United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ALAN BISHOP (of Counsel) Messrs Leonard Blomstrand Solicitors 32 Versailles Road London SE20 8AX
For the Respondents	MR TIMOTHY DUTTON (of Counsel) Messrs Park Nelson Thompson Quarrell Solicitors 1 Bell Yard London WC2A 2JP


 


JUDGE J HULL QC: This is an appeal to us by Ms Lynch against a decision of the Industrial Tribunal sitting at London (North) under the chairmanship of Mr Flint with two industrial members on 24 January 1996. To that Tribunal she had made two complaints and I will explain how we are concerned with those in a moment.

Ms Lynch was first employed by the Respondents, the Centre D'Echanges Internationaux of Chepstow Place, London W2, on 14 July 1982 and we understand that to be an organisation which deals with French people coming to this country and perhaps English people going to France, and their premises in this country apparently include something like a hotel. In her work she describes herself as Deputy to the General Manager and the job was essentially that of being a Hotel Manager. We are not aware of the details because it would appear that neither of the applications which she made has been tried out.

She had occasion to complain of the way in which she was treated, she said. It is denied that she was badly treated, but she said that she was badly treated in various ways by the General Manager, a Mr de Bussy. She said that, as a result of this treatment, she was entitled to resign and she did resign and, to put it in technical language, constructively she was dismissed. As a result of that, on 16 July 1994 she issued the first of her complaints in the form IT1, complaining that she had been unfairly dismissed and asking for compensation.

The Respondents put in their Notice of Appearance, their IT3 as it is called, on 5 September 1994 and first and foremost they said that she had not been dismissed. They complained, among other things, that they did not know enough about her case to make a proper reply to it.

But then occurred the next important event for present purposes, after (I think) the lady had instructed a Solicitor and given some particulars of her case. She applied for leave to amend her first application to allege that there had been discrimination against her on the ground of her sex, before and at the time of her dismissal on 30 April 1994. That application was refused by a Chairman of Tribunals and, after taking further advice on 11 April 1995, she issued (through her Solicitor) a further application complaining of unfair dismissal and sex discrimination. That, apparently was sent by her on 13 April 1995 and it was not received until 21 April 1995, but the Tribunal, quite rightly, thought it right to refer to the date of 13 April as the application. They also said that there had been delay, for which the Tribunal was apparently responsible, between 7 and 28 February 1995, in considering her application for leave to amend and they thought, therefore, that for both those periods she should be given allowance; they should not be taken into consideration.

The Respondents put in their Answer to the new application and then the question of time arose. I must refer to the statutory provisions very shortly. Her complaint of sex discrimination is brought under the Sex Discrimination Act 1975 and that Act provides a strict time limit for bringing such complaints in Section 76:

"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."

The last act here, it was common ground, was 30 April 1994 when she said she had been constructively dismissed and had resigned as a result.

Parliament, having enacted that strict and very short period, thought it right to provide a qualification. They said in subsection 5 of Section 76:

"A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

That was the matter which was being tried by the Industrial Tribunal chaired by Mr Flint. Was it just and equitable to hear the second application, notwithstanding that it was presented more than three months after the last of the acts complained of? There are some general observations here. It is quite clear from the scheme of this Act and the other statutes, which give the Industrial Tribunal jurisdiction, for example over unfair dismissal; over complaints of race discrimination; that Parliament intends these matters to be attended to promptly.

The ordinary delays with which lawyers are only too familiar, which courts often complain of in ordinary litigation, are not tolerated by Parliament in this context and the reason is pretty obvious when you look at the legislation. Parliament had in mind that these matters related very much to people's happiness in employment and it was not right that matters, which might otherwise fester and lead to industrial action and other undesirable consequences, should hang about; they should be tried promptly while memories were fresh and they should be dealt with promptly and Parliament hoped (unfortunately their hopes have been largely disappointed) that tribunals would feel able to put matters right straightaway, either by declaring the rights and wrongs of the matter, or by ordering reinstatement of employees who had been wrongly dismissed and so on.

There are all sorts of orders which Tribunals can make which Parliament hoped would put matters right promptly and I think it might be just to say that compensation was regarded as a secondary matter, to be awarded only if those remedies were insufficient. Unhappily, the delays which have taken place have largely nullified the hopes of Parliament in that direction, but nonetheless the time limits remain and any tribunal to whom an application is made to extend time has, of course, an unfettered jurisdiction, but is bound (we think) to look at such an application very carefully and to say, "Why should we extend time when a party has not brought the complaint within the strict time limit which Parliament has thought it right to enact?".

We must go now to how this Industrial Tribunal did deal with the matter because, of course, the discretion is given to them and not to us and it is important that everybody should realise, and certainly the representatives of the parties here today realise, that we are not given the discretion. It is not up to us to say whether we agree or disagree with the decision of the Industrial Tribunal, or whether we think a different Industrial Tribunal or we, ourselves, would or might have reached a different decision.

We can interfere only if it is apparent that there is an error of law. Parliament, in setting up this Tribunal, said that we were to try only questions of law, and give relief only on that ground. Errors of law, in the exercise of a discretion by a Tribunal, are of course difficult to establish. We must be satisfied, either that the Tribunal has obviously left out something which they should have considered, or that they have included something, quite improper and wrong, which they should not have considered, or that they have made some other obvious error of law; or finally, that their decision is so obviously unreasonable that no Tribunal, correctly directing itself on the law, could properly have reached such a conclusion. In that case it is obvious, although it is not set out in their decision, that they must have made some error of law.

So that is the basis on which we have to approach the decision. They start off their decision by setting out the facts, in the course of which it is right to say they did make a mistake. They said that it was not disputed that the Applicant was dismissed by the Respondents. They should have said, of course, that the date was not disputed, but the Respondents did dispute that they had dismissed her. They go on to say, quite rightly, in paragraph 3:

"We now turn to a consideration of the circumstances in which this second application came to be presented as it is clear that the last date on which there could have been an act complained of namely the dismissal of the Applicant on the 30 April 1994 came to be presented considerably out of time as the last date for presentation within the three month period would appear to be 29 July 1994. On this point the Applicant presented an affidavit. She said in this affidavit and in the evidence which she gave to the Tribunal that when she was first dismissed she did not consider that she had a claim of sex discrimination although she was aware from certain conversations which she had had with Mr de Bussy the manager of the Respondent's organisation that he was gay. She now claimed only to have discovered later that somebody else was doing her job and that that person was gay and that she therefore had later come to the conclusion that the real reason for her dismissal was that Mr de Bussy wished to surround himself with gay men with whom he might or might not have or had had an association. The question of whether such conduct if established and the dismissal of a woman for that reason could amount to sex discrimination is not a matter which is before us today and it is a matter upon which we make no comment."

Then they go a little more into the facts. They first of all say that she became aware of matters which she thought would support her case because of gossip which occurred after a Christmas party in 1994, when it was said that indiscreet remarks had been made by a Mr Meslem, who it appeared presently had replaced her as hotel manager. They say in paragraph 4:

"In cross-examination she said that she had known that Mr de Bussy was gay in view of the remarks which he had made at various times [that was during her employment]. She agreed also that on her resignation dismissal at the end of April 1994 she had claimed the sum of £35,000 and that it was only in December 1994 that she had become aware that the limit of the compensation which she could receive for a claim of unfair dismissal was £11,000."

And then they come to their vital findings of fact:

"She had known that there was a time limit for a claim of sex discrimination. She agreed that she had known in May that Mr Meslem had been employed and also that in September 1994 she had known that Mr Meslem was the manager."

They refer to her illness which they say did not affect the matter in any particular way. They go on:

"She also agreed that she had known Mr Meslem was gay in May 1994 and had known by September that her view was that Mr Meslem was doing her job."

