At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
MRS T A MARSLAND
MR T C THOMAS CBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | THE APPELLANT IN PERSON |
For the Respondents | MR J PALMER (of Counsel) Messrs Kennedys Solicitors Longbow House 14-20 Chiswell Street London EC1Y 4TY |
JUDGE PETER CLARK: This is an appeal by Ms Polak against a decision of the Bristol Regional Chairman, Mr M E Woods, sitting alone at the Bristol Industrial Tribunal on 27th March 1997, to dismiss her complaint of sex and race discrimination and harassment brought against her former employer, British Railways Board, on the grounds that it was time-barred. Extended reasons for that decision are dated 7th April 1997.
By way of background, the appellant came to this country from her native Poland in 1972. She then already had five years experience working on the Polish Railway system. She commenced employment with the respondent on 3rd February 1975 and remained in that employment until her dismissal by way of ill-health retirement effective on 24th December 1994. She held a responsible position as Assistant New Works Engineer in the respondent's Infrastructure Services based at Swindon.
Between 1985 and 1989 she pursued a grievance internally, complaining of race and gender discrimination. In fact her complaints, particularly in relation to non-promotion and non-membership of the pension scheme go back as far as 1980, and form part of her substantive complaint of unlawful discrimination.
On 10th May 1993 she commenced a period of sick absence which continued until her eventual dismissal.
Her medical condition was summarised by Dr Short, the respondent's medical adviser, on 16th December 1994 in these terms:
"Chronic Anxiety/Depression with Paranoid thoughts and behaviour - more and more unstable. Under long term psychiatric care. A long-standing condition, in spite of treatment she has only got worse.
Unfit and unsafe all railway work. I believe she is unfit all work."
She accept that opinion as being correct at the time. She remains on medication for depression to this day.
During 1994 she pursued an internal grievance, complaining of race and gender discrimination on the part of the respondent and its management which came before Zöe Thompson, Personnel Director of Anglia Railways. We have seen correspondence written by the appellant up to and following her dismissal. She was plainly convinced that there was a conspiracy against her. She now believes that Mr Woods has joined that conspiracy.
She did not present her Originating Application to the Industrial Tribunal until 12th February 1997. It was well out of time. The Chairman considered whether it would be just and equitable to extend time under s. 76(5) of the Sex Discrimination Act 1975 and s.68(6) of the Race Relations Act 1976; he decided for the reasons which he gave and in the exercise of his wide discretion that it would not and he dismissed the complaint.
The basis of the appellant's appeal against that decision is that the Chairman so misconducted himself that he demonstrated bias against her. She seeks an order from this Appeal Tribunal reversing his decision, and allowing her complaint to proceed on its merits.
We should deal first with the suggestion that the Chairman ought not to have sat alone to hear this limitation issue. We are quite satisfied that he had power to do so by virtue of a combination of s.4(6) of the Industrial Tribunals Act 1996; Rules 6(1) and 13(8) of the Industrial Tribunal Rules of Procedure 1993 and the decision of this Appeal Tribunal in Tsangacos v Amalgamated Chemicals [1997] IRLR 4.
The thrust of the appeal is an accusation by the appellant that the Chairman colluded with the respondent, and dismissed her complaint in order to favour the respondent. That is a serious allegation, for which there is no support at all. The only instance relied on by the appellant is the Chairman's reference in his reasons to a letter from a Mr Carr dated 28th February 1995 which she says could only have come from the respondent outside the confines of the tribunal proceedings. In fact it formed part of the respondent's bundle of documents before the tribunal.
She further complains that she was not given a proper hearing. She says that the Chairman refused to receive her documentation. We accept the evidence of Mr Green, Counsel for the respondent below, contained in an affidavit sworn on 2nd December 1997 that the Chairman indicated that the appellant was free to refer to anything in her bundles, of which there were eight, when giving her evidence. She complains that her answers to questions were restricted to Yes or No. Again, we accept that Counsel sought to bring her to the point in her answers, and any interruptions by the Chairman were designed to keep proceedings within reasonable bounds. Her style of presentation before us tended to the discursive, and we think that the same happened below.
She alleges that the Chairman was twisting the facts. He misrepresented the evidence of a neighbour, Mrs Burton, in the course of his reasons. In fact, it seems to us that he accepted Mrs Burton's evidence and as a result found that the appellant was incapable of managing her day to day affairs until Christmas 1996. But for that finding, her application for an extension of time would have been hopeless. We accept Mr Palmer's submission that that finding contraindicates any suggestion of bias on the part of the Chairman.
She contends that this is a case in which the limitation point cannot be properly adjudicated upon without consideration of the merits of her complaint. We disagree, and in so doing follow the approach of Phillips J in Hutchison v Westward TV [1977] ICR 279, a case to which the Chairman was directed.
We should deal also with the sole point which apparently concerned the Appeal Tribunal presided over by Judge Hicks QC which allowed this appeal to proceed to a full hearing at a preliminary hearing held on 17th September 1997. The question raised is whether the Chairman took into account an irrelevant factor in the exercise of his discretion when, at paragraph 10 of his reasons, he referred to the fact that the appellant applied for and obtained the benefit of a substantial lump sum payment under the pension scheme and had received a pension from and since her dismissal.
We think that that observation by the Chairman must be put in the context of the various steps which the appellant took following her dismissal, including writing to the then Secretary of State for Transport, Dr Brian MaWhinney, on 31st January 1995, setting out her grievance against the respondent; writing to the Chairman of the respondent, Sir Robert Reid on 26th January 1995, indicating that she would take her case to the Criminal Courts, or the European Court of Justice or the European Court of Human Rights. In that same letter she referred to ACAS; she had been a member of and had been represented by her trade union TSSA during the employment; later in 1995 she had visited a Citizens Advice Bureau for advice. All of these are matters which the Chairman was entitled to take into account in deciding whether or not to extend time in this case; as was he entitled to take into account the risk to the respondent that potential witnesses' memories had faded in relation to complaints stretching back as far as 1980.
We have to say that the serious allegations of misconduct made in this case, not only against the Chairman and Mr Green, Counsel for the respondent, but also against her bank manager, her former psychiatrist, Dr Sud, and members of the respondent's management, past and present, whom she was convinced were about to assassinate her, fit in with the diagnosis made by Dr Short in December 1994 and accepted by the appellant. We are satisfied that she believes them to be true; we are equally satisfied, on the material before us, that they are wholly unsubstantiated in fact.
It is in these circumstances, not without sadness that the appellant's long and valuable career has come to an end in the way that it has, that we must look dispassionately at the way in which the appeal has been put and having done so, we reject it. The appeal is dismissed.