The claimant made claims against the respondent employer and a former colleague, complaining of sexual harassment. The claimant against the employer was settled out of court. The claim against the respondent employee was upheld. However, the claimant asked for an order that she be not required to attend the  hearing since the colleague’s ongoing intimidating behaviour leading up to the hearing had left her scared of attending and being cross-examined by him in person. The ET allowed the application and found against the colleague in the claimant’s absence. The colleague appealed, saying that the ET had erred in proceeding with a hearing and making findings of fact adverse to a respondent where a claimant does not attend and is not available for cross examination.

The EAT dismissed the appeal. They considered rules 14 and 27 of the Employment Tribunal Rules of Procedure but came to the conclusion that the EJ was not bound to dismiss the claims. Rule 27(5) was wide enough to enable the tribunal to proceed with the hearing if that was the just course to take in order to dispose of the proceedings.

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Appeal No. UKEAT/0517/11/KN

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

At the Tribunal

On 12 June 2012

Judgment handed down on 19 October 2012

Before

HIS HONOUR JUDGE DAVID RICHARDSON

MR C EDWARDS

MRS M V McARTHUR FCIPD

MR DUFFY (APPELLANT)

MISS GEORGE (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR THOMAS GIBSON (of Counsel)
(Free Representation Unit)

For the Respondent
Written Submissions

UNFAIR DISMISSAL

A Tribunal does not necessarily err in law if it proceeds with a hearing and makes findings of fact adverse to a respondent where a claimant does not attend and is not available for cross examination. Rules 14 and 27 of the Employment Tribunal Rules of Procedure considered.

1. This is an appeal by Mr Duffy against a judgment of the Employment Tribunal sitting in Norwich (Employment Judge Postle presiding) dated 10 March 2011. By its judgment the Tribunal upheld, in two respects only, a claim of sexual harassment made against him by Miss George, a fellow employee.

1. For reasons which we will explain later in this judgment, we are not directly concerned in this appeal with the Tribunal's findings and reasoning. Mr Duffy's case, skilfully deployed on his behalf by Mr Tom Gibson, is that there was a procedural reason why the Tribunal was not entitled to make any findings against him – namely, that Miss George did not attend the hearing and was therefore not available for cross examination. This, he submits, was impermissible and unfair.

1. Mr Duffy and Miss George were fellow employees of Taylor Wimpey Homes ("TWH"). Miss George started to work for them on 5 March 2007 as a sales executive. Mr Duffy was already there; he was a project manager. In September 2008 he took over responsibility for a development known as "the Rise" in Norwich. She was transferred to work with him there.

1. Miss George's case was and is that from September 2008 onwards Mr Duffy sexually harassed her. It is not necessary to set out all the details of her case: they included allegations of words and conduct over several months which the Tribunal did not find proved in the absence of her attendance at the hearing.

1. There were, however, some words uttered by Mr Duffy which were readily capable of proof - because they were text messages. She quoted five such messages, sent over a period of 6 days between 17 February and 23 February 2009, in her claim form. Mr Duffy enquired whether she would allow him to "caress her lovely naked breasts" and asked "would you like me to make love to you?" There was also one incontrovertible fact. On 14 February Mr Duffy presented her with a vibrator.

1. Shortly after these events Miss George complained to TWH. Mr Duffy was dismissed. On 6 March 2009, having applied for a job elsewhere, Miss George tendered her resignation. She later sought to retract her resignation, but TWH held her to it; and she started work with a competitor in the field on 30 March.

1. Miss George presented her claim to the Tribunal against both TWH and Mr Duffy. Both put in responses denying the claim. Mr Duffy's response form did not deny the factual allegations made by Miss George. He said "yes, there was banter, but she gave as good as she got". He then set out a long list of questions which he believed that Miss George should be asked - questions which tended to suggest that she had engaged in words or conduct of a sexual nature herself.