Mr de Bussy had given evidence denying this gossip about what he had said at a Christmas party, and they say in paragraph 5:

"On this evidence we have to decide as it is clear that the application was not presented within the period of three months beginning with when the act complained of was done whether in all the circumstances we consider that it is just and equitable to allow this claim to go forward out of time. "

They say they were referred to authorities and they say in paragraphs 6 and 7:

"We were also referred to Hutchinson v Westward Television Ltd (1977) ICR 279 where an Industrial Tribunal declined to extend the period where the application was some 14 days out of time and were upheld by the Employment Appeal Tribunal. The case really proceeded on a different point namely the construction of the words 'in all the circumstances of the case' where the Employment Appeal Tribunal held that this did not require the Tribunal to hear the merits of the claim but only to consider in the course of exercising its discretion the general circumstances surrounding the late presentation of the application and to decide in the light of those circumstances whether an extension of time was just and equitable. The Employment Appeal Tribunal also emphasised that the discretion was wide and if it appeared that the Tribunal had taken properly into account all the relevant facts which it ought to have taken into account then the Employment Appeal Tribunal could not interfere with the exercise of the Tribunal's discretion.

We have come to the conclusion in this case that we should not exercise our discretion. It seemed to us that the primary facts upon which the Applicant could have founded a claim of sex discrimination were known to the Applicant at least by September 1994 when she knew or had reasonable grounds for suspecting that Mr Meslem was doing her job that Mr Meslem was gay and that it might have been an ulterior motive of Mr de Bussy to dismiss her in order to give her position to a gay man."

And they refer to some particulars. They say:

"Our view is and we so find that the Applicant was aware of circumstances which could possibly lead to a claim that she had been the subject of sex discrimination by September 1994. Had a fresh application been presented then it is probable that the Tribunal would have extended the time on the grounds that it could be satisfied that the Applicant had a lack of knowledge of the particular circumstances which might give rise to a claim of sex discrimination until sometime in September. ... Our view is that the Applicant has left it too late. We were also influenced by the fact that it emerged that her claim had in fact been for £35,000 presumably based on the fact that she was earning £24,000 per annum gross and that consequently her loss of wages could be over the limit on compensation for unfair dismissal. There is no limit on the amount which can be awarded on a claim of sex discrimination the Tribunal only being bound by the ordinary principles regarding awards of compensation. We find that the Applicant's attitude towards this case has been coloured by the fact that it was only in December that she found out that if she was successful in her claim of unfair dismissal she might be inadequately compensated and consequently decided then to present her claim of sex discrimination as well in order if she was successful to secure adequate compensation."

Now what complaints are made of this decision? We look, of course, at the Notice of Appeal and the grounds are set out there succinctly:

"6 (b) the test which the Industrial Tribunal appears to have applied was to decide the earliest date at which the Applicant knew of 'circumstances which could possibly lead to a claim' ... alternatively that she 'might' have a claim ... alternatively that she 'could' have a claim.  "

Then, says the Appellant:

(c) the test applied was wrong in law and/or a misdirection in that it:

(1) imposes an unrealistically high burden on an Applicant. An Applicant should not be required to bring a claim when she is only aware of the 'possibility' of a claim: she should only be required to bring a claim when she has knowledge of circumstances grounding a reasonable belief that she has a claim with reasonable prospects of success (there being no clear authority as to the burden in this regard, the Tribunal should have approached the test from first principles);

(2) is undesirable as a matter of policy: the test imposed would encourage prospective applicants to bring claims, however objectively unmeritorious, as soon as they are aware of circumstances grounding the possibility of a claim, lest they be time barred (as here)."

And so the Tribunal applied the wrong test and should have applied the right test; in other words a "prima face" case, reasonable grounds for bringing proceedings, the sort of test which in ordinary litigation, for example, if a person has had an accident and wishes to sue for damages for negligence, the Legal Aid authorities would apply. We must look to see whether there are reasonable grounds for asserting a claim, reasonable prospects of success, or as the case may be, reasonable grounds for defending a claim. And that, says the Appellant, through her Counsel, is the test which the Tribunal should have applied to this matter.

