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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Prospect Care Services Ltd & Anor v. Curtis [2001] UKEAT 1248_99_0611 (6 November 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1248_99_0611.html Cite as: [2001] UKEAT 1248_99_0611, [2001] UKEAT 1248_99_611

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APPEARANCES

 

For the Appellant	MR ADRIAN LYNCH (One of Her Majesty's Counsel) Instructed By: Messrs Burroughs Day Solicitors 14-16 Charlotte Street Bristol BS1 5PT
For the Respondent	MISS JENNIFER EADY (of Counsel) Instructed By: Messrs Battens Solicitors 17 Market Street Crewkerne Somerset TA18 7JU


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us the Full Hearing of the appeal of Prospect Care Services Ltd. and Mr Stephen Hyland in the matter of Mrs L.R. Curtis against Prospect Care Services Ltd and Mr Hyland. The case, an appeal from the Employment Tribunal at Exeter, concerns unfair dismissal and sex discrimination in the context of a managing director having shown, it was alleged, a very offensive and unwelcome interest in a female employee. Neither of the Counsel before us was before the Employment Tribunal below. Now Mr Lynch Q.C. appears for the Appellants and Miss Eady for Mrs Curtis. We have been told that the Company has, since the Employment Tribunal hearing, gone into liquidation.
2. Mr Hyland was managing director of the Appellant Company. Mrs Curtis was its employee. The business of the Company consisted of or included the conduct of a Care Home for children with emotional and behavioural difficulties. In September 1998 one of the children in the Company's care, one suffering from anorexia nervosa, was in so poor a state that it was decided that she would have to be taken immediately to Jersey for hospitalisation. She would need to be accompanied to Jersey. It was arranged that she should be accompanied by Mr Hyland and Mrs Curtis. All three left for Jersey by air on the last outward bound flight from Exeter Airport on Saturday the 12th September 1998. After the flight landed in Jersey the sick child was put into proper hands. Mr Hyland and Mrs Curtis could not return by air that night from Jersey. The Tribunal held:-

"It has been implied on behalf of the Applicant [Mrs Curtis] that there was no need for the Second Respondent [Mr Hyland] to undertake this trip and he engineered the timing of the trip and/or Applicant's overtime rota so that she would be available to accompany him; it is also suggested that he deliberately booked that last flight out on Saturday the 12th September so that there would be no flight back that evening and an overnight stop would be essential. Although these suggestions remain possibilities we cannot find them as proven facts on the evidence. We find it was entirely appropriate for Mr Hyland to have made the trip and entirely appropriate that the Applicant should have accompanied him."

3. Mr Hyland and Mrs Curtis stayed, as had been arranged, in separate rooms in the Merton Hotel. There is no finding as to who had arranged the booking of rooms at the hotel, nor who had arranged, if anyone had, that, as it transpired, the two rooms were opposite each other. There is certainly no finding that Mrs Curtis had any hand in that, nor that Mr Hyland had. The Tribunal held:-

"They stayed in the Merton Hotel, a large hotel with excellent facilities and stayed in separate rooms. They had a drink on arrival at the hotel before getting ready for dinner, and then dined together in a restaurant in the hotel. They then visited the hotel's games arcade on the way to seeing the in-house cabaret show. This finished at approximately 11.30 p.m. and they went together to the disco bar. They had both had alcoholic drinks but also a coffee and soft drinks, and neither was drunk."

The Tribunal says:-

"The Applicant alleges that there was a consistent course of unwelcomed sexual harassment from the Second Respondent during this visit."

That is not so, if it is meant thereby to suggest that the unwelcome conduct began any earlier than 11.30 p.m. on that Saturday evening. But from 11.30 p.m. onwards that evening the two versions of events, that of Mr Hyland and that of Mrs Curtis, till then largely similar, begin to diverge.

4. It looks as if there had been no pressure upon Mrs Curtis for her to remain in Mr Hyland's company. Her own evidence included his having said, at about 10 p.m., that she could go off to bed if she wanted to.
5. Up until about 11.30 p.m. when the hotel's cabaret was over and the two moved to the disco bar Mrs Curtis was, it seems, enjoying herself. After 11.30 the events, as Mrs Curtis alleged them to be, were summarised by the Employment Tribunal as follows:-

"15. ....... She says that despite her protestations he continually asked her questions about her marriage and that notwithstanding his efforts to make her relaxed she felt awkward in his company. The Applicant says that the Second Respondent kept telling her how beautiful she was and made a series of very offensive sexual remarks. He suggested that he wanted to play with her for hours; he repeatedly asked what made her come and what noise she made when she did so; he stroked the Applicant's hair persistently and failed to change the subject when asked. It is alleged he said again "Go on, tell me what makes you come? What noises do you make? Are you a squeaker or a gasper?" and demonstrated the noises. The Applicant alleges that the Second Respondent continued by telling her that he wanted to bring her to the brink of coming and then stop and do it time and again until she would be begging him to fuck her. The Applicant alleges further comments of a similar nature and also personal questions about the state of her marriage and whether she had been unfaithful.

16. The Applicant alleges that she was intimidated by her boss, and sickened and humiliated by the comments. On going to bed at 1.30 a.m. she admits to giving him "A peck on the cheek", she says in the hope that that would have indicated that it was a good night gesture and the further advances would be just as unwelcome. She says that he then telephoned her room, and she says that she put her chair against her bedroom door for fear of what the Second Respondent might do. The Applicant admits that she did not make any complaint to the hotel management, to her husband by telephone, or to the Police, throughout this process. She says however that she felt overpowered, intimidated, helpless and trapped on the island.

