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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Osborne
Lord Johnston
Sir David Edward, Q.C.
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[2007] CSIH 61
XA144/06
OPINION OF THE COURT
delivered by LORD JOHNSTON
in
APPLICATION FOR LEAVE TO
APPEAL TO THE COURT OF SESSION
under section 37(1) of the
Employment Tribunals Act 1996
by
DR. AILEEN P. LOTHIAN
Pursuer and Appellant;
against
a decision of the
Employment Appeal Tribunal
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Act: Napier, Q.C.; Allan McDougall, SSC
Alt: Strain, solicitor
advocate; Biggart Baillie
15 June 2007
[1] This is an
appeal to the Court of Session seeking both leave to appeal, and to appeal,
against a decision of the Employment Appeal Tribunal dated 22 June 2006
consequent upon an application by the current appellant to the Employment
Tribunal seeking compensation for alleged sexual harassment and discrimination
by her erstwhile employers, Edinburgh Pharmaceutical Processes Limited, in
respect of the conduct of the second respondent Dr. S. Newlands. Both respondents were represented by Mr.
Strain, solicitor advocate before us.
[2] The
Employment Tribunal in a very lengthy judgment found in favour of the now
appellant and made a compensation order.
The respondents appealed that to the Employment Appeal Tribunal who
dismissed the claim, both on the issue of time-bar and on the merits. The Employment Appeal Tribunal subsequently
refused leave to appeal to this court.
[3] In this
appeal the appellant challenges refusal of the Employment Appeal Tribunal to
grant leave to appeal and also the decision on the merits.
[4] Before us
counsel for the appellant restricted his submissions to the issue of time-bar,
for reasons which will become obvious.
[5] The decision
of the Employment Tribunal, which runs to a total of 699 paragraphs can only be
described as lamentable. It simply
rehearses at great length though not, apparently, completely or impartially, the
evidence of all the witnesses. It makes
no findings in fact. In so far as it
purports to decide any issues of credibility, it gives no reasons for such
decisions and, as Mr. Napier for the appellant accepted, it simply cannot be
sustained on any point. To the extent,
therefore, that the Employment Appeal Tribunal dismissed the claim on the
merits, Mr. Napier at this stage did not challenge that result accepting that
the Employment Tribunal's judgment was wholly inadequate. The Employment Appeal Tribunal also upheld a
complaint of bias against the chairman, but that matter was not further pursued
before us.
[6] Before us,
Mr. Napier concentrated upon the issue of time-bar and invited this court to
allow the appeal to the extent of remitting the case to a freshly constituted Employment
Tribunal to consider initially the question of time-bar and thereafter, if
appropriate, the merits of the case de
novo.
[7] It was not
disputed that the appellant was employed by the respondents as a laboratory
manager from 1 December 1997.
It was not clear whether her employment has ever been officially
terminated, but she did not return to work after being admitted to hospital,
having collapsed at work, on 21 March 2002.
Accordingly, since that date the appellant has had no further contact
with the respondents.
[8] The second
respondent was the first respondents' Managing Director and the basic case made
against the respondents related to his conduct.
It was alleged that on numerous occasions the second respondent made
remarks in the presence of, or directed to, the appellant of a sexual nature
and furthermore subjected her at times to humiliating treatment in relation to
attempting to cut hair from her head, making derogatory remarks about her
fingernails and indeed, on one occasion it is alleged that he attempted to
circle hairs on the appellant's leg by means of a pen.
[9] The law
regarding sexual harassment and discrimination is contained in the Sex
Discrimination Act 1975 (the 1975 Act) in respect of which section 1(1)(a) provides:
"' ... a person discriminates against a
woman if-
(a) on
the ground of her sex he treats her less favourably than he treats or
would treat a man ... '
By
virtue of the provision of section 5(3) a comparison of the cases of persons of
different sex under section 1(1) must be such that the relevant circumstances
in the one case are the same or not materially different, in the other.
Discrimination
in the employment field is covered in Part II of the 1975 Act. By virtue of section 6(2)(b) it is unlawful
for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her by:
'subjecting her to ... detriment.'"
[10] With regard to
the issue of time-bar the relevant section of the 1975 Act is section 76 which
is in the following terms:
"(1) An
employment tribunal shall not consider a complaint ... unless it is presented to
the tribunal before the end of -
(a) the
period of three months beginning when the act complained
of was done ...
...
(5) A
... tribunal may nevertheless consider any such complaint ... which is out of time
if, in all the circumstances, it is just and equitable to do so.
