United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1135_94_1005

Appeal No. EAT/1135/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 10 May 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MISS J W COLLERSON

MR D J JENKINS MBE

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MS S KENNEDY          APPELLANT

(1) EAST DORSET HEALTH AUTHORITY

(2) DORSET HEALTHCARE (NHS)          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant APPELLANT IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Ms Kennedy against the decision of the Industrial Tribunal held at Southampton on 20 July 1994.

The Tribunal had a preliminary hearing on an originating application presented by Ms Kennedy on 13 May 1994, claiming that she was unfairly dismissed for, among other reasons, sex discrimination and, on the same basis, had been passed over for promotion and that, in general, her employees, the Respondent, Dorset Health Care NHS Trust, had repeatedly breached its own equal opportunities policy.

The Tribunal's unanimous decision was that the application had not been presented to the Tribunal before the end of the period of three months, beginning when the act complained of was done and, under s.76(5) of the Sex Discrimination Act 1975, the Tribunal found that it was not just and equitable to consider the application out of time.

The extended reasons for the decision were notified to the parties on 4 August 1994. Ms Kennedy appealed by notice of appeal dated 6 September. Our function at the preliminary hearing is to decide whether Ms Kennedy's notice of appeal raises an arguable point of law which should be considered at a full hearing of the Tribunal. The Tribunal only has jurisdiction to hear appeals which raise points of law. If there is no point of law then the only course we could take is to dismiss the appeal.

Ms Kennedy has appeared in person. Her case and oral arguments are supported by written arguments which set out in detail the grounds of her complaint and the reasons why she says that the Tribunal decision was legally flawed.

In order to understand the arguments, it is necessary to look first at the Sex Discrimination Act, which contains a provision in s.76 about the period within which proceedings must be brought under the Act. The two subsections relevant are, first, subsection (1) which says:

"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 when the act complained of was done."

If it is out of time, there is a discretion in subsection (5) that enables a Tribunal to consider a complaint which is out of time if:

"in all the circumstances of the case, it considers that it is just and equitable to do so."

The function of the Tribunal is, first, to ask what is the act complained of? Secondly, was that act done before the period of three months. If it was done before the three-month period, the next question is, whether, looking at the whole case, it is just and equitable to extend the time so that it can be brought.

The background to this case is summarized in an earlier judgment of this Tribunal given by Mr Justice Morison a year ago, on 28 April 1994. That judgment was given on the preliminary hearing of an appeal by Ms Kennedy against another decision of the Industrial Tribunal. In those proceedings Ms Kennedy made a complaint against her employers on three matters: unfair dismissal, redundancy and time off. She claimed that she had been unfairly dismissed from the post of the Community Dental Officer by the East Dorset Health Authority. She was forced to accept redundancy, despite the availability of work for which she held an appropriate higher qualification and had relevant experience.

The application was heard in Southampton. The Tribunal found that she had been unfairly dismissed. She was awarded £3,156 compensation and it was ordered that she should be reinstated. The employers did not comply with the order made by the Tribunal. The Industrial Tribunal ordered that their order should be complied with by 1 February 1993. What then happened was that she brought the matter back to the Tribunal. The Tribunal entered a further decision. The further decision was to the effect that it was reasonably practicable for the employers to have complied with the order for reinstatement. They awarded to Ms Kennedy the maximum compensatory award of £10,000 and an additional award, which they had power to do, by reason of the refusal of the Authority to reinstate her, of £4,100.

Ms Kennedy appealed against that, but the Employment Appeal Tribunal found that there was no arguable point of law raised on her appeal. There was no ground in law for overturning the decision of the Tribunal in compensation.