17. The Applicant alleges that in the morning in the hotel and over breakfast similar comments occurred and this continued even on the plane home. She alleges that the Second Respondent also blew on her neck on the way home."

6. Mr Hyland vigorously denied the allegations. The Tribunal said:-

"18. The Second Respondent flatly denies these allegations. He admits that that they had a number of conversations during the evening and the following morning, and suggests that the Applicant herself raised the matter of the unsatisfactory state of her own marriage and wished to discuss this with him. He alleges that she made it clear that she wished to get out of her marriage in the near future. He also alleges that the Applicant volunteered information as to her previous poor state of health, in particular on lumps which had been removed from her breasts, and a gynaecological problem. The Second Respondent alleges that she mentioned that it was a treat for her to have a meal out in a good hotel. The Second Respondent admits that there were personal and intimate discussions concerning the Applicant's private life and her marriage, but that these were consensual and volunteered by the Applicant. The Second Respondent alleges that the Applicant admitted her own husband teased her about the effects of growing old, and that she had always found the Second Respondent attractive. She repeated that she was bored with her sex life and wished to have a relationship which was more fulfilling before it was too late. These discussions continued the following morning over breakfast and the Second Respondent gave advice to the Applicant as to how to deal with her marital problems. They joked together in a taxi to the airport and continued home. The Second Respondent strongly denied that there were any comment of an improper or unwanted nature."

7. A difficult task presented itself to the Employment Tribunal. The sort of allegations which were before the Tribunal are of a kind commonly neither supported nor rebutted by independent or any third party evidence. The Tribunal said:-

"Both the Applicant and the Second Respondent were consistent witnesses with regard to these aspects of their evidence and we are faced with having to make findings of fact on the balance of probabilities where there is a stark conflict in this area. We are assisted by other matters for which see further below."

8. They then referred to Mrs Curtis's behaviour on returning to work on Monday the 14th September. On the 15th September she raised a formal complaint with the employer, Prospect Care. Prospect Care conducted an investigation which was, in a number of respects, inadequate. In the course of that investigation Mrs Curtis's body-language was indicative of her being very upset. Of the events of these days the Employment Tribunal said:-

"We find .... the Applicant was upset at work. She confided with work colleagues Nicholas Howarth and Emma Lewes that she had been the victim of the Second Respondent's advances, and they say that she was visibly distressed, tearful and shaken. She repeated these allegations later that evening over the telephone to Tracey Searle. The Applicant was not sure how she intended to deal with the matter, but raised a formal complaint the following afternoon (Tuesday 15th September 1998) and the procedure which followed is explained further below. The Applicant subsequently consulted her G.P. and was referred to a counsellor Mrs Caroline Orchard who gave evidence. The Applicant attended Mrs Orchard on four occasions. She is not a qualified psychiatrist, but we found that the Applicant presented to Mrs Orchard as ashamed, cowed, shocked, vulnerable, panicky, frightened and tearful. We find that these symptoms are consistent with having been the victim of the sexual harassment which she alleges."

Mr Biggs, the senior manager for care at Prospect Care, was the person who largely undertook the investigation. The Tribunal found:-

"Mr Biggs admits that the Applicant presented as very upset, and cried and curled in a ball on the chair."

That was on Wednesday the 16th September.

9. Mrs Curtis resigned from the Company on the 30th September 1998. The Tribunal went at length into an examination of the Company's disciplinary procedures in the case and then returned to the chief issue, sexual harassment. The Tribunal said:-

"34. We now return to the disputed events of Jersey, and we have to decide whether we prefer the evidence of the Applicant or the Second Respondent. After detailed consideration of the evidence given by them both, their bearing and demeanour, the remaining evidence and supporting documents, and the submissions made on their behalf, we unanimously prefer the evidence of the Applicant. We find on balance her version to be more credible, and more consistent with the remaining findings of fact, in particular with regard to her reaction to the events in Jersey, and the Respondents' failings in the investigative process.

We therefore find on the balance of probabilities that the Applicant was the victim of the sexual harassment which she alleges, as set out in paragraphs 15-17."

10. The Tribunal held Mrs Curtis's resignation to have been a constructive dismissal, a justified reaction, they held, to a breach of the implied duty of trust and confidence on the part of the Company. As for Mrs Curtis's behaviour at and after her return to work on the 14th September they said:-

"37.3 The Applicant who had hitherto been confident and composed in the face of stress was markedly different on her return to work, being tearful, shaken and distressed and

37.4 The Applicant mentioned the possibility of a formal complaint and her objections to the Second Respondent's actions to colleagues immediately upon her return to work and

37.5 The Applicant then pursued a formal complaint against her boss and

37.6 The Applicant had to attend Counselling sessions and presented as ashamed, cowed, shocked, vulnerable, panicky, frightened and tearful, all consistent with her allegations of sexual harassment and

37.7 The First and Second Respondents failed to ensure a fair and objective investigation into those complaints

38. We have already found the Applicant's version to have been proven on the balance of probabilities. Even without such a finding we would draw an inference from these primary facts that the sexual harassment as alleged did indeed occur."

