United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MISS R DOWNING (Of Counsel) The Solicitor The Post Office Impact House 2 Edridge Road Croydon CR9 1PJ
For the Respondent	NO APPEARANCE BY OR ON BEHALF OF RESPONDENT


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against a decision of an Industrial Tribunal Chairman sitting alone following a hearing a Bristol on 28 May 1996. The parties to the proceedings were a Mr Martin, who was a former employee of the Respondents, The Post Office. We shall refer to them as the "employee" and the "employers" respectively.

The decision given by the Chairman was that the Applicant was entitled to proceed with his claims for sex discrimination and victimisation. He also made an order requiring the Applicant to give further and better particulars of the allegation of sex discrimination and we understand that that order has been complied with in the sense that further and better particulars have been supplied and The Post Office will in due time consider whether that is full compliance with the order.

The background facts necessary to this appeal may be shortly stated. The employee was employed by The Post Office on 31 October 1994 as a telephone answering clerk, working principally on the night shift. In January 1995 two women on the day shift were appointed as team leaders. On 13 March 1995 another woman was appointed to the night team leadership. It was that appointment which led him to believe that there was an element of sex discrimination. On the night of 12 and 13 November 1995 an incident occurred. The following day the employee made a complaint to the Personnel Manager, which was principally a complaint of sex discrimination, although it also included a complaint that he was being discriminated against on the grounds of his sexual orientation. He was duly interviewed in relation to those allegations. He was subsequently interviewed about the incident which took place and he was dismissed with effect from 6 January and he also was notified that his claim of sex discrimination had been rejected.

On 5 April 1996 the Applicant presented an application to the Tribunal of sex discrimination and victimisation. There is no dispute that the victimisation claim is within time because the act complained of was the dismissal, and the time limit is three months. This was presented within the three month time period. The protected act was the making of the complaint of sex discrimination and time runs from the date of the act complained of and not from the doing of the protected act.

However, it would appear that the allegations of sex discrimination were matters which had taken place more than three months before the complaint was presented to the Industrial Tribunal. The Chairman was concerned in those circumstances to determine whether or not the Tribunal should accept jurisdiction over whatever was being complained about by way of sex discrimination.

The IT1 which sets out the complaint in this case refers in paragraph 9 to two particular dates - 13 March 1995, the date when the woman was appointed to be the night shift team leader and 6 January 1996, the date when the dismissal took effect. In paragraph 11 the employee gave details of his complaint. The first paragraph reads as follows:

"I sought an interview with Mr Mike Race, Personnel Administration Manager, on Monday 13 November 1995. In the course of this, I alleged sex discrimination in the Telebusiness Centre by its manager, Ms Jacqueline Bartlett, and her deputy, Mrs May Thompson. On 6 January 1996, I was summarily dismissed."

He then says that at the beginning of 1995, the two women had taken over as team leaders during the day shift. He makes complaints about them, and he makes complaints about the fact that he appeared not to have been considered at all for the appointment of nightshift team leader, despite the fact that he is a Cambridge graduate with teaching experience, and had worked for more night shifts than any other member of staff. He then says at the end of his complaint:

"It is my contention that I was discriminated against on the grounds of my sex, and dismissed on a pretext after having made this assertion."

Having reviewed the background facts to which I have referred, the Industrial Tribunal Chairman then turned to the matters in issue. He concluded in paragraph 5 as follows:

"...However, it seems to me clear on reading the Originating Application and, in particular, the first part of paragraph 11 that the allegations [that is the allegations of sex discrimination] are by reference to the meeting on 13 November in which it is common ground that at least the allegation of sexual orientation was made. Indeed, in the subsequent letter of 5 December there is a fairly detailed allegation which, I am clear, does amount to a complaint of sex discrimination. The reason why the incident in March 1995 was referred to in the Originating Application was as part of a pattern of actions by the respondents which culminated in the events of 13 November."

The Tribunal Chairman then directed his attention to the time limit point. He says in paragraph 6:

"... he [the employee] still has to explain why, if the last straw occurred on 12 November, it was not until 5 April 1996 that he brought his proceedings. As for the period from 13 November to 4 January, his explanation is that he was awaiting the response of the respondents and I think that is perfectly understandable. It seems to me that it was reasonable for the applicant to have delayed at least until then. Even if strictly this means that some of these allegations are out of time it seems to me just and equitable that the Tribunal should consider them and the time should be extended accordingly."

