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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Davies v CIB Ltd (t/a City People) [2003] UKEAT 1123_02_1305 (13 May 2003) URL: https://www.bailii.org/uk/cases/UKEAT/2003/1123_02_1305.html Cite as: [2003] UKEAT 1123_2_1305, [2003] UKEAT 1123_02_1305 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE WALL
MR D J HODGKINS CB
MR D NORMAN
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | Mr R O'Dair Representative Free Representation Unit Peer House 4th Floor 8-14 Verulam Street London WC1X 8LZ |
For the Respondent | No appearance or representation by or on behalf of the Respondent |
THE HONOURABLE MR JUSTICE WALL
"I can't take this any more, I have had enough I am handing my notice in."
"It is the practice in the Region for the evidence of witnesses including the Applicant and the Respondent to be given by reference to their written statements and then to be cross-examined by the other party. You must accordingly bring to the hearing 5 copies of the written statements of witnesses you intend to call. Experience has shown that it is helpful to both sides and to the Tribunal if the parties can liaise in advance and exchange witness statements on a date before the hearing."
Indeed, directions are frequently given that witness statements should be exchanged by a given date. The Tribunal continued by pointing out that Ms Davies' witness statement made no reference to the matters said to be included in Ms Cox's statement, although Ms Davies had mentioned Ms Cox in paragraphs 2, 4 and 6 only of her witness statement - but not in connection with the matters which are now said to be in Ms Cox's statement.
"Dear Sir
I am writing to inform you that my client intends to call a Ms Toni Cox to give evidence in this case. Ms Cox has only just been found which is why no witness statement has been produced and cannot attend until tomorrow. My client says that Ms Cox had told her that she has been pressurized not to attend by the Respondents and for this reason I do not intend to make any formal application till Ms Cox is safely within the building tomorrow morning. I thought I ought nevertheless to give you advance warning ex parte."
Of course, Ms Cox did not attend on the morning of the 23rd .
"as we have a serious situation which has arisen regarding Michelle Davies"
The letter then goes on:
"It is important that we speak to you in person as soon as possible because your input into this matter may help our investigation.
We stress that this matter will not affect your employment in any way and assure you that your conversation with us will be dealt with in the strictest of confidence."
And then this paragraph:
"We would also like you to know that one of our consultants may possibly be leaving in January and a vacancy may arise. If you would like to consider re-applying for the position we would notify you nearer the time and seriously consider your application.
We would appreciate you contacting Alex or Melvyn as soon as you can on the above number."
"Due to her pregnancy, we really do need your statement, which for you will be the end of the affair completely.
With a written statement from yourself there will be no further involvement.
Please give this your best possible attention.
If you are still unsure, or apprehensive, please call me, very best wishes."
"I feel there is more to this situation than you are letting on. In your letter of 25th October 2001 you mention that Michelle is pregnant. There was no mention of this when I spoke to you previous and I feel City People have tried to cajole me into giving evidence against Michelle without fully explaining the circumstances.
When Alex first spoke to me he said he wanted me to put in writing the reason why I left City People because he had a reference from "some agency". Alex then went on to say that he needed me to write, what I believe to be, a discriminating letter explaining in full detail what Michelle was like to work with, so he would know what to say in the 'reference request'.
From my own experience, which has led to believe that Michelle's pregnancy has a lot to do with your predicament, I know Alex has a problem with a member of his staff getting pregnant, as he once said to me one morning when discussing children "No mention of babies please, any sign of babies I will have to get the special doctor to scrape it all away". This is an unacceptable thing to say along with accusing me of being racist towards Nico and other numerous occasions where by I was shouted at and spoken to like a child.
I therefore think I am the wrong person to look towards for support against Michelle."
"It is not a proper exercise of the Court's power under the rules or its inherent power to strike out a case where the claimant has been found to be in contumacious breach of the rules or an order of the Court or even is guilty of fraud on the Court ….. if it can be shown that notwithstanding the claimant's conduct there is no substantial risk that a fair trial of his claim cannot follow ….. I agree with the conclusion of Mr Justice Laddie in the Swaptronics case, that to conclude that a contemnor should have his case struck out by reason of his contempt notwithstanding that the Court takes the view that a fair trial can follow is likely to be a breach of Article 6.1 of the European Convention on Human Rights as being a breach of the contemnors' right to a "determination of his civil rights and obligations" at "a fair and public hearing within a reasonable time by an independent tribunal established by law."
"22 In the afternoon of 19 September 2001, Ms Davies was interviewing a candidate. Mr Jolobis was on the telephone at the time and asked Ms Davies to keep her voice down. Ms Cali and Ms Baxter were present and both gave evidence confirming this. All the evidence, including that of Ms Davies, is that Ms Davies stood up, said she was resigning, asked Ms Cali to take over the interview and left the office. Ms Davies went home.