11. It is unclear whether there was evidence that Mrs Curtis had to attend counselling sessions, as opposed to choosing to do so, and the fact that she raised complaints hardly goes to prove they are well-founded. But on those conclusions Mrs Curtis's claim for unfair dismissal succeeded; she was awarded £810. As for sexual discrimination against Mr Hyland, the Tribunal held:-

"We are unanimous in finding that the Second Respondent committed sexual harassment against the Applicant, and that this amounts to unlawful sex discrimination under the Sex Discrimination Act 1975. The Applicant therefore succeeds in her claim for sex discrimination against the Second Respondent."

12. As for the sex discrimination claim against the Company, they held that Mrs Curtis had suffered the sex discrimination in the course of her employment and that the Company was therefore vicariously liable for Mr Hyland's activity. Mrs Curtis was awarded £1,618 for the direct financial consequences of the sex discrimination and £5,000 for injury to feelings. Interest was awarded. In all the award in her favour was £7,019 for sex discrimination inclusive of interest. The decision was sent to the parties on the 29th July 1999. At a later hearing the Employment Tribunal awarded costs against the Company. There is no appeal before us as to that. On the 9th September 1999 a Notice of Appeal was received at the EAT from both the employer and Mr Hyland. Mr Lynch's skeleton argument on behalf of both Appellants can be divided into two broad headings, namely:

(1) Criticism of the Employment Tribunal's procedure as being unfair to the Appellants in relation to the time allowed for, and scope of, questioning. We will call that "the procedural heading";

(2) Criticism of the quality of the Employment Tribunal's decision in relation to the paucity of primary facts found and the omission of findings on what are said to be highly material matters. We will call this "the substantive heading".

13. Looking first at the procedural heading, Mr Lynch's criticism is that there was an absence of any appropriate cross-examination of Mr Hyland by Mrs Curtis's representative or questioning of him by the Tribunal on crucial matters in dispute. This, urges Mr Lynch, is a breach of the obligation to apply a fair procedure which was made all the more serious given the fact that the Chairman at the Employment Tribunal took the witness statements "as read" and adopted, says Mr Lynch, a very restricted approach to allowing any supplementary questions to be put in chief. There was, argues Mr Lynch, a truncated and unsatisfactory procedure adopted by the Employment Tribunal. He says Mr Hyland was not allowed to read his witness statement, that Mr Hyland's advocate was subject to severe restrictions in regard to asking supplementary questions in chief and that Mr Hyland was not asked about matters quite central to his case, either in cross-examination or from the Employment Tribunal itself. He was denied, urges Mr Lynch, a fair and proper opportunity to convince the Tribunal of his credibility on central issues as to what had happened in Jersey because he was denied the opportunity to give live evidence on those issues.
14. However, both sides had prepared very extensive witness statements; Mrs Curtis's dated the 24th June, Mr Hyland's the 25th June. They were exchanged on or about the 28th June. On 30th June Mr Hyland's solicitors saw for the first time the contemporary note made by the counsellor, Mrs Orchard. On the 7th July Mr Hyland added a supplemental witness statement on the subject of those notes. The hearing had been fixed for the whole week, Monday the 5th July to Friday the 9th July. On the 5th July the Tribunal refused an application made on behalf of Mr Hyland for a Restricted Reporting Order. That refusal occasioned an immediate appeal to the Employment Appeal Tribunal. No evidence was heard at the Employment Tribunal on the 5th July. On Tuesday the 6th July no evidence was heard; the Employment Tribunal read the witness statements in the case. The parties themselves were engaged instead in the appeal to the Employment Appeal Tribunal, which was successful.

On Wednesday the 7th July, for the first time, the Employment Tribunal turned to the reception of evidence. Mrs Curtis's side went first. The Employment Tribunal was due to hear 17 witnesses. Only 3 of the 5 original days were by then still available. One can understand the need for due expedition. On Thursday the 8th July Mrs Curtis's side finished. She had been extensively cross-examined. Mr Hyland's witness statement and supplemental witness statements were then taken as read. So, earlier, had been Mrs Curtis's. That is a common and entirely acceptable Employment Tribunal procedure and both sides were thus treated the same. Both sides were represented by solicitors. Mr Jones, the solicitor representing both Prospect Care and Mr Hyland, began an oral further examination in chief of Mr Hyland. It was plainly part of his task to complete Mr Hyland's evidence in chief on any points that had by then emerged or had begun to emerge but which had not been covered in his two witness statements. The Chairman says that that oral further evidence in chief began at 2.05 p.m. on Thursday the 8th July. The Chairman writes:-

"It is true that I restricted Mr Jones's questioning to a degree. Pages 63-68 of my Notes refer. Mr Hyland was sworn and confirmed his statement and supplemental statement. Mr Jones then started to ask supplemental questions which were reciting matters already written down in the witness statement. My Note on page 64 reads:-

"I argue with Mr Jones. I do not want you going over the statement paragraph by paragraph or we will never finish. You can ask new matters, but do not repeat what's in the statement."

I therefore deny that Mr Jones was not allowed to ask supplemental questions. Indeed my Note consists of 6 pages of such questions, taken from 2.05 p.m. to 2.55 p.m. on Thursday the 8th July 1999."

15. In the face of that remark "You can ask new matters" it is difficult to fault the Chairman. Mr Jones had been free to question Mr Hyland on whatever had not been covered previously in his witness statements. 50 minutes would surely have sufficed to get from Mr Hyland his evidence on points not previously covered. No complaint, it seems, was made at the time that Mr Hyland's evidence in chief had been unfairly curtailed. Then from 2.55 p.m. on the Thursday (we are not told to what time the Tribunal sat) and then on the Friday to 11.0 a.m. (and Tribunals usually sit at 10.0 a.m.) Mr Hyland was cross-examined. Mrs Curtis's solicitor did not go through with Mr Hyland all of Mrs Curtis's detailed allegations, putting each component to Mr Hyland. But he did in a very general way contest the veracity of Mr Hyland's version of events. He described it as a "cock and bull" story, not surprisingly meeting a denial of that from Mr Hyland.

If, at the end of that oral cross-examination, Mr Jones for Mr Hyland had felt that there were components of Mrs Curtis's case which had not been adequately put to Mr Hyland and that Mr Hyland's case suffered thereby, he could have re-examined and have shown, had that met with any resistance, why re-examination was necessary. Indeed, Miss Eady says that there was some re-examination. There was, so far as can be seen, no protest from Mr Hyland's side that as Mrs Curtis's solicitor had not put parts of her case to Mr Hyland that he, Mr Hyland's representative, would therefore have to do so. The combination of, firstly, the Chairman not stopping genuinely new material by way of oral further evidence in chief from Mr Hyland, secondly, the opportunity, which we have no reason to believe was denied, for re-examination at the end of Mr Hyland's cross-examination and, thirdly, Mr Hyland's cross-examination itself, albeit that it was of a rather general nature, combine, in our view, to deny the allegation that the procedure was unfair or that Mr Hyland was shut out from giving material "live" oral evidence. He may not have given "live" oral evidence on a number of points but that is not to say that he was shut out from doing so. The degree to which a Tribunal considers it necessary expressly to have each issue put to opponents and, should some issue not be put, for the Tribunal itself to intervene with its own questions, is very much a matter left to the discretion of the Tribunal at the time - see Employment Tribunal Rule 9 (1), now Rule 11 (1). Miss Eady invites us to note that Mr Lynch failed to identify a single topic on which Mr Hyland had been unable to comment in his evidence. We see no error of law under this procedural heading.

16. Turning to the substantive heading, Mr Lynch has reminded us of familiar principles and passages in the well-known cases of Chapman -v- Simon [1994] IRLR 124 at 128, Alexander Machinery Ltd -v- Crabtree [1974] ICR 120 at 122 and 129, Levy -v- Marrable [1984] ICR 580 at 587, Meek -v- City of Birmingham [1987] IRLR 250 and the important recent cases of Anya -v- University of Oxford [2001] IRLR 377 C.A. and Wheeler and Anor -v- Durham County Council, as yet unreported but heard by the Court of Appeal on the 23rd May 2001.
17. It is plainly the case that there was evidence as to the events of the Saturday and Sunday in Jersey consistent with and capable of supporting a finding that there had been sexual harassment of Mrs Curtis by Mr Hyland. Mrs Curtis gave evidence of that. She was described by the Tribunal as a consistent witness. Mrs Orchard thought that Mrs Curtis had "presented" as ashamed, cowed, shocked, vulnerable, panicky, frightened and tearful. She had been visibly distressed, tearful and shaken in the office. She was upset at work. In the course of the disciplinary investigation she was very upset and cowed and curled up in a ball on her chair. It was for the Employment Tribunal to judge whether such "body language" was simulated or not. They unanimously preferred her version of events. They expressly said that they relied on the demeanour of both of Mrs Curtis and Mr Hyland, although, as both were held to be consistent witnesses, demeanour was, it would seem, not decisive. This is not, therefore, a case where there was no evidence at all available to support a Tribunal's conclusion. But is it always enough to avoid error of law to say that the Tribunal came to a conclusion which was supported by some evidence which it chose to accept? As to that we need to look at Anya supra in some detail.
18. Doctor Anya, a black Nigerian, was interviewed for a scientific University post by a panel of three men, one of whom, Doctor Roberts, had already formed the view that he was not suitable for it, a view which he had communicated to another of the three interviewers. Doctor Anya did not get the job, which went to a white. Doctor Anya claimed he had been discriminated against upon racial grounds. Had Doctor Anya's race played any significant rôle in the choice? The Employment Tribunal accepted Doctor Roberts's evidence that his reasons for not choosing Doctor Anya had to do entirely with a genuine assessment of Doctor Anya's scientific strengths and weaknesses. The Employment Tribunal accordingly dismissed Doctor Anya's claim and the Employment Appeal Tribunal dismissed Doctor Anya's appeal.
19. Doctor Anya appealed to the Court of Appeal. In the judgment of the Court of Appeal delivered by Sedley L.J., he, speaking of the Employment Tribunal's decision, said, at paragraph 14:-

"Such a conclusion was without doubt open to them, but only provided that it was arrived at after proper consideration of the indicators which Doctor Anya relied on as pointing to an opposite conclusion."

The Employment Tribunal had there had regard to a number of factors relied upon by Doctor Anya as supporting his case but the Court of Appeal noted:-

"On none of these issues, from first to last, did the Industrial Tribunal record any conclusion as to where the truth lay and what, if anything, it indicated in terms of racial bias."

The Employment Tribunal, as the Court of Appeal noted, had found a number of inconsistencies in the University's approach but had concluded that the evidence was not sufficient to justify an inference of racial discrimination. The Court of Appeal however continued at paragraph 19:-

"The Industrial Tribunal, with all respect to them, have started at the far end of the process of reasoning and have never returned to base. Having concluded that Doctor Roberts was essentially truthful (we do not know whether or not they found the same of Doctor Anya), they have abandoned the remainder of the inquiry. They make no findings about the substance, much less the significance, of the inconsistencies which they have noted in his and Professor Cantor's evidence; no evaluation of the further inconsistencies which they have found between the University's documents and its evidence; no findings as to whether the Appellant had, as he contended, been repeatedly sidelined by Doctor Roberts in the course of his research work; no finding about the significance of the differences in the way he and Doctor Lawrence were treated; and no indication of the significance, if any, of the interview panel's departures from University policy or good practice. Nor, therefore, have they been in the position to decide whether any hostility they might have found was in any significant degree racially motivated."

It was argued in the Court of Appeal that as long as the Industrial Tribunal had borne everything in mind and had found Doctor Roberts, as they did, to be a honest witness in his repudiation of any racial bias, they had no obligation to make any further findings. However, the Court of Appeal emphasised the need, in the Anya case, for the totality of the evidence to be considered which, on the facts of that case, required it to be examined through its various parts - see paragraph 23. In paragraph 25 the Court of Appeal adds:-

".... It is the job of the Tribunal of first instance not simply to set out the relevant evidential issues, as this Industrial Tribunal conscientiously and lucidly did, but to follow them through to a reasoned conclusion except to the extent that they become otiose; and if they do become otiose, the Tribunal needs to say why. But the single finding of the Industrial Tribunal in this case on Doctor Roberts's honesty as a witness, while important, does not make the other issues otiose; on the contrary, it begs all the questions they pose. [Counsel for the Respondent's] reliance on it as effectively dispositive overlooks what Lord Goff said in The Ocean Frost [1985] 1 Ll. L.R. 157

"It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence .... reference to the objective facts and documents, to the witnesses's motives and to the overall probabilities can be a very great assistance to a Judge in ascertaining of truth".

The Industrial Tribunal was not given any ground, and none is evident, for departing from this classic mode of reasoning in a case where every one of the ingredients mentioned by Lord Goff was present."

Continuing, the Court of Appeal in their paragraph 26 add:-

"The Courts have repeatedly told Appellants that it is not acceptable to comb through a set of reasons for hints of error and fragments of mistake, and to try to assemble these into a case for oversetting the decision. No more is it acceptable to comb through a patently deficient decision for signs of the missing elements, and to try and amplify these by argument into an adequate set of reasons. Just as the Courts will not interfere with a decision, whatever its incidental flaws, which has covered the correct ground and answered the right questions, so they should not uphold a decision which has failed in this basic task, whatever its other virtues."

20. The Employment Appeal Tribunal in the Anya case, in the course of its dismissing the appeal from the Employment Tribunal, had taken the view that the Employment Tribunal had not specifically dealt with and found allegations to exist or not that might have supported Doctor Anya's case because it had been obvious that none of those facts, even if found in his favour, were going to assist him. The Employment Appeal Tribunal had said:-

"We think further that any overview must consciously or unconsciously have affected the Tribunal's fact-finding initiative; why find the specific facts that are sought when it is obvious that none such are going to provide those compelling grounds which will turn that which we have identified as possible into that which has been proved as probable?"

The Court of Appeal rejected that reasoning as unacceptable. Accordingly the Court of Appeal allowed Doctor Anya's appeal and remitted the matter for rehearing by a fresh Employment Tribunal.

21. There are, of course, very material differences between the sort of case that the Court of Appeal was dealing with in Anya and the case before us.
22. Anya was dealing with the propriety or not of a particular inference in relation to a discrimination of a kind that consisted of a state of mind and of action that might be consciously or unconsciously motivated. Credibility, for the reasons given by the Court of Appeal, was far from being the only or a decisive issue. By contrast, in the case before us motivation did not need to be examined and what were in issue were the physical facts, chiefly in respect of the short time both parties spent in Jersey. Unlike the position in Anya, credibility was crucial and likely to be determinative. Whilst inference as to motive in cases of racial discrimination is a subject of especial sensitivity, the Court of Appeal's guidance in Anya is not couched in restrictive terms and the need, which Anya emphasises, for a Tribunal to go beyond mere mention of evidential issues and to make findings in relation to them, and in particular in relation to inconsistencies where they have not become otiose, is a matter of principle, as appropriate to our case, hugely important to both individuals involved in it, as it was in Anya.
23. Mr Lynch recognises, to use the language of the antithesis described in Anya supra at paragraph 26, that the Courts will not interfere with a decision, whatever its incidental flaws, where it has covered the correct ground and answered the rights questions. But, adds Mr Lynch, it is the other half of the antithesis that here applies; this, he says, is a decision which has failed in its basic task and hence, whatever its other virtues, it should not be upheld. Our task, in a sentence, is to find which, if either, half of the Court of Appeal's antithesis is the one which fits this case.
24. We do not understand Wheeler and anor -v- Durham County Council supra to diminish the importance of the parts of the reasoning in Anya to which we have drawn attention. In paragraph 54 in Wheeler Lord Phillips M.R. said:-

"In Anya -v- University of Oxford 2001 EW CA CIV 405 the Court of Appeal hold that an Employment Tribunal must make conclusions on the factual issues essential to its conclusion. It does not follow, however, that an Employment Tribunal has to explore the circumstances of every event in the evidence placed before it. It only has to reach conclusions on the essential issues."

That represents no gloss upon Anya. Anya draws attention as we have seen, to the need not merely to set out evidential issues but to follow them through, with findings of fact, to a reasoned conclusion except to the extent that the issues have become otiose.

25. At this point in his argument Mr Lynch begins a description of what, he says, are matters which were important issues on which findings were essential but upon which no finding was made. Indeed, in some cases, the issues were not even mentioned by the Tribunal. Thus: -

(i) In answer to a written question, put to her before the Tribunal hearing, Mrs Curtis had answered that during the weekend in Jersey and on return from Jersey she had not told Mr Hyland that her husband had made unkind remarks to her regarding the ageing of the skin upon her neck and face.

The point was a small one but a greater degree of intimacy might perhaps be credibly found to lie between the two of them had Mrs Curtis been disparaging of her husband in some such way. In cross-examination of Mrs Curtis, says Mr Lynch, Mrs Curtis accepted that her written answer had been untrue. We do not have the Chairman's Notes on this part of the cross-examination but notes made by Mr Hyland's solicitor at the time have been referred to without objection. As is often the case with notes, they are less than entirely convincing but as explained by Mr Lynch on instructions from the note taker, they shew Mrs Curtis accepting that her answer had been untruthful as written and have Mrs Curtis accepting that her husband had, indeed, made remarks about her skin, albeit in a joking fashion. Mr Lynch says, firstly, that the exchange showed that Mrs Curtis was willing to lie in support of her claim before the Tribunal; secondly, that the evidence that she had not contributed to conversation on such personal subjects was false and, thirdly, that, for all that, the Tribunal made no finding on the subject at all.

(ii) Next Mr Lynch turns to Mr Hyland's evidence that Mrs Curtis had volunteered information as to lumps which she had had removed from her breasts. Mrs Curtis had denied this in writing. Again, the issue was far from decisive but, if conversation had ventured into such personal areas, that might have suggested a greater degree of voluntary intimacy between the parties at the time than otherwise would be likely to be taken to be the case. It transpired in evidence that there had, indeed, been three lumps which had caused Mrs Curtis concern. Mrs Curtis was asked how Mr Hyland could possibly have known of that had she not told him. She identified three members of staff whom she said she had told of her having had the three lumps. Two of the three members were called as witnesses and her account was not confirmed. Whether those witnesses denied that Mrs Curtis told them about the lumps or whether the subject just was not touched upon with them is unclear and, of course, the third of the three persons said to have been told gave no evidence. Mr Lynch's point here is that whereas, in a passage from the Tribunal's paragraph 18 which we have cited, the Employment Tribunal recite, as part of his case as they have understood it (they seeming to regard it as of sufficient importance for it to be stated by them as a material part of his case) that Mrs Curtis had volunteered information as to the lumps, there was no finding whatsoever on the subject.

(iii) The Employment Tribunal plainly attached importance to Mrs Curtis's reaction, as it was made visible, to the events in Jersey. They say so in their paragraph 34 supra. We have already cited the Employment Tribunal's findings as to how Mrs Curtis appeared to her colleagues on Monday the 14th September, to Mr Biggs, as he accepted, during the disciplinary investigation and to the counsellor, Mrs Orchard, over one or more of the four occasions on which Mrs Curtis visited her. The Employment Tribunal held that the way she "presented", as Mrs Orchard described it, was consistent with her allegations. But, says Mr Lynch, one might expect a claimant so to "present". The Tribunal, though, he emphasises, never held, one way or another, whether such appearance was genuine or represented play acting by Mrs Curtis.

(iv) At the disciplinary investigation Mrs Curtis had been asked the obvious question, à propos the time of about 10.0 p.m. on the Saturday evening in Jersey, "Why didn't you go to bed?". Her evidence had been that Mr Hyland had said "Feel free to go to bed when you want" and that she already felt tired. Her answer to the disciplinary investigation had been "I don't know. I just followed him around". The Employment Tribunal made no finding at all as to why, given the opportunity to retire and the fact that she already by then felt tired, she had no real explanation of why she had not left at that stage.

(v) When she visited Mrs Orchard, the counsellor, Mrs Curtis spoke of her concerns about children in Mr Hyland's care, saying that he had an abusive style towards the children, and that he was "professionally not O.K.". She so urged to such a degree that Mrs Orchard gave Mrs Curtis the telephone number of the NSPCC if she wished to help. Yet in her evidence in chief (presumably so as to be consistent with her voluntarily staying in his company for a long while in Jersey) Mrs Curtis had said that she had always trusted Mr Hyland as the managing director of an organisation caring for youngsters and that she had trusted and respected him as her boss. Given that the employing company's business was the provision of care and supervision for children with emotional and behavioural difficulties and that Mr Hyland was its managing director, the complaint, as Mrs Curtis was recorded as putting it to Mrs Orchard, was plainly very serious and wounding as far as Mr Hyland was concerned. It transpired that Mrs Curtis had not rung the NSPCC or, indeed, any other responsible authority in relation to poor treatment of children in the employer's care. Although Mrs Orchard's note refers to Mrs Curtis having expressed concern (with our emphasis) "re: Children that are in his care" and "His abusive style toward children", in her later oral evidence Mrs Curtis sought to escape from the difficulties that those references caused her. The contrast with what she was recorded as saying to Mrs Orchard and what she was saying in oral evidence as to her trusting Mr Hyland was obvious and her failure to telephone the NSPCC or any other responsible body concerned with the well-being of children needed explaining if she was to stand by the form of her complaint as Mrs Orchard had recorded it. Her explanation in oral evidence was that her concern was specifically merely about the one child who had been taken to Jersey. Mrs Orchard in cross-examination indicated that she did not hear anything about any specific children being at risk and repeatedly used the plural "children" rather than the singular "child". All this suggested a very significant change of tack on Mrs Curtis's part but it led to no finding whatsoever by the Employment Tribunal as to whether there had been a false and wounding allegation about Mr Hyland by Mrs Curtis to the counsellor or whether there had been some misunderstanding such that Mrs Orchard had transposed into "children" a complaint that had been intended and expressed by Mrs Curtis be a reference to only one child. Even then, the giving of the NSPCC telephone number and Mrs Curtis's failure to act on it would need some explaining, but no findings were made by the Tribunal.

