United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 585_93_2001

Appeal No. EAT/585/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20th January 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR T S BATHO

MRS E HART

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MRS U D MOONEY          APPELLANT

PADDOCK SADDLERY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR S GORTON

(Of Counsel)

Messrs Rileys

Solicitors

46 & 48 Walton Road

Stockton Heath

Warrington

Cheshire

WA4 6NL

For the Respondents MR T LINDEN

(Of Counsel)

Messrs Stephensons

Solicitors

26 Union Street

Leigh

WN7 1AT


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against a decision of the Industrial Tribunal sitting at Liverpool on the 25th May 1993. The Tribunal unanimously decided on a preliminary point that a complaint made by Mrs Ursula Mooney against Paddock

Saddlery should be dismissed on the grounds that it was out of time under the Employment Protection (Consolidation) Act 1978 and that they should not grant an extension of time for bringing a complaint under the Sex Discrimination Act 1975. The Tribunal therefore dismissed the application which was made at the hearing under Section 76(5) of the 1975 Act.

Mrs Mooney was dissatisfied with the decision and presented a Notice of Appeal to this Tribunal dated 21st July 1993.

The background to the dispute is that Mrs Mooney worked as a Sales Assistant from the 9th January 1990 to the 11th August 1992 for the Respondent, Paddock Saddlery. The proprietors of Paddock Saddlery are Mr and Mrs Holcroft. They run a shop which specialises in the sale of horse accessories.

On the 11th December 1992 Mrs Mooney presented a complaint to the Industrial Tribunal that she had been constructively and unfairly dismissed by the Respondent. The Originating Application contains details of the date and nature of employment and her hours of work. It sets out, on the second page, a narrative account of the circumstances in which she complained that she was constructively and unfairly dismissed. The essence of the complaint was that when she started working everything was fine. She enjoyed the work, and was treated with respect and courtesy. However, from about September 1991 Mr Holcroft's attitude changed. He started to become familiar with her; he made suggestive remarks and she alleges that on occasions he made sexual advances. She was offended by the harassment that she alleges she was subjected to and resented Mr Holcroft's behaviour. She alleges that, after about Christmas 1991, Mr Holcroft's behaviour changed. There were no further complaints of a specific sexual character. The complaints are that he made life very difficult for her, picking on her, making unfounded complaints and generally being nasty and antagonistic to the point where she felt unable to tolerate the position any more. Her notice of application states:

"the Applicant contends that Mr Holcroft's behaviour was such as to amount to breach of her Contract of Employment justifying her leaving.

In the circumstances, the Applicant complains that she was constructively and unfairly dismissed."

She says in Box 13 of the form:

"I feel the reason why I was forced to leave my employment was due to the change in Mr Holcroft's attitude towards me after Christmas 1991 when I made it very plain to him that the sexual remarks which he was making and the sexual overtures which he was making were most unwelcome and I would not tolerate them any more. From that point onwards, he became very aggressive in his attitude towards me and I think it was that rebuttal I have referred to that caused his change of attitude."

The Originating Application was signed by Mrs Mooney and was dated 9th December 1992. There is one other part of the Application which I should refer to. Box 11 states:

"(In an application under the Sex Discrimination Act or the Race Relations Act) state the date on which action complained of took place or first came to my knowledge."

The entry in relation to that item is:

"Not applicable."

It is undisputed that this Originating Application was settled by Counsel on behalf of Mrs Mooney. His name is stated on the Originating Application. I hasten to add that it was not the name of the Counsel who has appeared for Mrs Mooney before the Industrial Tribunal hearing or before this Appeal Tribunal.

On receipt of the Notice of Application Paddock Saddlery put in a Notice of Appearance. The Notice of Appearance responds to the complaint of constructive unfair dismissal in these terms - that Mrs Mooney was not dismissed; she left of her own accord and without giving any notice. More details are given of the grounds on which the claim was resisted. The allegations relating to suggestive remarks and sexual advances and other harassment are all denied. Some general observations are given about the nature of Mr and Mrs Holcroft's business and their activities in it and to the atmosphere in which the business is conducted. Details are given of an incident on the 11th August 1992 which, according to Paddock Saddlery, led to Mrs Mooney leaving of her own accord.