He then looks at the period from 6 January until the date of the complaint. He concludes in paragraph 7:

"...that it is just and equitable to allow the applicant to proceed with both of his allegations [that is victimisation and sex discrimination]. It seems to me that the victimisation claim is mixed up with the sex discrimination claim and that it would not be right to try and separate the two. I appreciate that this means that the respondents will have to call evidence not only as to their reasons for dismissing him and the way in which they considered his allegation but also as to the substance of that matter but I think it would be unjust to proceed with the one allegation without proceeding with the other. Therefore, insofar as it is necessary, I give leave to the applicant to extend his time in respect of the allegations which are made in his Originating Application."

It seems to us with great respect to Miss Downing who has presented the arguments in favour of The Post Office on their appeal against this decision, that the decision of the Industrial Tribunal Chairman cannot be faulted. Contrary to her submission, it seems to us that the complainant was, as the Chairman found, making an allegation of sex discrimination other than the complaint of victimisation which is merely one form of it. He had made a complaint of sex discrimination by reference to the matters which he had raised at the 13 November 1995 interview, as was confirmed in a memorandum of 16 November 1995 from the Personnel Officer concerned, indicating the nature of the complaints.

It was after he had made that allegation of sex discrimination or those allegations of sex discrimination, that he was dismissed. Part of his complaints relates to the promotion of the woman in March 1995 and part relates to, what one might call rather more general allegations of discrimination, which he has been required to particularise.

Accordingly, it seems to us to be perfectly clear in this case that the Applicant did not need to seek leave from the Industrial Tribunal to make a complaint of sex discrimination because one such was contained within his existing IT1. Secondly, we are of the view that it plainly was important for the Industrial Tribunal to decide whether it would be just and equitable to extend the time for dealing with the sex discrimination complaint. The reasoning process which caused him to exercise his discretion is set out in paragraph 7 to which we have referred: essentially it is this: that the two contentions which are being made, that is victimisation and sex discrimination more generally, cannot be separated one from the other, they are mixed up to such an extent that they cannot properly be separated out. We agree with that analysis.

If the claim for victimisation alone had been allowed to go ahead, the Tribunal would have been concerned to examine the incident which had given rise to the alleged decision to dismiss on the grounds of misconduct, but would also have been required to carry out an investigation to a greater or lesser extent, as they felt necessary, to the merits of the sex discrimination allegation, that is, to the doing of the protected act. The reason why they would be involved in the merits of his complaint of sex discrimination was that if the complaint of sex discrimination was manifestly absurdly made, then it would be unlikely that they would conclude that any employer would have been motivated to dismiss by reason of the making of such a hopeless complaint. If, on the other hand, a serious complaint had been made which had merit, then that might well have influenced an employer in seeking to dismiss the employee, ostensibly for the reason of misconduct.

Thus, as it seems to us, the claim for victimisation was inextricably linked with the claim in relation to the protected act. The doing of the protected act was the making of the complaint of sex discrimination and the complaint of sex discrimination was not confined to the appointment of the team leader on 13 March but was more general, and the employee has been required, quite properly, to give proper particulars of anything that he is relying upon other than 13 March promotion.

In these circumstances we are not only persuaded that the Tribunal has not erred, but we are sure that the Industrial Tribunal Chairman has arrived at a decision which was a wise one. Trying to separate out matters in the way we have been invited to do by allowing this appeal, would be calculated to cause difficulty in the way in which the Tribunal will reach their adjudication in this matter. Furthermore, it seems to us that although the employers unquestionnably are going to have to call more evidence than they otherwise might have done, we are not persuaded that they would have, nor have wished to have led some evidence about the complaint of sex discrimination, if they had only been dealing with the victimisation complaint. We feel sure that in order to persuade a Tribunal that the doing of the protected act played no part in the decision to dismiss, they would have wished to argue if it be right, that the complaints made of discrimination on the grounds of sex were so obviously unsustainable, that no reasonable employer could possibly have taken them into account in deciding to dismiss.

It will be necessary for the Tribunal to consider the question of the drawing of inferences and no doubt the strength or otherwise of the complaint of sex discrimination will or might play some part, in whether inferences should or should not be drawn. Accordingly we dismiss this appeal. We regard the decision as correct.