United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 62_95_2007

Appeal No. EAT/62/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20 July 1995

THE HONOURABLE MR JUSTICE TUCKEY

MR J R CROSBY

MS D WARWICK

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MISS M CAMPBELL          APPELLANT

CENTURY LIFE PLC          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR P BOWEN

(of Counsel)

Nimoh Akainyah & Co

Solicitors

308 Seven Sisters Road

Finsbury Park

London

N4 2AG

For the Respondents MR J GAVAGHAN

(of Counsel)

The Borough Skerret Law Partnership

1 Dyers Buildings

London

EC1N 2SX


 


MR JUSTICE TUCKEY: At a hearing of preliminary issues before the London (North) Industrial Tribunal on 1 December 1994, the Tribunal decided that Miss Campbell (who is the Appellant before us) had sufficient continuous employment to complain that she had been unfairly dismissed, but that her complaints of racial and sexual discrimination could not be heard because they related to matters which had occurred more than three months before her application to the Tribunal, which was on 21 January 1994.

This is a sorry tale for reasons which will become apparent in the course of this judgment. The original IT1, which the Applicant submitted in person to the Tribunal on 21 January 1994 complained of unfair dismissal, sex and race discrimination. It was accompanied by a long catalogue of complaints set out legibly, but at length on nine continuation sheets of paper.

Shortly before the hearing which took place in December 1994 the Applicant, who was represented by the Brixton Law Centre, saw Counsel who advised that there should be amendments to the IT1. Both the Tribunal and the Respondents were told that that was intended, but the proposed amended IT1 was not in fact produced (and there is no criticism of anyone about this) until the day of the hearing before the Tribunal. This was not a short document; it ran to 30 paragraphs over nine sheets of typed A4.

What happened before the Tribunal has been the subject of much debate and is unfortunately, the subject of some disagreement. Miss Campbell was represented by Mr Bowen. The Respondent company were also represented by Counsel, Mr Gavaghan. At the beginning of the hearing everyone agreed that the Tribunal should first hear the issue as to whether or not the Applicant had been continuously employed for two years. The point

was that she had gone off sick in July 1993 although she was not dismissed until 1 December 1993.

At the beginning of the hearing there was also a discussion about the other points which were to be decided that day. Those points were firstly the question of the Tribunal's jurisdiction to hear the complaints of sex and race discrimination, the Respondent's case being that all of the matters relied upon by the Applicant had occurred three months before the IT1 was filed and secondly, the question of the Applicant being allowed to amend the IT1 to substitute for the Applicant's own document, the document prepared by Counsel to which we have already referred.

Mr Bowen says that once the decision on the continuous employment question was announced, he proceeded to address arguments to the Tribunal on both the outstanding matters; that is to say on the time point and on leave to amend; and that in making his submissions on the time point he referred specifically to passages in the amended IT1 which he had prepared and was before the Tribunal.

This is not the recollection of Counsel for the Respondent, or the recollection of the Tribunal Chairman whose comments have been sought. They say that they next proceeded to consider, and only to consider, the time question and no arguments were addressed at that stage about leave to amend and specifically, no reference was made, at least to the detail, of anything contained in the document prepared by Counsel.

When the Tribunal announced their decision that the complaints of discrimination were out of time, so Counsel for the Respondents recollection goes, it was then and only then that Mr Bowen realised that there was something in his amended IT1 which impacted directly upon the decision which had just been given against him. He invited the Tribunal to reconsider their decision but they declined to do so pointing him in the direction of this Appeal Tribunal, if they were wrong.

The specific point which was relevant and obviously relevant to the determination of the time question, was the complaint which appears at paragraph 30 of the typed document (on the last page of it) where the Applicant asserts that she was subjected to a series of incidents of unlawful racial and/or sexual discrimination of which her dismissal was the final act. So essentially, the point being made was that the act of dismissal itself was a discriminatory act and since that dismissal had taken place on 1 December, the complaint that it was discriminatory as well as being unfair, was within time and therefore, the Tribunal were wrong to rule to the contrary.

We find ourselves in an invidious position in having to determine what really happened. We do not think that it is necessary to say more than this. It is quite apparent from the notes that the Chairman made at the time, from the Tribunal's decision and from the Chairman's comments that whatever Mr Bowen may or may not have done, he in no way got through to the Tribunal that he was taking this point. We think he has only himself to blame for this state of affairs.

We do not think that the Tribunal can be blamed for not dealing with the point either on the basis that they were perverse or for any of the other reasons advanced by Mr Bowen. The plain fact is that this was a point that was material to whether or not the discrimination complaints were within time and whatever he thought he may have done, Mr Bowen just did not get that through to the Tribunal, as he plainly should have done.

That does not end the matter, because Mr Bowen submits that whatever he did or did not do, this point was already in the arena because in the Applicant's original IT1 after making a number of complaints about harassment she said:

" .... But I was dismissed from my job on 1st December 1993. I feel that the members of my dept had no right to treat me this way. I am very competent at my job. I have been in the I.T. industry for some 12 years. I feel that since the move to Old Baily in particular that Colin [senior colleague] wanted me to leave and saw the harassment as a way of doing so. Hence his change in attitude when I complained of harassment. I feel that he thought it would be better to have an all-male all white programming team [she was employed as an I.T. programmer]. ...."

This passage was not brought to the Tribunal's attention but on any reading of it we think the Applicant is making a complaint that her dismissal was discriminatory on sex and/or race grounds. We are unable to accept Mr Gavaghan's submissions that this paragraph should be read simply as an explanation for the detailed complaints of harassment of which the Applicant complained or that best, it was ambiguous so it would be quite wrong for us to say "Well it was an issue before the Tribunal and they should have dealt with it".

We are utterly sympathetic to the Tribunal for their failure to deal with the point. But they did and the question for us is "What if anything should we do about it?".

It is, in a sense, a very unusual position. We approach it on the basis that if there is an error of law we should interfere. We obviously try to flavour that strict approach with a sense of fair play. We think that there was an error of law since if it is alleged in the IT1 that there has been discrimination at the moment of dismissal, then this is a fact which, at a preliminary hearing, the Tribunal must assume to be true. On the that basis that the allegation was true they could not have reached the decision which they did since it could not be said that on the acts of discrimination relied occurred more than three months before 21 January 1994.

We are very conscious of the burden that re-introducing this point at this stage, will impose upon the Respondents. Whether it will have quite the calamitous consequences that were urged on us, we doubt, but it undoubtedly does open up an area of the case which would not hitherto have had to be investigated.

We would have hesitated long and hard if there were not in fact still to be a hearing of this case before the Tribunal. But the circumstances surrounding this lady's dismissal are still (so to speak) in play, because the unfair dismissal claim remains to be decided. We also think that the Appellant would feel a sense of injustice if her case could not be put as she herself wanted to put it, as a result of the unfortunate events which we have related.

Accordingly, we think that the decision of the Tribunal on this point must be set aside. However, it must be made clear that we are only doing this on a very limited basis, so as to allow the Applicant to complain that her dismissal itself was racially or sexually discriminatory in addition to her complaint that it was unfair.

We do not think it would be right to enable the Applicant to argue that other acts of discrimination can be raised as a result of this decision. Thus, we do not think that Mr Bowen's point that there was a continuing act of discrimination by the failure of the Respondents to respond to earlier complaints of discrimination is one which the Tribunal should now be required to investigate. We are satisfied that this is a new point. It was not raised in the original IT1 and it would be unfair to allow the Applicant to raise it now.

So the only point the Applicant can make, is that the act of dismissal itself was racially and/or sexually discriminatory. To what extent the long history of harassment and the like set out in the Applicant's IT1 is relevant to that limited complaint, we do not think it would be right for us to decide. But we are of the provisional view that much of it is not relevant. Obviously the Applicant will be allowed to lay some background to her complaint that the dismissal was discriminatory but it will not be necessary to investigate in length the large number of allegations of harassment stretching back over the whole period of her employment. As we say, that is a provisional view but it is one which (if there is any argument) we would expect the Tribunal to resolve robustly so as to limit the ambit of the enquiry which they have to make (in circumstances which are in no sense of their own making) so long after the event.

That deals with grounds 1, 2, 3 and 4 of the appeal. A further complaint is made that, in their reasons the Tribunal do not deal with the question as to whether time should have been extended. Both Counsel agree that the point was argued but there is no formal record of a decision having been made and no reference in the reasons to it.

The Chairman has been invited for her comments on this point (which is a late point raised by the Appellant) but because she has been on holiday she has not yet replied. We do not think it would be right to interfere with the decision on this ground. There are indications in the reasons that the Tribunal did consider the point. It would be surprising if they did not, in view of the fact that shortly before they made their decision, both Counsel had made submissions about it.

So the appeal is allowed to the extent we hope we have made clear.