It is common ground that the Originating Application was presented after the time limit of three months had expired. The time limit of three months expired on the 10th November 1992. The Originating Application was not presented until 11th December 1992.

It was conceded before the Industrial Tribunal that it was reasonably practicable for the Application for unfair dismissal to have been presented within the three month period. That is obviously a proper concession to have made in view of the fact that Mrs Mooney had consulted solicitors within that period. That concession meant that there were no grounds for extending the period of three months under the 1978 Act.

What Mrs Mooney then sought to do, through her new Counsel, was to obtain leave to amend the Application to make a complaint of Sex Discrimination under the 1975 Act, and then, if leave was granted, the Tribunal were asked to exercise discretion under Section 76(5) of the 1975 Act to allow the Application to be brought out of time. The period within which proceedings are to be brought under the 1975 Act is specified in Section 76 of that Act:

"(1) An industrial tribunal shall not consider a complaint under section 63 unless it is presented to the tribunal before the end of the period of three months beginning with which the act complained of was done."

The power of the tribunal to extend time is in different terms from that of the 1978 Act. Under Section 76(5):

"(5) A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

That is a wider test than is found in the 1978 Act.

In the case of Hutchinson v. Westward Television Limited [1977] IRLR 69 at page 71, Phillips J made some helpful comments on the power to extend time under the Sex Discrimination Act and the grounds on which an appeal might lie to this Tribunal against a decision of an industrial tribunal in the exercise of its discretion. He said at page 71 of the report:

"The second matter to which we would draw attention is that this is a new, or relatively new, statute. The formula provided by section 76(5) by which an application to extend time has to be judged is a new one, and it very sensibly gives the industrial tribunal a wide discretion to do what it thinks is just and equitable in the circumstances. Those are very wide words. They entitled the industrial tribunal to take into account anything which it judges to be relevant. We doubt whether industrial tribunals will get much assistance in exercising that jurisdiction by being referred to cases decided on other tests under other statutes. We do not go so far as to say that they are always in all circumstances irrelevant, but we would deprecate these very simple, wide words becoming encrusted by the barnacles of authority. The industrial tribunal is to do what it thinks is fair in the circumstances.

In that connection and going back for a moment to the first point, it is for the tribunal to say how far they think it is necessary to look at the circumstances of the matter complained of. No doubt they will want to know what it is all about; they may want to form some fairly rough idea as to whether it is a strong complaint or a weak complaint, and so on. Certainly it is not required at that stage to try the complaint.

The third things which we have to say about section 76(5) is this. Because it is such a wide discretion conferred upon an industrial tribunal, the task which an appellant has in such a case is a heavy one. Really he must show, if he is to succeed upon appeal, that the industrial tribunal demonstrably took a wrong approach to the matter, or that they took into account facts which they ought not to have done, or that they failed to take into account facts which they should have done, or, as a last resort which is always open upon an appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed tribunal could have reached it."

With those comments in mind we look at what happened before the Industrial Tribunal on these applications.

The Industrial Tribunal heard no evidence. They were not asked to make any decisions or findings of fact. They heard rival submissions relating to the exercise of their discretion. The decision, which was notified to the parties on the 10th June 1993, clearly sets out the arguments on each side.

On Mrs Mooney's side, the Tribunal states that it was submitted:

"that if the Tribunal did not exercise its discretion there would be prejudice to the applicant who would be denied the opportunity of her complaint being heard purely because she had been 4/5 weeks late in its presentation."

They noted the submission that it was not her fault that the Application had been presented out of time. It was the fault of her advisers. It was also submitted on behalf of Mrs Mooney that there was no prejudice to Paddock Saddlery if the time was extended, because they were well aware of the allegations which were being made of a sexual nature. Those were fully set out in the form IT1 and they had in fact been responded to by Paddock Saddlery in their Notice of Appearance. Counsel for Mrs Mooney submitted that allegations of sexual harassment were of the utmost seriousness. That was the reason that Parliament granted the industrial tribunals discretion to extend the three month period for the making of a complaint.