1. The case was first listed for hearing in October 2010. On 14 October 2010 Miss George compromised her claim against TWH. The claim against Mr Duffy was not comprised; but the hearing was adjourned and re-listed for 23 February 2011.

1. In support of her case Miss George, who was represented by solicitors, had put in a witness statement. She confirmed the allegations which she made against Mr Duffy and set them out in some detail. She said that even after leaving the employment of TWH she had remained affected by Mr Duffy's behaviour, and that she was suffering from anxiety and depression.

1. Mr Duffy had not put in a witness statement as such; but the Tribunal directed that a letter which he had written, dated 12 March 2009, should stand as his witness statement. This letter did not answer the factual allegations made by Miss George; rather it said that she was "planning to bring him down", and suggested that there should be a meeting where "she and I can face each other".

1. Although Mr Duffy had not put in a witness statement, and although Miss George was represented by solicitors, he had communicated with her directly. He sent to her home address a letter containing a horoscope saying "you are right to suppose there is trouble in store", to which he added the words "how very appropriate".

1. On 17 February 2011 Miss George's solicitors wrote to the Tribunal. They referred to the anonymous letter which they said "served to intimidate, upset and frighten" Miss George. They said that his ongoing intimidating behaviour had left her scared of attending the hearing and being cross-examined by Mr Duffy in person. They referred to her continuing anxiety and depression. They asked for an order that she be not required to attend the hearing; that her statement be taken as read; and that she might provide an addendum statement.

1. On 18 February Mr Duffy wrote a letter saying that he required her to attend. Although he had written anonymously in October, he accepted he had sent that letter.

1. On 21 February an Employment Judge responded as follows. He said that the Claimant was under no obligation to attend and that her case could be considered upon the written evidence and documentation, although the degree of weight that could be attached to it would not be as great as if it had been the subject of cross examination. The orders asked for were not required.

1. At the hearing Miss George was not present or represented. The Tribunal evidently took Miss George's witness statement into account (and possibly also a short supplemental witness statement which her solicitors sent to the Tribunal). They heard evidence from Mr Duffy who set out his account. It is plain that he was allowed to give evidence in particular concerning the vibrator and the text messages; and that he said there was always banter on the site with her and the builders. The Tribunal recorded Mr Duffy's submission that he thought he had been set up.

1. The Tribunal, after taking time for consideration, gave judgment in the following terms:

"The unanimous judgment of the Tribunal is:-

1. The Claimant's claims of sexual harassment brought under the Sex Discrimination Act 1975 in relation to unsolicited text messages and the provision by the Respondent of a vibrator to the Claimant are well-founded.

2. In the absence of the Claimant attending to give oral evidence and to allow the Respondent to cross-examine the Claimant on the other serious allegations she makes, those claims are not well-founded.

3. Again in the absence of the Claimant and a medical report to assess the Claimant's injury to feelings, the Tribunal makes no award. The Claimant having in any event settled with the First Respondent, originally a party to these proceedings, namely Taylor Wimpey Homes"

1. We will now explain why we are not directly concerned in this appeal with the Tribunal's findings and reasoning.

1. The Tribunal gave reasons for its decision orally at the conclusion of the hearing. If an appellant, prior to lodging a Notice of Appeal, reads the documentation to which his attention is drawn by the Tribunal, he will know the importance of written reasons to an appeal: an appeal is only on a question of law, and it will seldom be possible to demonstrate an error of law on the Tribunal's behalf without having written reasons. Thus, if a party asks in time, a Tribunal is obliged to give written reasons: see rule 30 of the Employment Tribunal Rules of Procedure (Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004.

1. Mr Duffy did not apply for written reasons. He put in a Notice of Appeal relying on a dictionary definition of "harassment", saying that his conduct could not or did not amount to harassment. That Notice of Appeal was considered on paper by a Judge of this Appeal Tribunal and ruled to disclose no reasonable ground for appealing. Mr Duffy sought an oral hearing pursuant to rule 3(10), as he was entitled to do, and at that hearing he was represented pro bono by counsel under the ELAAS scheme.

