United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M THORROWGOOD (of Counsel) Mrs K Prescott (Ref: KP/REP/MCEVOY) Messrs Rowe & Cohen Solicitors Quay House Quay Street Manchester M3 3JE
For the Respondents	MR D MELVIN (Ref: DM/LMC) (Representative) British Medical Association Legal Dept Bartree House 460 Palatine Road Northenden Manchester M22 4DJ


 


MR JUSTICE MORISON (PRESIDENT): This is an interlocutory appeal against the decision of an Industrial Tribunal that it had no jurisdiction to hear the Applicant's claims of unlawful sex and race discrimination and that that part of her application should be dismissed.

We have every sympathy with the Industrial Tribunal in this case. They had set the matter down for a hearing on a preliminary issue, but neither the Applicant nor her former Solicitors presented themselves and they were unassisted by any representation on her behalf.

As a result of the lack of assistance which they were given on the Applicant's behalf, they concluded that, as the matters of which she was complaining occurred in October, November and December 1997 and the Originating Application was presented on 20 April 1998, all those claims relating to unlawful sex or race discrimination occurred three months before the Originating Application was presented.

It was on that basis that the claims were dismissed. In fact, they were in error in arriving at that conclusion, because it is clear from the face of the IT1 that the Applicant was complaining of at least one incident in January 1998, namely 22 January 1998, which was less than three months from the date when the IT1 was presented. Accordingly, the Tribunal was required to consider that complaint which was within its jurisdiction.

The IT1 it is true, also refers to other matters which occurred in October, November and December 1997 and she relies on them both in relation to the incidents themselves, but also presumably, in support of her contention that the Tribunal should infer that the treatment of which she complains in January 1998 was motivated by race or sex.

Mr Melvin, on behalf of the Respondents, who are three doctors for whom the Applicant had been working as a receptionist, very properly accepts that the fact that the complaint relating to the January incident was not contained in a box which an Applicant is required to complete, saying when the incidents of which complaint is made occurred, does not alter the fact that she was manifestly making a complaint which was within time.

He had anticipated that the Industrial Tribunal would take as a preliminary issue the question as to whether, in fact, any incident had occurred on 22 January. It is his contention that nothing whatever occurred and that it would be possible, shortly, to prove that that was so. Because the Tribunal has erred in the way that we have indicated, it is clear that their decision cannot stand and indeed Mr Melvin would not oppose that course.

The question is, what should now happen to the case? Mr Melvin says that another Tribunal should hear and determine the preliminary issue. We do not agree. It seems to us that, as a complaint has been presented which is apparently within time, the Tribunal should hear and determine her complaint.

In the course of that hearing it may be that the Applicant will wish to rely on the earlier incidents and it will be for the Industrial Tribunal to decide, having heard all the evidence, whether it would be just and equitable to extend time in relation to those matters, if such an application was made. It would, no doubt, be influenced in the way it exercised its discretion by its finding of fact in relation to the alleged incident which was apparently within time.

It may be that if they concluded that the January incident had not occurred at all and that nothing had occurred which was within the time limit, that it would not be just and equitable to extend time. Alternatively, it may be that the evidence of the Applicant is to be preferred and that she provides the Industrial Tribunal with good sensible reasons as to why, if those earlier incidents occurred, she did not make an earlier complaint in relation to them.

Therefore, it seems to us, the appeal must be allowed and the matter remitted back to the Industrial Tribunal for them to hear and determine Mrs McEvoy's complaint of unlawful sex and race discrimination, in whatever form they think most just and expeditious.

Mr Melvin would wish, I think, to raise again with the Industrial Tribunal the desirability of a preliminary issue as to whether any incident took place on January 21. We are not in a position to make any comment on that submission, because we do not know what the evidence is to which he is referring, nor whether there has simply been an error in the date advanced by Mrs McEvoy.

There is also a complaint of constructive dismissal which she has brought, which is going to raise very much the same issues which arise on the sex and race discrimination part of the case and accordingly, the Tribunal may very well decide that the right thing to do is to get on and hear the evidence, make their findings and bring this matter to a conclusion as a result of one hearing, rather than trying to break the case up into separate parts. As I say, that is a matter for the Industrial Tribunal to determine for themselves.