United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J BOWERS (of Counsel) The Force Solicitor Lincolnshire Police Force Headquarters PO Box 999 Lincoln LN5 7PH
For the 1st Respondent For the 2nd and 3rd Respondents	THE FIRST RESPONDENT NEITHER BEING PRESENT NOR REPRESENTED MISS J BEALE (of Counsel) North Yorkshire Legal Services County Hall North Allerton DL7 8AD


 


JUDGE PETER CLARK: In this case the female applicant, Ms Stubbs, who was at all relevant times serving with (to use a neutral expression) the Regional Crime Squad North East ["RCS"], complained of acts of sexual harassment and unfavourable treatment on grounds of her sex on the part of her superior officer Detective Sergeant Walker. She brought her complaint originally against Mr Walker and this appellant, the Chief Constable of the Lincolnshire Police ["the Lincolnshire Police"].

Subsequently Mr Taylor, the Co-ordinator of the RCS and the Chief Constable of North Yorkshire Police, which was said to be the lead authority of the ten forces represented on the RCS, were joined as third and fourth respondents.

On 16th January 1997 a Chairman, Mr Sneath, sitting at Nottingham dismissed an application by the third and fourth respondents to be disjoined from the proceedings.

The third and fourth respondents appealed against that decision or order to this appeal tribunal, EAT/145/97/AM, and on 2nd May 1997 a division presided over by Morison J adjourned that appeal until after the full Industrial Tribunal had considered the complaint on its merits.

That hearing took place before a full Industrial Tribunal sitting at Nottingham under the Chairmanship of Mr Sneath on various dates during June and July 1997.

In a decision with full reasons promulgated on 9th September 1997 the tribunal upheld the applicant's complaint against Mr Walker and the Lincolnshire Police and dismissed the claim against the third and fourth respondents. Against that decision the Lincolnshire Police appeal on two grounds:

(1) on the basis that they are not responsible for the acts of Mr Walker, responsibility lying under s. 17 Sex Discrimination Act 1975 with the third and/or fourth respondents ["the s.17 point"].

(2) that in part the decision was flawed in that certain incidents did not occur in the course of Mr Walker's employment under s.41 of the Act ["the s.41 point"].

As to the s.17 point, that mirrors the substance of the first appeal brought by the third and fourth respondents. It is common ground that the point raised in both appeals raises an arguable point of law. We agree. Accordingly we shall direct that the two appeals be consolidated and listed together for a full hearing.

In relation to the s.17 point Mr Bowers, on before of the Lincolnshire Police, seeks to place before the appeal tribunal certain factual matters not dealt with in the tribunal's reasons. They are to be found in paragraphs 11 and 12 of the his skeleton argument prepared for the purposes of this preliminary hearing.

We have had the advantage of a skeleton argument prepared by Ms Beale, Counsel for the third and fourth respondents below, who appears before us today. It is apparent that there is some agreement as to those factual matters, but not complete agreement. In these circumstances having heard representations on behalf of the parties, we direct that the parties:

(1) Prepare an agreed statement of facts; and

(2) lodge a joint application in writing conforming with paragraph 7 of the Employment Appeal Tribunal Practice Direction, setting out the names of the witnesses whose evidence is said to be relevant to the s.17 issue, and identifying those parts of their evidence which is alleged to be relevant to that issue, in so far as it is not covered either by the tribunal's findings of fact or by the agreed statement of facts.

Those documents to be prepared and lodged by 17th January 1998.

I shall then give further directions if necessary as to production of extracts from the Chairman's Notes of Evidence.

As to the s.41 point in relation to two incidents which occurred during off duty hours in public houses; in the light of the observations of Waite LJ in Waters v Metropolitan Commissioner of Police [1997] IRLR 589, paragraph 82, to which we have been referred by Mr Bowers, we accept that this point also is arguable. It will therefore be considered at the full hearing of the consolidated appeals.

Finally, we direct that the consolidated appeals be listed for a one day hearing, if practicable, before the President. Skeleton arguments should be exchanged and copies lodged at this tribunal not less than 14 days before the date fixed for the full appeal hearing.