23 Ms Davies told us that when she arrived home she telephoned Ms Spencer. Ms Spencer confirmed that she received a call from Ms Davies at 5.30 pm approximately. Ms Spencer told us that the discussion in the telephone call was about notice pay and references and payment of wages. Ms Davies told us that she told Ms Spencer that she wanted to come back. There is no corroborative evidence that Ms Davies said that she wanted to retract her resignation and in view of the fact that it is not reflected in Ms Davies' letter of 19 September (page 6) she had failed to prove, on the balance of probabilities, that in the telephone call to Ms Spencer she said that she wished to retract her resignation."
So that, in our judgment, is an important finding of fact by the Tribunal that she did not retract her resignation in the telephone conversation as she had alleged in her IT1.
"Following yesterday's situation at work I thought it sensible to write down, my objection to the way I was treated, and the manner in which it occurred.
Although my behaviour after the incident was not my normal way of dealing with the situation, I did feel justified in leaving the office because of the way I was spoken to in front of a candidate. I felt completely humiliated in front of him whilst conducting the interview.
As you know, I interview in an open office, which has often required people asking for quiet, usually done through a hand signal to maintain our professionalism in front of prospective candidates. On this occasion, Nico, from his desk, asked '….. if I could be quieter …. ' - to which I replied, 'Yes, no problem'. Before I could return to the interview, he then began shouting saying '. that I always talk too loud and that I was only interviewing a candidate...'
I then asked Eileen if she could take over the interview, as I was both embarrassed and upset. She said that I should take it up with Nico as he was in charge. I couldn't carry on with the interview, because I was so upset, and felt that the only option left was to leave the office to try and calm down. You are aware I have a slight hearing problem, and I feel this should have been taken into account - that said I now realise that the way I behaved was also a mistake. For that I apologise."
This is then perhaps the crucial paragraph of the letter:
"I have always been very committed to my job, and this is still the case. I enjoy being part of the team and value my role as I find it very satisfying. I hope that, as mistakes have been made on both sides that I still have a place here and we can put this episode behind us and carry on as before."
"I hope that, as mistakes have been made on both sides that I still have a place here and we can put this episode behind us and carry on as before."
The Tribunal commented that the letter had been delivered by hand on the 20th and made no reference to the pregnancy.
"Following your resignation on Wednesday 19 September, we are looking into the situation. In the meantime we will be paying your wages in full until further notice and we hope to be in a position to advise you of our decision very shortly"
and by letter of 26 September, Ms Spencer wrote to Ms Davies accepting her oral resignation on 19 September, a letter received on the 29th. The Tribunal commented:
"Ms Davies own letter which crossed with that of Ms Spencer of 26 September is dated 27 September 2001 and questions why the Respondent needs a meeting to decide whether to accept Ms Davies' resignation. The letter confirms Ms Davies' pregnancy which was confirmed to Ms Davies following her scan of 20 September 2001"
"We have no doubt whatsoever and, hoping that this matter may well be tested in the Court of Appeal, perhaps impertinently, confidently assert that it is a matter of plain common sense, vital to industrial relations, that either an employer or an employee should be given the opportunity of recanting from words spoken in the heat of the moment. We agree entirely with the first conclusion of the industrial tribunal that, having done what they did, withdrawing the original spoken words, saying that a man was suspended and telling him that, in the circumstances, there was no dismissal."
(1) There had been suggestions about a pregnancy prior to Ms Davies' holiday, but the Respondent had understood this to be a concern that it might be ectopic;
(2) Mr Barker-Smith said that as far as he was concerned, he understood that on 19 September 2001, Ms Davies was not pregnant;
(3) The confirmation from the hospital of the pregnancy was dated 20 September;
(4) Mr Barker-Smith and Ms Spencer told the Tribunal in their evidence that Ms Davies' conduct on 19 September amounted to a dismissal offence, particularly in the light of two prior written warnings;
(5) Ms Davies had two final written warnings both to do with conduct and relationships with clients and colleagues;
(6) The evidence before the Tribunal was that Ms Davies had a volatile relationship with her colleagues and a number of people such as Ms Cali were not happy working with her; that had also applied to Mr Winter.
"What is our duty in those circumstances? We think the principle involved is the following: where there has been a conflict of evidence at the hearing before an industrial tribunal on a significant issue of fact, then the industrial tribunal's finding (i.e their acceptance or rejection of such evidence) must be made plain one way or the other. Express words are not necessary. That is clear from Union of Construction, Allied Trades and Technicians v Brain [1981] ICR 542, and in particular the judgment of Donaldson LJ at p.551. But the language must be sufficiently full and clear to make it possible for anyone to tell from a reading of the decision as a whole whether the members have believed the relevant witnesses or not. Failure by the industrial tribunal to provide that indication, expressly or by reasonably clear implication from the overall language of their decision, amounts to an error of law"
and he points to the fact that in that case Mr Justice Waite in the EAT found no alternative but to return the matter to the Tribunal for re-hearing.
"Mr Barker-Smith and Ms Spencer told the Tribunal in their evidence that Ms Davies' conduct on 19 September amounted to a dismissal offence, particularly in the light of the two prior written warnings."
Ms Davies had had two written warnings; she had a volatile relationship with her clients and they refused to accept the retraction of her resignation because of her conduct and not her pregnancy.