One must say that the Tribunal could have approached the matter differently, could have considered other matters in this case. It was the Appellant's case that she had been treated in ways which certainly would give rise, in the minds of many people, to a suspicion that she was being treated adversely, discriminated against on the ground of her sex.

Among other things she said, in further and better particulars given by her, that Mr de Bussy, from 1993 onwards, had been making remarks to her of an unmistakable tendency. He had been saying that he preferred to employ gay men rather than women; that women were unreliable; that women had periods; that women had children.

These offensive and objectionable remarks had been made to her over a period of more than a year apparently. He went on to say that his friend was gay and had a policy of only recruiting gay men because they would not have periods and would not have babies. She said, "I did not take these remarks seriously", but what she does say is that, although she did not take the remarks seriously, she was treated very badly and apparently inexplicably, which led to her resignation. In various ways and for no apparent reason she was treated badly.

She did ask for explanations and was given no satisfactory explanations for the way that she was being treated. It might well be (and, of course, we are not inventing reasons for the Tribunal) that the Tribunal might have looked into those matters and might well have said, "We think that by the time she was dismissed there were grounds for her to think that she was being discriminated against on the basis of her sex". They did not do that and therefore we say no more about that, but certainly it is very remarkable that she did not, shortly after dismissal at any rate, think that perhaps this was a piece of discrimination against her because she was a woman and because her employer, the General Manager, had so repeatedly and unpleasantly insisted that he thought that men were preferable to women in these respects. She said she did not take that seriously and the Tribunal, no doubt, thought it right not to go into that.

Then looking at the matter as the Tribunal looked at it, they first of all adverted, of course, to the fact that she was seriously out of time and if a person is seriously out of time, clearly that person will be expected to show proper grounds on which it can truthfully be said that it is just and equitable to set aside such an important time limit as Parliament has provided. They were content to put it in a way very favourable to her; that if she did not have grounds for thinking she might proceed, then they would assist her in this way. They could have said, of course, and it might be very hard to criticise them, as Mr Bishop very fairly concedes, "When there has been such a serious delay, even if she did not know that she had grounds within the three months, or within a time thereafter, nonetheless we are not disposed to grant an application". They did not.

They looked at it to see when they first thought that it would be reasonable for her to proceed and they found that in September 1994 she had a basis on which she might well have proceeded; that she might have issued proceedings then; that she could have thought that she was being discriminated against then. That is complained of, "might" or "may have" grounds for proceeding is not enough, says Mr Bishop. If they were proceeding in this way and looking at her position (and of course, they were looking at her position, not the employer's position) then they should have looked for the time when she had reasonable grounds for bringing proceedings; in other words applying the ordinary test of ordinary litigation and saying "Well, she ought not to bring proceedings until she has reasonable grounds for doing so". But one asks, "Can that really be so? Is that really a test on which we should insist?". We were referred to the important case which the Tribunal themselves referred to, of Hutchinson v Westward Television Ltd.(1977) ICR 279. That was a case in which the Applicant was only a fortnight late. Our Tribunal, under the chairmanship of Phillips J, looked into the matter and said at page 282 B.

"The second matter to which we would draw attention is that this is a new, or relatively new, statute. The formula provided by section 76 (5) by which an application to extend time has to be judged is a new one, and it very sensibly gives the industrial tribunal a wide discretion to do what it thinks is just and equitable in the circumstances. Those are very wide words. They entitle the industrial tribunal to take into account anything which it judges to be relevant. We doubt whether industrial tribunals will get much assistance in exercising that jurisdiction by being referred to cases decided on other tests under other statutes. We do not go so far as to say that they are always and in all circumstances irrelevant, but we would deprecate these very simple, wide words becoming encrusted by the barnacles of authority. The industrial tribunal is to do what it thinks is fair in the circumstances."

