Wade v Payne [1996] UKEAT 1159_95_2802 (28 February 1996)

JUDGMENT PRELIMINARY HEARING Revised APPEARANCES For the Appellant MR T PULLEN (of Counsel) Bailey Gibson & Co Solicitors 4 Easton Street High Wycombe Buckinghamshire HP11 1NJ MR JUSTICE MORISON : By a unanimous decision entered the Register on 5th September 1995, an Industrial Tribunal held at Reading upheld Mrs Payne's complaints. She had three complaints. First, that she had been unfairly constructively dismissed. Secondly, that she had been discriminated against on the grounds of her gender, and thirdly, that she had not been provided with proper particulars of her terms and conditions of employment. The underlying facts as found by the Industrial Tribunal may be shortly stated. They concluded that the employer in this case was Mr Wade who was the first named respondent, an undischarged bankrupt, as opposed to a company which had been paying her wages throughout her employment or the latter part of it, Discount Fitted Kitchens Ltd. Although the Notice of Appeal and skeleton argument challenged the conclusion of the Industrial Tribunal on that issue, Mr Pullen on behalf of the prospective appellant, very sensibly abandoned that part of his appeal. Paragraphs 7 to 10 are the reasons why the tribunal arrived at its decision on that issue and do not need to be referred to further. The purpose of this application is to decide on an ex parte basis whether the Notice of Appeal in its modified form shows any genuinely arguable point of law fit to go for a full hearing before the Employment Appeal Tribunal. The two matters about which complaint is still made on behalf of the prospective appellant are firstly, the finding of constructive dismissal and secondly, the finding of sex discrimination. In relation to the first, the facts are set out between paragraphs 12 and 17 of the tribunal's decision. It is apparent that at the outset the Industrial Tribunal rejected part of what Mrs Payne had complained, on the basis that she had not mentioned those matters in her originating application and as the tribunal fairly and properly indicate, they did not attach any great weight to what she had said on those points. They then recite what they say are the relevant parts of the story, and effectively give an account of two specific incidents. The first relates to an incident in which the applicant complained that a sandwich which had been prepared for her by her employer had been doctored; she said that she had noticed a white powder on the tuna filling inside the sandwich and she told the tribunal that subsequently that white powder had been analysed by some chemist and discovered to be an emetic. The second incident on which she relied in support of her claim for constructive dismissal, related to an occasion three days later when she went to the downstairs lavatory which the tribunal found as a fact was only used by her and Mrs Erroc, who was a cleaning person employed by the employer. She said that in the cloakroom she saw a boy's blue swimming bag hanging on a peg with the coats. To right of the bag was a rip in the corner from which the lens of a camera projected. She called Mrs Erroc who removed from the bag what turned out to be a camcorder. Mrs Erroc has one, and she said she would operate it and play it back. Then, an important finding, Mrs Payne's immediate conclusion was that the camcorder was there to film her in the lavatory. The tribunal go on to say: "Mrs Erroc duly played back the contents of the camcorder. The film showed Mr Wade in the lavatory setting up the camera followed by views of the toilet." The tribunal made the following findings, and I now quote paragraph 16 and 17 of their decision: "16 The Tribunal accepts the evidence of Mrs Payne and Mrs Erroc. We accept that they formed the conclusion that the apparatus had been set up with a view to filming users of the lavatory although it had not in fact been operated for that purpose and that the contents of the video (which was played to the Tribunal at the Hearing) tended to support that conclusion. 17 There is in every Contract of Employment and implied term of trust and confidence which should exist between an employer and employee, the one for the other. The Tribunal concludes that Mr Wade was in breach of that implied term by reason of the "sandwich" incident on 3rd of January and the manner in which he set up the camcorder on the 6th of January. Mrs Payne was entitled to accept the breach and claim that she had been constructively dismissed. She did not return to work for Mr Wade again." What is the complaint that is made in the Notice of Appeal and advanced in argument before us? The first complaint is that in relation to the sandwich incident, when objection had been taken to heresay evidence, that is evidence given by Mrs Payne as to the result of the analysis, the Chairman indicated that they would not pay further attention to that evidence. It is said that they have broken their implied promise to the parties and thus have been guilty of a breach of natural justice. It is said in relation to the evidence as to the camcorder; first that Mrs Erroc had accepted that the lavatory had been used by the boys. We place no reliance on this point, we think that it had no merit, because it is apparent that Mrs Payne was quite unaware that the camcorder was there for the purpose which Mr Wade alleged at the Industrial Tribunal, namely to film the two boys of whom she was the nanny. She immediately concluded, having discovered the camcorder, that it was there to film her. If the employer had told her that he was putting a camera in with a view to filming the lavatory habits of one of his children, then that evidence of hers could not have been correct, yet the tribunal accepted her as a truthful witness. That we think is significant. It is further said that in paragraph 16 of the decision, the tribunal had not found as a fact that the reason why the camcorder had been placed in the lavatory was to photograph her and/or Mrs Erroc; whereas they ought to have done so. In our judgment there is no merit in that point either. But since there is an allegation made that the tribunal Chairman had indicated that no reliance would be placed on part, at any rate, of the evidence in relation to the sandwich incident, we are content to deal with this matter on the basis of the second incident alone. It seems to us perfectly clear that the tribunal were aware of the legal test which must be fulfilled before a finding of constructive dismissal can be made. We deduce that not only from paragraph 17 of the decision itself, but also because we note that both parties at the hearing had been represented by Counsel, although Mr Wade had not been represented by Mr Pullen, who has appeared before us and given us assistance this afternoon. It seems to us, if they were aware (as they plainly were) of the correct test, then paragraph 16 can be read and understood in the only way that it must have been intended to have been understood, namely that both Mrs Payne and Mrs Erroc were reasonable in their view on an objective basis, that the apparatus had been set up with a view to filming them as they were the only users of the lavatory, although the camera had not been operated for that purpose. If that was a finding of fact which they were entitled to arrive at, it seems to us beyond argument that in those circumstances every tribunal would have been entitled to have concluded that that incident was a plain breach of the implied duty of trust and confidence to which the tribunal properly drew attention in paragraph 17. I turn therefore to the complaint in relation to sex discrimination. It seems to us that there is no merit whatever in this point either. The crucial findings of the tribunal are firstly, that this was a lavatory which was used only by the two women concerned. Secondly, that she had been subjected to the possibility that she might be filmed in the lavatory in an embarrassing way, and in those circumstances, it was plainly a matter which they were entitled to say amounted to conduct at an establishment in Great Britain during the course of her employment which discriminated against her in the sense of subjecting her to the embarrassment or in the words of the statute "any other detriment". It seems to us that in those circumstances, the tribunal were entitled to conclude that that conduct was a breach of Section 1(1)(a) of the Act, that is, that it was an act of direct discrimination against her by reason of her gender. Indeed, it seems to us beyond argument that if those were the facts that would be a proper conclusion for the tribunal to draw. Accordingly, as it seems to us, there is nothing shown in the Notice of Appeal as amplified by Mr Pullen in his arguments which would justify this tribunal in considering the appeal further. We do not consider that this is a case fit for a full hearing, and accordingly, we dismiss this appeal. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII