England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(Ms Recorder Elizabeth Slade QC)

		Royal Courts of Justice Strand London WC2 Thursday, 11th October 2001

Thursday, 11th October 2001

1. LORD JUSTICE KEENE: The applicant seeks permission to appeal against an order of the Employment Appeal Tribunal dated 9th March 2001 following a preliminary hearing by that body. At that preliminary hearing the EAT ruled that Mrs Asselman, as she now is, could proceed to a full appeal hearing on certain issues, including, I emphasise, the issue of her claim of victimisation by her employer but not on her claim for sexual discrimination because that was out of time. I have to say the appellant's notice to this court was itself out of time, being lodged only on 22nd June 2001. It was, thus, some three months out of time. Nonetheless, were I to be persuaded on the merits that there was a real prospect of success, I would not hold that against her. I turn therefore to consider the merits of the proposed appeal to this court.
2. The basic facts are that Mrs Asselman started work with the respondent company in January 1995 as an analyst. At that stage she was part of the company's Helpline team. She claimed in her originating application to the Employment Tribunal that in the Spring of 1995 she received less training than did two male colleagues. She alleged that she complained about sex discrimination at a meeting on or about 14th March 1995 and was therefore victimised by her line manager in the Helpline team. She took out a formal grievance against that line manager on the 9th November 1995. Various meetings then followed. The applicant applied for a job in the marketing department of the respondent company, and she was successful. She began working in that department on 24th May 1996. Various problems arose into which, for the most part, it is unnecessary to go in the course of this short judgment; but it is said by Mrs Asselman now that there was sex discrimination while she was working within the marketing department. The Employment Tribunal, however, found that the only potential acts of sex discrimination were those which took place while she was on the Helpline team. It rejected a claim that there had been sex discrimination against her by Richard Sullivan, the director dealing with human resources matters, in March 1997.
3. The originating application was presented to the Employment Tribunal on 16th December 1997. On the face of it, therefore, there was no complaint presented about sex discrimination within the three-month time limit. That was what the Employment Tribunal found. It considered whether it was just and equitable to consider the complaint out of time using its power under section 76(5) of the Sex Discrimination Act 1975, but it decided that it was not.
4. Before the Employment Appeal Tribunal it appears from the judgment of that body that the applicant sought to argue that the acts of sex discrimination ought to have been held to be within time because her employers relied upon her reaction to those acts when they subsequently took disciplinary action against her and dismissed her. The EAT described that argument as misconceived. It is not an argument which is repeated in any clear form in the grounds of appeal to this court; and in my view that was a sensible omission, bearing in mind that the EAT has allowed the appeal on the victimisation claim to go to a full appeal hearing. That seems to me to be the more appropriate characterisation of the argument which Mrs Asselman was seen to raise and which I have just described.
5. Today Mrs Asselman has represented herself. She contends that there was sex discrimination against her during the whole time of her employment, particularly in getting technical training. She says to me that during her time in the marketing department she had training provided for the first three months, but after she had been to Richard Sullivan with her grievance all technical training stopped or was greatly reduced. She complains that the Employment Tribunal does not deal with the allegation on her part of discrimination in terms of technical training in the latter part of her time with the company.
6. When one looks at the Employment Tribunal's extended reasons one does find a finding by the Tribunal at paragraph 25 in the following terms:

"It was also clear .... that the issue of training had been addressed. There had not been adequate transparency in the way that training had been organised prior to Diane Burton's investigation and this matter had since been addressed with the Applicant's line Managers."

7. So on the face of it, it might seem as though the Employment Tribunal did deal with this issue, contrary to the submission which is now advanced. Of course it might still be argued that the Employment Tribunal went wrong in law in reaching the particular conclusion that it did, but the question then arises whether this point was raised as a ground of appeal to the Employment Appeal Tribunal, in other words that it was a proposed issue before that body. When I raised this with Mrs Asselman in the course of her submissions she took me not so much to her grounds of appeal but to her skeleton argument that was put before the Employment Appeal Tribunal for the preliminary hearing. The passage in question reads as follows:

"I had `promotion' and significant technical training considerably which fizzled out after 3 months after my serious discussion with Tom Maddison in Spring '96 about going to a Tribunal for Sex Discrimination. The `Oracle' course never materialised."

8. I make it clear that the significance of the reference to the Oracle course is that that is a particular course on which Mrs Asselman contends she tried to get, so that she could then operate more effectively in the way in which she was expected by her employers to operate.
9. The problem with that passage seems to me to be that it does not say that Mrs Asselman was discriminated against by her employers by being provided with less or worse technical training than male colleagues were or would be. The complaint seems to be one of victimisation because of the discussion which she had with Tom Maddison about complaining of sex discrimination. That essentially is a complaint of victimisation, a matter on which, as I have already indicated, the EAT has allowed the appeal to proceed. Certainly nothing there seems to be saying to the Employment Appeal Tribunal, "The Employment Tribunal below has failed to deal with the absence of technical training or the discrimination in terms of less or worse technical training in the period of three months prior to my dismissal from the company." It follows that whether or not this point could have been raised before the Employment Appeal Tribunal it seems not to have been. Not merely did the EAT not see this as an argument being raised before it, but the documents to which I have been taken today by Mrs Asselman do not suggest that it formed any material part of her legal argument before the EAT. One of course recognises the difficulties that any litigant in person has in trying to formulate legal issues, but I am bound to say that, having been taken today to the best passages which in the applicant's judgment support her case, I find it impossible to say that there is a real prospect of successfully arguing that the EAT went wrong in law in its order on 9th March 2001. If the matter was not put before it, it cannot be charged with having erred in failing to deal with it in its judgment.
10. Consequently, both on the merits and indeed because of the fact that the appellant's notice is substantially out of time, this application for permission to appeal will have to be dismissed. Nonetheless, I am very grateful to Mrs Asselman, who has advanced her submissions this morning not only in a courteous way but in an effective and persuasive way albeit that unhappily she has not in the event succeeded.
Order: Application refused.