(6) For
the purposes of this section -
(a)
...
(b) any
act extending over a period shall be treated as done at the
end of that period ... ".
[11] It was not
disputed that the three month period provided for by section 76 in this case
started on 20 March 2002.
Accordingly, having regard to the date on which the application was
presented to the Tribunal the application was time-barred unless what happened
on 21 March 2002 could be regarded either as a single act of discrimination by
the second respondent occurring on that date or a further act in a continuing course
of conduct or series of acts by the respondent, which would bring the
application within the scope of section 76(6)(b).
[12] As will become
apparent we do not consider that authority plays any great part in the decision
before us, but for the record we should record that Mr. Napier referred us to Strathclyde Regional Council v Porcelli 1986 SC 137; McLaren
v National Coal Board 1988 ICR
370; Commissioner
of Police of the Metropolis v Hendricks
2003 ICR 530 and Fearon v Chief Constable of Derbyshire 2004 UK
EAT 0445021.
[13] The Employment
Tribunal in a brief reference to the issue of time-bar held that the conduct of
the second respondent while accompanying the first respondent to hospital on 21
March 2002 after her collapse at work amounted to an act of discrimination
which therefore admitted jurisdiction (paragraphs 650 to 653).
[14] In seeking to
consider this matter as focused before us we are prepared as regards events
before 21 March 2002, to make the most favourable assumptions of fact in favour
of the appellant as regards the evidence relating to the conduct of the second
respondent and thus proceed upon the basis that at certain times during the
period of employment the second respondent did behave in the manner complained
of by the appellant. But it has to be
pointed out at once that there is no evidence of any such incident occurring
after the summer of 2001.
[15] Secondly, in
relation to events on 21 March 2002, we proceed upon the basis of the summary
of evidence by the Employment Tribunal in paragraph 648.
[16] Mr. Napier
submitted to us that the conduct of the second respondent on that day did
amount to an act of discrimination on a gender basis. But if he was wrong about that he submitted
that in any event it was to be characterised as discriminatory by reason of the
fact it was a further act in a long line of continuing conduct which
accordingly would allow the three month jurisdiction to be admitted.
[17] The Employment
Appeal Tribunal dealt with this matter in paragraphs 84 to 88 which are in the
following terms:
"84. We
propose to deal firstly with the critical issue of time bar. As we have already observed, given the date
that the claimant lodged her application, it was not open to the tribunal to
find that they had jurisdiction unless there was evidence on which they could
be satisfied that the claim was for an act of discrimination no earlier than 20
March or that the claimant had been
the victim of a continuing act which ended no earlier than that date. The tribunal concluded that the second
respondent had, on 21 March 2002, treated the claimant less
favourably on the grounds of her sex.
The immediate difficulty is the lack of findings of fact to underpin
that conclusion. We have three
additional concerns. Firstly, we do not
see how, on the basis of their consideration that the second respondent's
conduct was intrusive in the two respects stated, it was open to them to
conclude that any treatment was afforded to the claimant by the second
respondent at all. The description given
by the tribunal does not involve the claimant.
Secondly, the tribunal's conclusion appears to conflict with the entry
on the Accident and Emergency sheet to which we have referred. In these circumstances, it was incumbent on
them to explain how and why they considered that they could properly proceed on
the basis that the second respondent had misrepresented that he was the claimant's
husband but they do not begin to do so;
rather, they appear to ignore that adminicle of evidence. Further, and also significantly, we cannot,
in the judgment, find any basis on which it was open to the tribunal to
conclude that any treatment afforded to the claimant that day was gender
specific at all. There is no inkling of
any comparator evidence, for instance, nor of the construction of a
hypothetical comparator. Accordingly, we
conclude that it was not open to the tribunal to find that a relevant act of
discrimination occurred on 21 March 2002.
85. Separately,
even if it were the case that a relevant act of discrimination occurred on 21
March, it would only have had the effect of keeping earlier discriminatory
conduct alive for time bar purposes, if what happened on 21 March could
properly be regarded as the end of an ongoing act. Without that, the requirements of s.76(6)(b) cannot be satisfied. It is not enough that the subsection be
referred to and nothing more, which is what the tribunal have done here. In any such case it is incumbent on a
tribunal to assess the evidence and to determine whether any proven
discrimination was of such nature, frequency, character and quality as to be
regarded as a continuum that was ongoing up until the final day complained of,
in this case 21 March 2002. To make such
an assessment, the tribunal needs to have evidence not only of the general
nature of the allegations made but of their detail and timing. There is no indication of there having been
sufficient such evidence here. The
general character of the allegations made is recorded, with some details of
what was alleged to have been said and done by the second respondent. However, it is also indicated that at first,
the relationship was, according to the claimant, a good one and there is no
indication of when it deteriorated or when and with what frequency the matters
alleged occurred thereafter. Whilst
there are references to copies of diary entries for April 2000, May 2001 and
August 2001, that which is referred to was not sufficient to show a continuing
act that ended on 21 March 2002.