These proceedings came about as a result of what was said in the concluding paragraph of the Tribunal's judgment:

"We believe that the real nub of her complaint before us is that it has emerged, she says, that her employers have been discriminating against her on the grounds of her sex. If that is so, and we make no comment one way or the other about it because we simply do not know what the facts are, then she may have a remedy under the Sex Discrimination Act. We should make it absolutely clear that all that the Industrial Tribunal has dealt with so far and all we have dealt with today, is her complaint of unfair dismissal and redundancy and for the reasons I have given there is no arguable point of law in relation to that. It is not for this Tribunal to give advice to people but if I might respectfully say, it may be that Mrs Kennedy should consult with the Equal Opportunities Commission and ascertain whether it is open to her to make a complaint of sex discrimination, bearing in mind both the time limit provisions and the fact that she has fundamentally succeeded in her claim for unfair dismissal. We simply do not know whether such a claim would be possible and if so whether it would be justified and we do not wish in any way to give any kind of indication either positively or negatively on that point but we wish to make it plain that we have been dealing with a quite different matter today."

Although the Tribunal had made it clear in that passage that they were not advising Ms Kennedy about her position, she felt justified by her sincere grievance in this whole affair, to make an application to the Tribunal. She did that on 13 May. In that application she set out in Box 10 and the attached pages a detailed statement of the grounds on which she sought to bring her claim of sex discrimination.

The Industrial Tribunal in the extended reasons set out the history of Ms Kennedy's employment and the circumstances in which it came to an end. They quoted the passage from the judgment of the Employment Appeal Tribunal. They then referred to the claims in the originating application. They referred to various arguments put before them by Ms Kennedy and also by the Health Authority. The Tribunal said this in paragraph 12:

"In answer to the Tribunal as to what matters may have come to light between July 1991 and May 1994 which would entitle the applicant to say that circumstances had changed, or that she had been misled, she was unable to point to any particular matter save to say that because her original unfair dismissal claim was still `live' in that it had not been finally disposed of by the Employment Appeal Tribunal she did not think it necessary to commence any fresh or different proceedings."

The Tribunal stated that the time-limit had expired on a number of complaints that she made. It was obviously more than three months since the letter of July 1991. It was obviously more than three months from October 1991. Those were dates relating to her unfair dismissal and her being passed over for promotion. It also appears to us that the three months had expired from the later date on which she made complaint that in 1992 the two men involved in the redundancy, Mr Sullivan and Mr Wartnaby, had been re-employed.

It appears on examining the case in considerable detail that Ms Kennedy is unable to point to any act which occurred within the three months before the presentation of the originating application on 13 May 1994. We asked her to identify for us, in her oral argument, the acts of sex discrimination which she complained of. She confirmed, as appeared from the documents, that they were selected for redundancy, being passed over for promotion, re-employment of the two men who had been made redundant in 1992 and, she added, the failure of the Authority to comply with the order for reinstatement after the Industrial Tribunal had heard her unfair dismissal claim.

Those matters confirm that there is no act that Ms Kennedy can say was committed within the time period within which proceedings must be brought.

Therefore, there is no ground in law for questioning the correctness of the first part of the Tribunal's decision that the complaint was brought out of time.

That brings us to the second part of the decision in which the Tribunal stated, in paragraph 19 of the extended reasons, that the Tribunal found no fact, matter or circumstances which would entitle the Tribunal to say that it would be just and equitable to extend the time-limit.

Is there an error of law in that conclusion? In our view, there is not. What Parliament has entrusted to the Industrial Tribunal under s.76(5) of the 1975 Act is a very wide discretion to extend the time-limit if they think it is just and equitable to do so. If the Tribunal thinks it is not just and equitable, that conclusion can only be questioned on an appeal to this Tribunal if it can be shown that the Tribunal exercised that discretion by ignoring a principle of law or by a misunderstanding of the situation, for example, by looking at irrelevant matters or by failing to look at relevant matters. In the arguments we have read and heard from Ms Kennedy, we are unable to see any circumstance which invalidates the exercise of this discretion.

We have reached the conclusion that there is no arguable legal ground for appealing the decision of the Industrial Tribunal. There is, therefore, no point in this case proceeding to a full appeal. We dismiss it.