The Tribunal set out the points made on behalf of Paddock Saddlery, who objected to the extension of time. They made the point that, although the alleged sexual harassment had occurred prior to December 1991, Mrs Mooney had continued in employment with them until the 11th August 1992. There was no allegation of a similar nature in respect of the conduct of Mr Holcroft since 1991. It was submitted, that it was inappropriate for the time to be extended when all the alleged acts of sexual harassment had been known to Mrs Mooney and her advisers prior to the expiration of the three month period.

There is a clear appreciation by the Industrial Tribunal of the circumstances relied on by each side in relation to the application to extend time.

The Tribunal then gave their decision. They stated in paragraph 8:

"After considering all the submissions the Tribunal did not consider that this was an appropriate case for them to exercise their discretion in allowing leave for the application to be amended and for an extension of time. There were no fresh facts put forward on behalf of the applicant which had not been known to her advisers at the time when they were instructed.

9. The Tribunal took the view that the proposed application was a stratagem devised to circumvent the statutory requirement. There was nothing to have prevented the applicant's advisers bringing the claim under the Sex Discrimination Act of 1975 when they lodged the application in December 1992. It was not just and equitable to extend the time."

Mr Gorton has presented the argument on the appeal clearly and succinctly, with the help of a skeleton argument summarising his points. He conceded in his submissions that the Tribunal has a very wide discretion in deciding whether or not to extend the time limits. He submitted that the Tribunal, in this case, erred in law or came to a perverse decision in this respect. The Tribunal appears to have placed reliance expressly on the point that no fresh facts were being put forward by Mrs Mooney which had not been put forward in the initial application. He submitted that the discretion contained in Section 76(5) has never been interpreted as limited to the consideration whether fresh facts have emerged before the discretion is exercised. While accepting that the emergence of fresh facts could conceivably be a relevant consideration in a particular case, to insist on it in this case was irrelevant or perverse, in view of the fact that the IT1 contained all the allegations of sex discrimination made by Mrs Mooney. All that was defective about the IT1 was that it failed to label or describe her claim as one brought under the 1975 Act. The Notice of Appearance appreciated the complaint of sexual harassment and sought to deny the allegations. He submitted that, from a public policy point of view, it was wrong that the exercise of discretion should depend on whether or not fresh facts had emerged. He submitted that the effect of Section 76(5) was that the time limit can be overridden in any circumstances of the particular case, as long as the Tribunal considers it to be just and equitable. The real consideration for the Tribunal is whether it is just and equitable in all the circumstances of the case. He claimed that the Tribunal had failed to identify or consider what those were. They had not made any finding in relation to the prejudice which Mrs Mooney would suffer from being denied a right to pursue her complaint. They had not made any finding as to the fact that the Respondent would not suffer any prejudice by the matter being brought. He then criticised, in particular, what he described as an error or law or perverse decision of the Tribunal in considering the role and default of Mrs Mooney's advisers. It will be recalled that it was singled out as part of a submission made on behalf of Mrs Mooney that it was not her fault but her adviser's fault. Mr Gorton again made the point that the Tribunal had failed to look at all the circumstances. In particular, he complained, that what is just and equitable should be interpreted from the point of view of Mrs Mooney, as Applicant, and not simply by the conduct of her legal advisers acting on her behalf. He submitted that, if the Tribunal had considered the conduct of Mrs Mooney and not that of her legal advisers, it was plain to see that she was entirely blameless in relation to the matter being out of time.

We have considered all those submissions. We have looked at the rival submissions contained in Mr Linden's skeleton argument for Paddock Saddlery and his oral elaboration of those submissions. There are points raised which it is not necessary for us to deal with in detail. It is plain to this Tribunal that the Industrial Tribunal came to a decision that it was not just and equitable to extend the time limit, having considered all the circumstances of the case. It is impossible to detect in the Tribunal's decision any wrong approach to the exercise of the wide discretion under Section 76(5). It is impossible to say that they have come to a decision which no reasonable tribunal would have come to in the circumstances summarised.

There is, therefore, no error of law in this decision. For the reasons we have attempted to state, we shall dismiss this appeal.