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 THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2A 2LL Wednesday 19 December 2001

1. LORD JUSTICE MUMMERY: This is an application by Miss Carol Hobson, in person, for permission to appeal against the decision of the Employment Appeal Tribunal given on 6 June 2001. At a preliminary hearing the tribunal dismissed her appeal against the decision of the Employment Tribunal, which is contained in extended reasons sent by the tribunal to the parties on 8 September 2001. The Employment Appeal Tribunal dismissed the appeal at a preliminary stage for reasons given a long judgment given by the President on behalf of the tribunal. They concluded that they were unable to find any arguable error of law in the decision of the Employment Tribunal.
2. The unanimous decision of the Employment Tribunal, given after a three-day hearing in June 2000, was that Miss Hobson had not been discriminated against by the respondent, the London Borough of Hackney. The sex discrimination claim was one of a number of claims made by Miss Hobson in her IT1 of 27 July 1999, followed by a second IT1 presented on 13 March 2000. The other claims for breach of contract and health and safety at work were withdrawn at the same time as the second IT1 was issued.
3. Miss Hobson was an agency worker temporarily working as a social worker, in the Duty and Assessment Team, for the London Borough of Hackney between 19 June 1998 and 20 May 1999. It is unnecessary to examine further details, save to say that Miss Hobson contends that her treatment by the London Borough of Hackney, in particular by her line manager, Mr Oliver Mason, constituted sex discrimination and harassment. It took the form, among other actions, of an unfair reference for which she is bringing other legal proceedings for negligence and defamation. Those proceedings have not yet been tried and are contested by the London Borough of Hackney. Miss Hobson tells me she is supported by legal aid for the negligence claim, but legal aid is not available for the defamation claim. She also mentioned that there has been some suggestion of mediation in those proceedings.
4. Before the Employment Appeal Tribunal Miss Hobson took a number of other detailed points encapsulated in her second ground of appeal, namely, that she was denied the right to a fair hearing under Article 6 of the Convention on Human Rights. The early pages of Lindsay J's judgment are devoted to dealing with Miss Hobson's complaints about the alleged bias and misconduct on the part of the Employment Tribunal. Miss Hobson now says that she is not intending to pursue those complaints on an appeal to this court. In my judgment that is a sound decision, since there would be no likelihood of an appeal on that ground succeeding. I have explained to Miss Hobson that appeals to this court are limited to errors of law in the tribunal's decision. It is exceptionally difficult to succeed on a matter of law in allegations of bias of the kind which were canvassed by Miss Hobson before the Employment Appeal Tribunal and were the subject of comment by the chairman in response to those allegations.
5. Miss Hobson proposes to confine her case to an appeal against the rejection of her sex discrimination complaint. She is not in receipt of legal aid, but, if she is given permission to appeal, she intends to apply for it. I have explained that this is important because of the different regime as to costs which applies in this court. In the tribunals below, where Miss Hobson has had no success, she has not been subject to any order for costs. I have explained that, if she pursues the matter in this court without the benefit of legal aid, she would be subject to the normal rule as to costs on appeals to the Court of Appeal, namely that the successful party is awarded an order for costs against the unsuccessful party.
6. I now have to consider whether I am satisfied that there is a real prospect of success in the proposed appeal on the sex discrimination and harassment claim, or is there some other compelling reason why the matter should be heard? I have read all the papers in the case with care and I have also had the benefit of a detailed oral submission from Miss Hobson as to why she contends that there were errors in the tribunal's treatment of her sex discrimination and harassment claim. I have concentrated on the extended reasons which set out in the tribunal's assessment of Miss Hobson's claim in paragraph 9(a) to (j). The tribunal stated in a one-sentence conclusion in paragraph 10:

"....that the Applicant's complaints of sex discrimination fail."

7. I am concerned about the way in which, as a matter of law, some of the conclusions in paragraph 9 have been expressed, in particular, the way in which the individual acts of alleged sex discrimination by Mr Mason have been characterised and the references in them to Miss Hobson being "hypersensitive", in the meaning that she placed on words used by Mr Mason and in respect of gestures made by him. I am also concerned about the way in which the tribunal has dealt with the claim made by Miss Hobson that the reference was not discriminatory.
8. In my judgment, there are reasonably arguable points made by Miss Hobson in her oral submission, and in her written skeleton argument, which justify granting permission to appeal. I would emphasise, however, but there be any misunderstanding, that, granting permission to appeal on the ground that there are reasonably arguable points of law arising from the decision does not mean that the court will find there are errors of law. There is no certainty as to the outcome of the appeal. The matter will require much fuller consideration by the full court, having heard arguments by both sides, than I have been able to give on this without notice application.
9. For those reasons, I propose to grant permission to appeal confined to the sex discrimination and harassment claim. I make it clear that I do not grant any permission, and I did not understand permission to be sought, on the ground of alleged denial of a fair hearing in the Employment Tribunal. It will be open to Miss Hobson, or those representing her, to criticise the Tribunal's treatment of her sex discrimination claim on a matter of law.
Order: Permission granted on sex discrimination and harassment claim only. To be listed for one day.