United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 580_95_2707

Appeal No. EAT/580/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 27th July 1995

THE HONOURABLE MR JUSTICE TUCKEY

MR A E R MANNERS

MR S M SPRINGER MBE

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(1) UNIVERSAL PIPECOATERS LTD, (2) MR R BROWN          APPELLANTS

MRS J BUSS          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR JOHN BOWERS

(of Counsel)

Messrs Wilkin Chapman

P.O. Box 16

Town Hall

Grimsby

DN31 1HG

For the Respondent MS FIONA DICKIE

(of Counsel)

Humberside Law Centre

95 Alfred Gelder Street

Hull

HU1 1EP


 


MR JUSTICE TUCKEY: In these proceedings Mrs Buss has complained to the Industrial Tribunal that her employers Universal Pipecoaters and their engineering manager, Mr Brown, have been guilty of sex discrimination against her.

The IT1 sets out a number of complaints against the employers in general and Mr Brown in particular. It discloses that on 13th December 1994 she went off sick. Her complaint was made to the Industrial Tribunal on 14th March 1995.

Both the employers and Mr Brown applied to the Industrial Tribunal for a preliminary hearing to determine whether Mrs Buss's complaints were out of time. The statutory requirement is that a complaint of discrimination must be made within three months of the act complained of.

The Chairman was asked to consider and then reconsider his decision, but he refused to hold a preliminary hearing. His latest word on the subject is contained in a letter to the parties where he says:

"I am not able at this stage to accept that there is a clear limitation point to be taken. The applicant has made allegations against Mr Brown which could be part of her evidence of ongoing harassment. Accordingly my view is that this case can best be dealt with at a full hearing against both respondents, rather than convening a preliminary hearing. ..."

Both respondents appeal against that decision.

Before considering the basis of the appeal, we think it is perhaps necessary to make one or two observations about whether and in what circumstances it is appropriate to appeal decisions of this kind.

The question of whether or not a preliminary hearing should take place is essentially one for the Tribunal before which such a hearing is requested. It is not appropriate in any general way for appellate tribunals to second guess or impose their own views upon what are essentially decisions for the Tribunal which has to try the matter. Although we have been shown a case which indicates that in the past this Appeal Tribunal has interfered with a decision as to whether or not to hold a preliminary hearing, we must say that the circumstances in which this Tribunal will do so must be considered as wholly exceptional.

Mr Bowers who appeared for the appellants today accepted that that should be the case, and accepted the principle which we have just stated He also accepted that to succeed he would have to show that in effect the decision was perverse and/or was one which created manifest injustice. We think it is worth saying this at the outset, in the hope that if it is noted, it may discourage appeals of this kind in future.

The reason for the application when one refines Mr Bowers's argument is really one which centres around the position of Mr Brown. He argues that in his case as the applicant went off sick more than three months before the complaint was presented and Mr Brown faces only specific allegations of harassment, it must be the case that the complaints against him are out of time. That is not the case, he accepts, against the employers, since there maybe a number of ways in which the case could be put against them. For example on 3rd January 1995 the applicant made a written complaint to them about sexual harassment. It is well established that a failure to investigate or respond properly to a complaint of this kind can amount to a continuing act of discrimination, and therefore that letter and indeed the actions of the employers in response to it, would put any complaint against them arguably within time.

So we are concentrating on the position of Mr Brown and it is said, when one looks at his position that it would be manifestly unjust to him for him not to be allowed the opportunity to take the jurisdictional point at a preliminary hearing and the denial of such a hearing to him will cause financial hardship, since he is separately represented. Such a hearing, Mr Bowers argues, could be concluded in a hour to an hour and a half. Not so say, the applicant; whatever the position of Mr Brown, the case will go on against the employers, he will therefore have to appear at the hearing, preliminary or otherwise, and the preliminary hearing is not likely to be as simple or quick as the appellants contend, because if it is right that the complaints against Mr Brown are out of time, the Tribunal will be invited to extend time and in doing so they must consider what is just and equitable. That is a far reaching enquiry which will involve here considering why there was a delay, to which the applicant will reply that she was ill, and the reason she was ill was because she was suffering from the effects of the acts of harassment of which she complains. If that is what has to be investigated it will not be a short matter and, no costs will be saved in the event.

We are clear that this is not a case in which we should interfere with the Chairman's decision. It seems to us that a Chairman has a very wide discretion as to whether or not to hold a preliminary hearing. The way in which this Chairman has exercised his discretion can in no sense be characterised as being perverse or one which is likely to create manifest injustice.

The preliminary hearing if it were to take place would result in all parties incurring costs. If it took place it would not be confined to a consideration, merely in Mr Brown's position. The employers would also want to have their position considered and then one would begin to get into a trial of issues which are more appropriately dealt with at a full hearing. Add to this the just and equitable argument and we do not see much saving in time, or costs even to Mr Brown if he were successful which is by no means certain given the just and equitable argument. He will in any event have to attend the full hearing since it is primarily his behaviour which is said to make the employers vicariously liable.

There was, we think, ample material upon which the Chairman could have concluded that this was not an appropriate case to hold a preliminary hearing and so this appeal must be dismissed.