Now we think that what is being said by Mr Bishop in this case is just such an attempt to impose particular criteria on the Tribunal. When considering the time when the Applicant came to be in a position to issue proceedings, the Tribunal should say, "Well suspicion is not enough: 'might be successful'; 'might be able to issue proceedings'; 'may have some success'," is not enough. The Tribunal must look for a prima facie case in which the Applicant must be able to say to herself, "I have reasonable grounds for proceeding. I have reasonable prospects of success". That, it seems to us, is doing exactly what our Tribunal, under the chairmanship of Phillips J, said we should not do.

Among other things, as we have said, we are quite sure that the Tribunal are entitled, if they think it right to do, to consider the position of the Respondents to such a claim. Here they found it unnecessary to do so, but if they had done so the Respondents might say, "Well we are in difficulties as a result of this lateness". Certainly, the Tribunal should not feel debarred from looking into the position of the Respondents. Fairness is fairness to both sides, that goes without saying. Again, it must be right for tribunals to be able to say to themselves that, "The delay in this case is so serious in all the circumstances that we are not going to go into the question at all of when the Applicant first thought that she had either some prospects or reasonable prospects, or whatever it may be. We think that the delay in the case, whether it is 14 days or 14 months, or whatever it may be, is something which we are simply not prepared to countenance".

It must be "just and equitable" to set aside the statutory time limit and, Parliament having imposed no such limitation as is suggested by Mr Bishop, we think it quite wrong that we should gloss the statute to impose such a limitation. We think that the Tribunal are quite entitled to look at, and should look at, all the circumstances that seem to them to be material, or at any rate enough of them to decide the case.

Here they looked only at the Applicant's case and they thought that that was not enough to persuade them to exercise their jurisdiction. If they had thought that it was enough they would have had to go on, of course, and look at the Respondent's case and all the other material circumstances of the case. They did not go on with that and in the circumstances they were quite justified in not doing so, but one final point does occur to us. That is, that if Parliament had intended such a thing as Mr Bishop suggests, why on earth should they have specifically enacted Section 74 of the Sex Discrimination Act and the Sex Discrimination (Questions and Replies) Order 1975? It seems to us that that was specifically envisaging that if an Applicant merely suspected, or thought it might possibly be the case, that he or she had been discriminated against, whether on the grounds of gender or otherwise, he or she could bring proceedings, because if it is a suspicion of sex discrimination, then under the Questions and Replies Order, that person is given the right to make use of a standard form and what the standard form says, in the name of the applicant, is "I consider that you may have discriminated against me, contrary to the Sex Discrimination Act. I consider that this treatment may have been unlawful because" and so on. "Do you accept that your treatment of me was unlawful" and so on. "If not, why not?". "For what reason did I receive the treatment accorded to me and how far did my sex or marital status affect your treatment of me?". Now it seems to us that in any other sphere of litigation that would be called "a fishing expedition" (if I may use the colloquialism) but Parliament has expressly enacted that that is what is to happen.

Clearly, Parliament intended that the Applicant should proceed timeously if he or she believes, believes whether on good grounds or not, that such a thing may have happened and having started proceedings, may ask questions to bolster his case. If it presently emerges that there is nothing in it, well and good. Then the Applicant can discontinue and it is most unlikely there will be an award of costs in those circumstances. It may be that the Applicant will still not be satisfied and will go to the Tribunal and the Tribunal may or may not be satisfied of these matters.

So we think that the proposed grounds of appeal are not made out. We think that the Tribunal was perfectly entitled to proceed in the way they did and if they had gone further than they did, might very well and, we think, indeed, would probably have found further grounds supporting their decision. They did not think it necessary to do so. We are certainly not prepared, as a matter of law, to say that there is any error in this exercise of discretion and, as we have said, the question whether we ourselves, or whether another Tribunal, might have reached a different decision, is entirely beside the point. The appeal must be dismissed.