United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANTHONY BILMES Solicitor Messrs Fisher & Bilmes Acre House 11-15 William Road London NW1 3ER


 


MR JUSTICE LINDSAY: We have before us by way of preliminary hearing an appeal by Miss M.S. Turner in the matter Turner against Reed Personnel Services Plc. In this matter there was a decision of the Industrial Tribunal with Extended Reasons promulgated on 21 May 1997. Miss Turner was the Applicant below and she was largely successful.

The majority decision of the Tribunal was that Miss Turner had been constructively dismissed and that the dismissal was unfair and that she had not contributed to it. She succeeded also in a contractual claim. It was held that she had been wrongfully dismissed in that Reed Personnel Services Plc had failed to give her 12 weeks notice, but, coming on to aspects more relevant to this appeal, it was held that Miss Turner was unlawfully discriminated against on ground of sex in the way that her pregnancy and maternity leave was treated, but that the Applicant did not bring her claim within the three months laid down by Section 76(1) of the Sex Discrimination Act 1975 and that it would not be just and equitable to admit that claim out of time.

The minority decision of the Tribunal was that the Applicant was not unlawfully discriminated against on the grounds of sex in the way that her pregnancy and maternity leave were treated and so, running the two together, the unanimous decision of the Tribunal was that the Applicant was not unlawfully discriminated against on the ground of sex by the failure to offer her training on her return from maternity leave and that the Applicant's pregnancy played no part in the termination of the Applicant's employment. Those parts of her claim were therefore dismissed.

Miss Turner's IT1 form of application had been lodged on 7 August 1995. Under Section 76(1), referred to by the Industrial Tribunal, a prospective applicant is given three months from the last act complained of in the general run of cases and so, Miss Turner, prima facie, needed to find some events to rely on, not earlier than 6 May 1995. But there is, of course, an unfettered jurisdiction under Section 76(5) to extend time where it is just and equitable to do so in the light of all the circumstances of the case.

The IT1, to which we have referred, says this:

"Since my return from maternity leave on 3/1/95, I have been the victim of a conspiracy to oust me by four members of my branch staff together with one previous member of staff. My direct superior, (my Regional Director) offered me no support during this time [in other words, the period since 3 January 1995]. In fact it would appear she has encouraged it by undermining my authority and failing to take disciplinary action against these members of staff. I have documented various conversations and meetings I have had with her and I am of the opinion that she also wanted me removed."

So there is no hint there of anything being complained of before 3 January 1995. It is not, therefore, a complaint about any treatment before or during maternity leave. It is only "since my return from maternity leave" that the complaint runs.

The Notice of Appeal that we have is only concerned with the failure to extend time under Section 76(5). The grounds of appeal, which are supported by Mr Bilmes who also appeared below, raises the issue that the Tribunal erred in law in failing to exercise its discretion under Section 76(5) so as to extend the Appellant's permitted time. It is stated that no reasonable Tribunal seized of the facts could have come to any conclusion other than that it was just and equitable to exercise its discretion in the Appellant's favour. Then, in paragraph 3:

"Further or in the alternative the Tribunal erred in law or reached a decision that was perverse in that it failed to give proper weight to the facts that it found namely that the Appellant was discriminated against on the grounds of her pregnancy and that it was as a direct consequence of that pregnancy and subsequent childbirth that she was unable to bring her complaint within the time limit specified in section 76(1) of the Act and that to fail to afford her the benefit of the discretion provided for in section 76(5) of the Act would itself amount to discrimination against her [a point which is also mentioned in Mr Bilmes' Skeleton]."

What did the Industrial Tribunal make of the extension of time application? There is no holding here of any sustained illness on Miss Turner's part; there is no indication of a kind that one sometimes sees that, at one stage or another she had been given bad advice and had delayed; there is no reference to deal with another kind of case one sees to papers having been lost or persons having died or witnesses having become impossible to find. None of those not uncommon reasons for not starting her complaint sooner are here made plain in the case.

