of the hearing in February, and, as a matter of discretion, this amount of time having passed, we are not prepared to allow a further amendment which will bring in a whole series of further extra facts, such as I have summarised, involving attendance and oral evidence by another Chairman, Counsel and solicitors in addition to Mrs Fletcher and any other witnesses she would call. It is quite inappropriate for this to be brought in now, so belatedly and by way of amendment.

(ii) In any event, on what we have seen, we conclude that this appeal would be hopeless. We conclude that the chances of Mrs Fletcher succeeding on the first issue are very slim in the light of what is in our papers, but she does at least have the advantage of Mr Halliday's evidence, which she served in accordance with Morison J's order. This second issue however seems to us all extremely tenuous, both as a matter of fact and, even if the fact of her own belief could somehow be established, that would require to be tested against every act she took, including the acts throughout the hearing before the second Tribunal. It would need to be linked to some kind of argument of law such as to show that there was some kind of procedural impropriety or unfairness resulting out of it. It is an animal of a completely different kind to the first issue, which is a straightforward point of law, if the facts can be established.

25. In those circumstances we reject the submission that no amendment is necessary. We conclude that it is necessary, and we reject the application for leave to amend. The only issue which will go forward to a full hearing of this appeal will be the issue as to what did in fact occur at the hearing before Mrs Mason, and as to whether on that occasion there was in fact a concession, withdrawal, abandonment or agreement by the Respondent in relation to the unfair dismissal claim.