(vi) A highly unusual allegation made by Mrs Curtis at the disciplinary investigation on the 16th September was that Mr Hyland whilst in a car had said to her that he would get a branch and slash his back and ask his baby son to bite his arm and that it would turn him on because he would be thinking that it was she, Mrs Curtis, who had done it. Plainly it was already an allegation of extremely distasteful conduct. By the time of her witness statement, however, the allegation had changed. It had become that the subject had come up when she and Mr Hyland were together in the airport departure lounge in Jersey (a thing which might itself require some explaining if he had been so greatly offensive the night before). He said to her, so her written witness statement ran, that he got his baby son, then about 1 year old, to bite his inner thigh. He said he would like to imagine (she said) that it was she, Mrs Curtis, who had done the biting and that that would turn him on. There had been a change, therefore, from the bite being directed to an arm to the more distasteful "inner thigh" and the place where the conversation took place had changed from being in a car to being in the departure lounge. There were no findings at all by the Employment Tribunal as to whether this curious but, as one would recognise, upsetting allegation, so far as Mr Hyland was concerned, was made good or not, nor how the inconsistencies between Mrs Curtis's two versions could be explained. Both versions of the complaint were, as we understand it, vigorously denied by Mr Hyland.

(vii) The evidence given on behalf of Mr Hyland and Prospect Care was, as it would seem, replete with references to Mrs Curtis having indicated to others that her marriage was in difficulties. Whether or not it was would, of course, not be decisive, but if Mrs Curtis had spoken openly to others about difficulties in her marriage it would have made more credible Mr Hyland's assertion that she had said to him that her marriage was in difficulties. The evidence given by way of witness statement on the employer's side included that of Nicky Stocker, a fellow co-employee of Mrs Curtis, who confirmed that Mrs Curtis had spoken to her on several occasions regarding the fact that she was experiencing difficulties within her marriage. It was said that the conversations had taken place over a period of several weeks prior to the trip to Jersey. Nicky Stocker said that she thought that it was common knowledge within the staff at Prospect Care that Mrs Curtis was experiencing marital problems. Tina Emery, another co-employee of Mrs Curtis, said that it was general knowledge within the staff that Mrs Curtis was experiencing difficulties within her marriage. Tina Emery's evidence went on to say that she had witnessed Mrs Curtis (after Mrs Curtis had left Prospect Care) at a Supermarket at Yeovil with a man whom she took at first to be Mr Curtis but who proved not to be. The nature of the allegation was that Tina Emery was suggesting that Mrs Curtis and the man she was with had a plainly close relationship consistent with Mrs Curtis's marriage being in difficulties. The Tribunal expressly held that they did not accept that evidence from Tina Emery, recognising that its force was, presumably, to allege that the Applicant had marital difficulties. But there were no adequate findings at all by the Tribunal as to the evidence that Tina Emery and others had given as to Mrs Curtis having openly spoken to others about her marriage being in difficulties. Whether it was in such difficulties was almost irrelevant but if, consistently with evidence about which the Tribunal made no findings, Mrs Curtis had been openly saying that it was, that would have made Mr Hyland's evidence a deal more, and Mrs Curtis's a deal less, credible.

(viii) Notwithstanding the conduct which Mrs Curtis attributed to Mr Hyland running down to 1.30 a.m. or so on the Sunday morning in Jersey, she later joined him for breakfast at the hotel and thereafter they together visited the hotel pool and gift shop after breakfast. There seems to have been no investigation as to whether breakfast could have been taken separately had she chosen or whether the journey to the airport in Jersey could have been arranged separately had she chosen or whether the airline seats to be assigned to the two of them had necessarily to be together or could have been separate had she chosen. She had made no complaint to the hotel, to the Jersey Police or to her husband at this stage. She made no arrangements for her husband to meet her at Exeter Airport. She accepted a lift from Mr Hyland in his car from the airport to Somerton. Whilst Mrs Curtis had explained her failure to complain whilst in Jersey by saying that she had felt overpowered, intimidated, helpless and trapped on the island there seems to have been no explanation given as to why, once back at Exeter Airport, she continued to be in Mr Hyland's company. Given the grossness of the behaviour on Mr Hyland's part which was alleged against him, her continuing to remain in his company required, surely, some compelling explanation. As her allegations had included that harassment by Mr Hyland had continued during the morning of the Sunday whilst in Jersey it was not that she could explain her continuing to be in his presence by reason of the harassment having stopped. But the Tribunal makes no references to the difficulties which Mrs Curtis's conduct presented to her case.

