United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J MACKRELL (Representative)


 


JUDGE PETER CLARK: This is an appeal by Mrs Woodgate, the applicant before the Southampton Industrial Tribunal sitting on 7th-9th October and 4th November 1996, against that tribunal's decision to dismiss her complaints of sex discrimination, unfair dismissal and breach of contract. Extended reasons for that decision are dated 23rd December 1996. An application for a review of that decision dated 13th January 1997, in substantially the same terms as the Notice of Appeal before us dated 31st January 1997, was refused by the Chairman on 5th February 1997 on the grounds that it had no reasonable prospect of success.

This is a preliminary hearing held to determine whether or not the appeal raises any arguable point or points of law to go to a full hearing before the appeal tribunal. Having carefully considered the submissions made on behalf of the appellant by her father, Mr Mackrell and the detailed Notice of Appeal, we have come to the conclusion that the matter should go to a full hearing but on the following limited grounds only.

Sex Discrimination

There are two arguable points in our judgment. The first is that at paragraph 17 of the extended reasons the Industrial Tribunal when considering the limitation period provided for in s.76 of the Sex Discrimination 1975 say this:

"The intervention of an internal grievance procedure between the date of the act complained of and the date of the Originating Application has been held to be irrelevant for the purposes of determining the beginning of the three month period."

The point which we think ought to be argued is whether that is a correct state of the law, and whether in the light of Adekeye v The Post Office [1995] ICR 464 it is arguable that the appellant raised a complaint of sexual harassment which is said to have taken place in November 1995 in a grievance letter dated 27th February 1996 which matter was or ought to have been investigated by the director responsible for looking into that grievance, Mr Jackson. The question is whether or not the grievance extended time for complaining of sex discrimination on the basis that there was here a continuing act.

The second point in relation to the time limit, is under s.76(5) of the 1975 Act. In paragraph 18 of their reasons the tribunal say:

"The words "in all the circumstances of the case" only refer to the circumstances relating to why the claim was late."

Mr Mackrell wishes to argue that the tribunal unnecessarily and improperly fettered the exercise of their discretion under s.76(5) by limiting the words in the subsection "in all the circumstances" to the question of why the claim was late. He submits that the alleged harasser, Mr Shepherd, gave evidence before the Industrial Tribunal and accepted that he had indeed sexually harassed the appellant in November 1995. That, submits Mr Mackrell, is part of the circumstances which the tribunal ought to have taken into account; bearing in mind that the time point was not taken by the respondent but was taken by the tribunal of its own motion at the end of the four day hearing.

Unfair dismissal/Breach of contract

It is apparent from the pleadings in this case, the Originating Application and the Notice of Appearance, that there was an issue between the parties as to what was the effective date of termination of the contract. The appellant argued that is was 9th May, the respondent contended that is was 12th June 1996. There appears to be no finding by the Industrial Tribunal as to what was the effective date of termination. That point may be of some significance when considering the question as to whether or not the employee terminated the employment in response to a repudiatory breach of contract by the employer.

Her case is and was that when she wrote her letter of 9th May, resigning the employment, she had not then received any indication from the employer that it had carried out or had completed its investigation which had started after her grievance letter of 27th February. In those circumstances we think that that is a point which also requires consideration on the full appeal hearing.

Finally, we shall make these consequential directions. Mr Mackrell has invited us to order Chairman's Notes in relation to a number of matters set out in paragraph 5 of his grounds of appeal. Having considered those various requests, we have concluded that items (b) and (c) of paragraph 5 require Notes of Evidence from the Chairman. That is to say, notes relating to cross examination of the appellant in relation to the tribunal's finding at paragraph 13 of their extended reasons where they say:

"She [the appellant] told the Tribunal in evidence that if Mr Jackson's letter had arrived a day earlier, she would not have tendered her resignation."

It is submitted that there was no evidence to support that finding of fact, and therefore we require the Chairman's Notes of the appellant's evidence in relation to that point. Secondly, we direct that the Chairman provide us with the Notes of Evidence given by Mr Shepherd in relation to the allegation of sexual harassment.

Finally, it will be for the parties to agree a bundle of necessary documents which were before the Industrial Tribunal for the disposal of this appeal. In particular, we think it would be helpful to provide a copy of the respondent's letter dated 8th May 1996.