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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Cheapside (SSI) Ltd v. Bower [2002] UKEAT 678_01_1903 (19 March 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/678_01_1903.html Cite as: [2002] UKEAT 678_01_1903, [2002] UKEAT 678_1_1903

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APPEARANCES

 

For the Appellant	MR C JEANS QC (of Counsel) Instructed By: Mr R Eldridge Messrs Berwin Leighton Paisner Solicitors Adelaide House London Bridge London EC4R 9HA
For the Respondent	MISS H WILLIAMS (of Counsel) Instructed By: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW


 


JUDGE PETER CLARK:

1. In this case the applicant, Mrs Julie Bower, complained of constructive unfair dismissal, direct sex discrimination and breach of the Equal Pay Act / Article 141 of the Treaty of Rome on the part of her former employer SSL. She was employed as an analyst.
2. It is a substantial claim, vigorously contested on both sides. The hearing on liability before an Employment Tribunal sitting at Stratford under the chairmanship of Ms Vivienne Gay involved 18 days of evidence, followed by written and oral submissions by counsel, each speaking for a full day. Following a further two days spent deliberating in Chambers the tribunal promulgated their Decision with Extended Reasons on 4 April 2001. Those reasons run to 59 closely typed pages. In short the complaint of unfair dismissal succeeded, as did the sex discrimination claim in part. The alternative Equal Pay claim failed.
3. Against that liability decision SSL has appealed (EAT/678/01). The appeal has been permitted to proceed to a full hearing without a preliminary hearing being held. The substantive hearing is fixed for 19 and 20 June 2002.
4. Further, a remedies hearing took place before the same Employment Tribunal between 7-10 January 2002. By a Decision with Extended Reasons, itself running to 27 pages, promulgated on 8 February 2002, the tribunal awarded the applicant compensation in the total sum of £1,415,359.13p, principally ascribed to the sex discrimination claim. Against that decision SSL has also appealed (EAT/286/02). That appeal is now also listed for hearing with the liability appeal on the two days in June.
5. The matter comes before me today on an application by SSL for the Chairman's notes of evidence given at the liability hearing. Initially the Registrar ordered the whole of the Chairman's notes by a letter dated 13 December 2001, although not then requested to do so by SSL. When it was pointed out by the Chairman that this would involve substantial work the Registrar by a letter dated 12 February, indicated that she was unconvinced that the Chairman's notes would add any value to the case and referred the application for an inter partes hearing before me. I shall consider the matter afresh.
6. Before turning to the question of Chairman's notes I shall deal shortly with an application on behalf of Mrs Bower to file an Amended Answer. That is not opposed and accordingly I shall grant the permission sought.
7. It is clear from the authorities that where, as in the present liability appeal, the grounds advanced rely upon perversity as the error of law complained of, those grounds must be circumscribed by the true test, as revealed in cases such as Martin v Glynwed [1983] ICR 511, Piggott Bros v Jackson [1992] ICR 85 and British Telecommunications Plc v Sheridan [1990] IRLR 27. It is not permissible for the appellant to seek to reargue what are in truth factual issues permissibly determined by the Employment Tribunal as the tribunal of fact.
8. That feeds into the present application. I shall not order the production of Chairman's notes other than for permissible argument on appeal.
9. That plainly includes a contention that there is no evidence to support a material finding of fact. It will also include a contention that a conclusion reached by the tribunal was Wednesbury unreasonable, based in part on concessions made by a party in evidence not fully recorded in the tribunal's reasons. The touchstone is what is necessary by way of Chairman's notes for the proper disposal of the appeal.
10. With those principles in mind, I turn to the amended grounds of appeal. For the purposes of this application only Mr Jeans QC conveniently puts the relevant grounds into two groups.

(1) Grounds 2-4.

Here the contention is that there was no evidence to support the tribunal's conclusion that the applicant was an "average analyst". The point is developed in those grounds. That finding was, I am satisfied, fundamental to a number of significant conclusions reached in this case, both as to liability and as to remedy.

Ms Williams submits that whilst there might not have been oral evidence to that effect, the tribunal's finding was justified on the basis of documentary evidence adduced and referred to in her Amended Answer.

As to these grounds I shall direct that the Chairman be requested to provide any notes of evidence supporting that finding that the applicant was an "average analyst" by reference to grounds 2, 3 and 4 in the Amended Notice of Appeal.

(2) Grounds 6 and 11.

Here the issue is really one of Wednesbury unreasonableness. SSL have produced a schedule of extracts from the evidence as recorded by them during the hearing. I accept

that in relation to ground 6(b) of the grounds of appeal it is necessary for the Chairman to provide her notes of the applicant's evidence in cross-examination, given on 3 August 2000, and identified at paragraphs (ix), (x) and (xi) of the Schedule (page 2).

The Chairman is kindly asked to provide those items identified above, together with the notes of the whole of the evidence of the witness Ms Cox, and those parts of the evidence given by Mr Wyatt in cross examination which go to his decision to institute disciplinary proceedings against the applicant and to impose the disciplinary sanction of a formal warning (ground 11).

In summary, the Chairman is asked to provide her comments and notes of evidence as set out in my order.

Save as is specifically ordered in this judgment the remainder of SSL's application for Chairman's notes is dismissed on the grounds that no further notes of evidence are necessary for the fair disposal of the appeal. For the avoidance of doubt, no notes of the evidence given at the remedies hearing are sought or required.

I direct that a copy of this judgment, the order of the EAT, the Amended Notice of Appeal and the Amended Answer shall be sent to the Chairman forthwith.