(ix) As we have seen there was a disciplinary investigation. The Tribunal held that it was largely undertaken by Mr Biggs, the senior manager of Prospect Care. He had worked as a child care officer for 15 years with experience with the NSPCC and others. It was Mr Hyland who had instructed Mr Biggs, to be assisted by Mrs Pat Ashton, to conduct the investigation. Mrs Curtis was sent home on full pay pending the outcome. There was no formal suspension. Nor was Mr Hyland suspended or removed from the workplace. Mr Biggs, with Mrs Ashton taking notes, interviewed Mrs Curtis on the 16th September 1998 and Mr Biggs interviewed Mr Hyland later that afternoon. Mrs Curtis had attended with a friend, Tracey Searle, and there was a contest as to whether Tracey Searle's or Mrs Ashton's notes were the more accurate. The Tribunal preferred those of Mrs Curtis and Tracey Searle. The Tribunal spent some time looking at the conduct of the disciplinary investigation. It transpired that Mr Biggs admitted to Mrs Curtis that he and Mrs Ashton had been out drinking with Mr Hyland at a social function on the evening of the 16th September, in the middle of the investigative process. When she learned of this Mrs Curtis objected. Mr Biggs reported her objection to Mr Hyland and Mr Hyland instructed him to halt the investigation. Given Mrs Curtis's objection and the taint that the investigation had acquired it can hardly have been wrong to stop it. The Tribunal said:-

"After this the Respondents, through Mr Biggs, [Mr Hyland] and then their solicitors, sought to encourage [Mrs Curtis] to pursue her claim through some external open forum if she felt it appropriate. However, the Respondents took no steps to set up any such external procedure, nor to invite any external mediation, conciliation or advisory body to assist in conducting a procedure which would then be patently objective."

The Tribunal also found that Prospect Care had no adequate procedures for dealing with complaints of this kind. The Employment Tribunal found that the investigation procedure was flawed. They held that Mr Hyland and Mr Biggs between them did not supervise the conduct of an acceptable or impartial investigation. Mr Hyland himself had questioned some witnesses about the allegations. The Tribunal held that Mr Hyland should have been suspended. It will be remembered that in their conclusion in finding, on balance, Mrs Curtis's version to be more credible, amongst the things specifically referred to were the Respondents' failings in the investigation process. Just how failings in the investigation process could have led to a finding as to the credibility of events in Jersey was not explained by the Tribunal at all. One could readily see, if Mr Hyland had been held to have subverted the disciplinary investigation in some way so as to conceal facts or avoid some findings likely to be made against him, that that would have been material but there is no finding that he sought to hide or avoid anything in relation to the investigation. He was held to have been amongst those suggesting that she should take matters to "some other external forum", a phrase capable of including that she should take matters to the Employment Tribunal. Here Mr Lynch's complaint is not so much that there was no material finding by the Tribunal but that the primary facts found by the Tribunal seem not to point in the way which the Tribunal took them to, namely to assisting the Tribunal in preferring Mrs Curtis's version of what had happened in Jersey.

26. Miss Eady has not complained that any of these points raised by Mr Lynch had not been raised below. The Tribunal's failure to make findings of fact cannot be explained by an averment that the points were not raised for their consideration.
27. Against this background we return to the important paragraph 34 of the Employment Tribunal's decision which we have cited in our paragraph 9 above. The Employment Tribunal refers to "the supporting documents" without any indication of how they pointed one way or another on the issue of whose evidence was to be preferred as to the events in Jersey. The Tribunal then refers to demeanour and bearing but it had held that both Mrs Curtis and Mr Hyland had been consistent witnesses with regard to those events. The Tribunal find Mrs Curtis's version to be "more consistent with the remaining findings of fact", but that is hardly a fair point if, as Mr Lynch's argument has shown, there were many issues of fact that could have assisted Mr Hyland's case or weakened Mrs Curtis's but on which the Tribunal failed to come to any stated conclusion. The Tribunal refers to Mrs Curtis's reaction to the events in Jersey without ever holding that they were spontaneous and genuine and they then refer to the Respondents' (plural) failings in the investigative process. It is impossible to see how the Company's failings (unless procured by Mr Hyland) could go to his credibility and there is no finding as to such procurement. As for his own failings in the investigative process, as we have mentioned, there is nothing that would seem such as could fairly be taken into account on the issue of the credibility of Mr Hyland in relation to the events in Jersey.
28. We cannot pretend that this case has not caused us considerable unease; there was evidence supporting the Tribunal's conclusion and we recognise the respect which has to be paid to the conclusion of a body, such as this Tribunal, which saw and heard the witnesses over several days. However, we accept Mr Lynch's argument that there were here too many material issues, issues far from otiose, left without findings of fact upon them. What the findings might have been we cannot say but we accept that they could very well have helped Mr Hyland's case or weakened Mrs Curtis's. To revert to the antithesis referred to in paragraph 26 of the Court of Appeal's judgment in Anya supra, the Employment Tribunal's decision here is not such that, whatever its incidental flaws, it can be said to have covered the correct ground and answered the right questions; rather it is, in our view, one which has failed in that basic task, whatever its other virtues.
29. Accordingly we allow the appeal and set aside the decision sent to the parties on the 29th July 1999. But the nature of the argument that we have heard on behalf of the Appellants does not permit a conclusion that there was no sexual discrimination or no unfair dismissal. There is no alternative but for us to order that the whole matter should be remitted for consideration afresh by a different Tribunal than the one which dealt with the matter in 1999. Both sides will be at liberty to apply to the Employment Tribunal for directions in relation to the fresh hearing, should directions be required.