The only sex discrimination suffered is found by the Industrial Tribunal to have been up to and during the maternity leave, in other words, not later than January 1995. That was dealt with where the Industrial Tribunal said:

"A majority of the Tribunal does, however, find that the Applicant was unlawfully discriminated against on ground of sex by the actions of Mrs Thomson leading up to and during the Applicant's maternity leave. The majority is satisfied that Mrs Thomson put pressure on the Applicant to ensure that she did not take unnecessary time off work, she was reluctant to confirm to the Applicant that she could return to the Croydon branch after her maternity leave and by thoughtless remarks gave the Applicant the impression that the Applicant would not return after her maternity leave, thus leaving the Applicant afraid that she might lose her job and her income at a time when she would need it most. The majority finds that Mrs Thomson's remarks in the 'South Circular' to be unacceptable and has compared them to the remarks which were made about other pregnant women, which were much more innocuous. The majority found that this was cumulatively less favourable treatment. The majority of the Tribunal looked for an explanation for this behaviour and could find none other than the Applicant was pregnant. Applying the 'but for' test suggested in the James case the majority of the Tribunal can find no explanation other than 'but for' her pregnancy the Applicant would not have been treated the way she was. The majority therefore found that the Applicant had been unlawfully discriminated against on ground of sex contrary to section 6(2)(b) read with section 1(1) of the 1975 [Act] in that she had been subjected to a detriment because she was pregnant."

Since her IT1 complained of only behaviour after 3 January 1995 the Industrial Tribunal could properly have rejected this form of claim, in any event, as not having been complained of at all, let alone not being complained of in time. But, assuming in Miss Turner's favour that that provides no bar to her complaint, how did the Industrial Tribunal approach the question of an extension of time? As to that, they said this:

"However, the majority noted that the last unlawful act of discrimination took place no later than December, 1994, more than seven months before the Applicant resigned. The Applicant said that she did not complain of the treatment, because she did not want to lose her job, but the majority was satisfied that the Applicant was the type of person to have taken steps about the treatment if she chose. She did not do so and the majority of the Tribunal finds that the Applicant's claim was presented outside the three months' time limit laid down by section 76(1) of the 1975 Act nor would it be just and equitable in all the circumstances after so long a delay to admit the claim out of time under its discretion under section 76(5) of the 1975 Act. The Tribunal therefore has no jurisdiction to hear that part of the Applicant's claim and that part of her claim is dismissed."

So the only reason given, as it seems, for an extension of time, namely that she had delayed because she thought that complaint might jeopardise her job, was, in fact, disbelieved by the majority. The majority had been satisfied that the Applicant was the type of person to have taken steps to complain, if, indeed, she had felt that there was something worth complaining about. So she is in a difficulty, and Mr Bilmes is in a difficulty, in that the only reason which appears to have been given was, in fact, disbelieved. Whether or not a witness is to be believed or disbelieved is essentially a matter to be left to the Industrial Tribunal that hears that witness. Mr Bilmes identifies no feature, in our judgment, which was left out of account that should have been taken into account and no feature that was taken into account that should not have been.

Mr Bilmes argues that the very fact that the discretion was not granted or exercised in Miss Turner's favour is, itself, a form of discrimination. But Parliament has stipulated the three month period without excepting mothers or pregnant women or those sexually discriminated against. It is a flat period that is applied to all cases and we cannot see that this ground advanced by Mr Bilmes has any prospect of success. We do not see that it can be described as irrational or perverse for the Industrial Tribunal to have done as it did.

We have emphasised to Mr Bilmes that an error of law has here to be found and, doing the best that we can, we have been unable to discern any error of law in the exercise of a discretion, which is essentially a discretion best left to the Industrial Tribunal. Where that discretion depends in part, as it did here, on the credibility of a witness, more particularly is that best left to the Industrial Tribunal that has the advantage of hearing and seeing the witness.

We are unable to find any error of law and accordingly, we dismiss the appeal.