1. On his behalf counsel took the only point which was sensibly open to be taken - a procedural point that the Tribunal was not entitled to find against Mr Duffy in any respect in the absence of her attendance to give oral evidence and be cross examined. The difficulty for His Honour Judge McMullen QC, dealing with the matter at that hearing, was that he had very limited information about what occurred in the run up to the Tribunal hearing and at the hearing. He allowed the appeal through on a limited ground, and directed enquiries to be made. The enquiries were made, and we have summarised the result of them already in this judgment.

1. The limited ground of appeal allowed through to this hearing is therefore:

"The ET erred in failing to dismiss the complaints of sexual harassment against the Appellant on the Respondent's failure to attend the hearing to give oral evidence as to the alleged unwanted conduct of a sexual nature that had the purpose or effect of violating her dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her."

1. On behalf of Mr Duffy Mr Gibson submits that the Tribunal was not entitled to make adverse findings against Mr Duffy in relation to the text messages or the gift of the vibrator without the attendance of Miss George for cross examination. The only permissible course, in the absence of Miss George, was to dismiss the complaint, which the Tribunal was entitled to do under rule 27(5) of the Employment Tribunal Rules of Procedure.

1. He relies upon McBride v British Railways Board and others [1972] ITR 84. In that case, which concerned entitlement to a redundancy payment, a material witness for the employer was in court and gave evidence, but the employee was not allowed to cross examine him. The appeal was allowed and the case remitted for a new hearing. He took us to Blackstone's Employment Law Practice **[2012 ed.] paras 9.121-124 where it is said that "excessive limitation of, or interference with, cross examination may amount to a denial of a fair trial, and render the Tribunal's decision liable to be set aside".

1. Mr Duffy was inclined to interrupt when Mr Gibson was making submissions on his behalf. He addressed us following Mr Gibson. His submissions to us gave us an insight into his character and views, but did not assist us on any question of law. He accepted that even though he was being accused of harassment and even though she was represented by solicitors he had written the "trouble in store" letter directly to Miss George: he said that although the communication was anonymous she would have realised that he was the person who sent it.

1. Miss George did not attend the appeal and was not represented. She put in an Answer saying that she opposed the appeal but could not afford representation and continued to suffer in health.

1. In this case the Tribunal decided to proceed with the case in the absence of the Claimant and her representatives, relying at least in part on statements which she had provided. The question is whether the Tribunal was entitled in principle to do so.

1. We emphasise that this is the only question before us; since the Tribunal was not asked for its written reasons we are not in a position to examine the grounds for the exercise of its discretion, if it had a discretion; nor are we in a position to assess the basis upon which it reached its conclusions, except to the limited extent that these are apparent from the judgment.

1. Two rules within the Employment Tribunal Rules of Procedure are of particular relevance. Rule 27 is concerned with what happens at a hearing. It provides as follows:

"(2) Subject to rule 14(3), at the Hearing a party shall be entitled to give evidence, to call witnesses, to question witnesses and to address the tribunal.

(3) The tribunal shall require parties and witnesses who attend the Hearing to give their evidence on oath or affirmation.

(4) The tribunal may exclude from the Hearing any person who is to appear as a witness in the proceedings until such time as they give evidence if it considers it in the interests of justice to do so.

(5) If a party fails to attend or to be represented (for the purpose of conducting the party's case at the Hearing) at the time and place fixed for the Hearing, the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the Hearing to a later date.

(6) If the tribunal wishes to dismiss or dispose of proceedings in the circumstances described in paragraph (5), it shall first consider any information in its possession which has been made available to it by the parties.

(7) At a Hearing a tribunal may exercise any powers which may be exercised by [an Employment Judge] under these rules."