There were, as we have indicated, problems with some of the entry dates,
and there is no sign of the tribunal having analysed it as such. There is, in particular, no indication in the
summary of evidence of how long prior to 21 March 2002 was the last allegation
of the generally improper conduct complained of or of the nature of the last
such allegation or of any other detail that would enable a link to be deduced
as between it and what happened on 21 March.
86. Further
and significantly, the tribunal at paragraphs 646 and 655 appear to confine
their view that the claimant's account is to be accepted to what she told them
about what was said to her by the second respondent. We note, however, that some of her
allegations were to the effect that he had not only said inappropriate things
but that he had also touched her inappropriately. The tribunal make no attempt, when dealing
with the time bar issue, to identify the timing of that alleged touching; yet that is something that, having apparently
declined to accept the claimant's evidence on that matter, they required to do
so as to exclude it from any consideration of the course of events for s.76(6)(b) purposes.
87. In
all these circumstances, we are readily persuaded that the tribunal have erred
in law in their decision on time bar. It
is perverse of them to conclude that a discriminatory act had occurred on 21
March and, for the reason above, also perverse of them to treat all the
discrimination complained of as though it were part of a continuing act which
came to a close on 21 March. Their
decision is, we regret to say, evidently irrational. Even if the summaries of evidence were to be
regarded as findings of fact, that would still be the case as support for their
conclusion is not to be found in the evidence.
Plainly, the conclusion they reached was wrong.
88. We
are satisfied that this is not a case for a remit. The tribunal have provided lengthy summaries
of the evidence and it did not contain sufficient material to support the
claimant's case that her application was not time barred. There is no justification for giving her the
chance to re-run her evidence on the hope that it might do so; in fairness to Mr Bathgate, he did not seem
to suggest that that was his intention.
Rather, his submissions were confined to seeking to persuade us that the
tribunal's conclusion could stand which failing that the claimant should now be
given a chance to present a case for an extension on 'just and equitable' grounds. As regards that, we do not consider that a
remit for that purpose can be justified either.
The claimant had the opportunity to present a case for an extension at
first instance, before the tribunal. The
written submissions lodged on her behalf stated that she did not seek to do
so. Justice between the parties would
not be achieved by allowing her now to do that which she expressly refrained
from dong at that earlier stage."
[18] Despite Mr.
Napier's valiant attempt to characterise the conduct of the second respondent
as gender specific and discriminatory on 21 March 2002 we are entirely
satisfied that the approach taken by the Employment Appeal Tribunal, which we
have just quoted, is both justifiable and indeed correct. It is not, in our opinion, appropriate to
characterise conduct as discriminatory in the sense of treating a woman less
favourably than a man, where an employer accompanies an employee who has taken
ill at the place of work to hospital and shows evidence of concern, even undue
concern, about his or her welfare as narrated by the Employment Tribunal. It is not in any way gender specific. Accordingly, if the appellant's case is not
time barred the issue to be determined is whether or not that conduct should be
characterised as discriminatory because of the previous conduct which amounted
to a continuous course of conduct. Mr.
Napier's position was that that was not necessarily the case but there was
sufficient in the issue for the matter to be re-determined on a remit to a
freshly constituted Tribunal further to consider the matter against a proper
basis of law and fact.
[19] The problem
here, as we see it, is as stated by the Employment Appeal Tribunal in the
context of there being no evidence of any continuing acts or indeed specific
acts beyond August 2001 which were discriminatory. We entirely endorse the position adopted by that
Tribunal in the last sentence of paragraph 85 to the effect that there was no
link upon the evidence between any course of conduct which might have been
discriminatory ending in August 2001 which would connect that with the conduct
on 21 March 2002 so as to categorise the latter as possibly discriminatory.
[20] In these
circumstances we are satisfied that there is no basis upon which it could be
alleged there was a continuing act of discrimination persisting until 21 March
2002, even upon the most favourable view of the evidence that can be taken on
behalf of the appellant.
[21] In these
circumstances, for the reasons given by the Employment Appeal Tribunal this
appeal must be refused.