1. It will be noted that rule 27(2) is expressly made subject to rule 14(3). Rule 14 contains further general provisions concerning hearings. Rule 14(2) and (3) provide as follows:

"(2) So far as it appears appropriate to do so, the [Employment Judge] or tribunal shall seek to avoid formality in his or its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts.

(3) The [Employment Judge] or tribunal (as the case may be) shall make such enquiries of persons appearing before him or it and of witnesses as he or it considers appropriate and shall otherwise conduct the hearing in such manner as he or it considers most appropriate for the clarification of the issues and generally for the just handling of the proceedings."

1. When exercising powers under these Rules the Tribunal must seek to give effect to the overriding objective: see reg 3(3) of the 2004 Regulations. The overriding objective is to deal with cases justly: see reg 3(1) and (2).

1. In our judgment the Tribunal was not bound to dismiss the case because Miss George did not attend the hearing and was not available for cross examination. It is plain that rule 14(2) and (3) are sufficiently wide to permit the tribunal to take in evidence, such as second-hand or hearsay evidence whether in witness statement form or other form, even though the maker is not available for cross examination. Tribunals indeed often receive such evidence.

1. Rules as to the admissibility of evidence before the courts are not applicable: see rule 14(2). We would, however, observe that there are provisions in civil and criminal courts for receiving evidence where a witness does not attend: see, for example, in England and Wales, the Criminal Justice Act 2003 (for criminal courts) and the Civil Procedure Rules (for civil courts). Such powers are used in the case of witnesses who are frightened and distressed, especially if the opposite party has behaved in such a way as to contribute to the fear and distress. If such evidence is admitted a court or tribunal must always bear in mind that the maker has not given evidence on oath or been cross examined; but that is a matter which goes to the weight of the evidence. There is no such detailed code for tribunals: the touchstone is always what is fair.

1. The case of McBride v British Railways Board and others is an example of fairness in operation. In that case the employer's witness was called; the employee was not allowed to ask questions on a material issue. That was plainly outside the parameters of fairness. And it is no doubt also true that curtailment of cross examination can result in unfairness - although the Tribunal is charged with pursuing the overriding objective, and this will require it to ensure that hearings are completed in a sensible time frame in a way which is fair to both parties; and the days when any party could expect unlimited time for cross examination, if they ever existed, are now long over.

1. In this case the Tribunal was faced with a quite different problem - whether and to what extent it should rely on evidence where the maker of the statement said that she was not prepared to attend the hearing by reason of her anxiety and fear. It chose to rely on the evidence only where there were significant admissions by the opposite party. It heard the evidence and submissions of Mr Duffy. The course it took was not obviously unfair. Mr Gibson says the admissions were not complete: in particular, there was no admission by Mr Duffy that his conduct was unwanted by Miss George. But there was ample material on which the Tribunal could reach the conclusion that his conduct was unwanted.

1. Where, as here, Miss Duffy did not attend and was not represented, the Tribunal was required, by rule 27(6), to consider the information put before it by the parties - which included, in this case, the reasons given by Miss George's solicitors for her non-attendance and the detailed witness statement she had given. It was entitled also to bear in mind the apparent existence of significant admissions by Mr Duffy, as to the texts, the gift of a vibrator and the inappropriate message warning her of "trouble ahead". Having done so, it was entitled to proceed with hearing in order to dispose of the proceedings. It was not bound to dismiss the proceedings. There will be a wide variety of circumstances in which parties do not attend a hearing. Rule 27(5) is wide enough to enable the tribunal to proceed with the hearing if that is the just course to take in order to dispose of the proceedings.

1. For the reasons we have already explained, we are not concerned with the Tribunal's findings and reasoning for its substantive conclusion or with its reasoning for deciding to dispose of the claim rather than dismissing it in its entirety. We are only concerned with the question whether, in the circumstances of this case, it was necessarily an error of law for the Tribunal to dispose of the case in the way that it did. In our judgment it was not; and the appeal is therefore dismissed.