United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr J Morgan Representative Employment Law Unit 2nd Floor 29 London Road Sevenoaks, Kent TN13 1AR


 


JUDGE PETER CLARK: On 30 September 1997 the Appellant, Mr Keegan was dismissed by the Respondent, employer London Electricity plc by whom he had been employed for some 29 years following an incident on 23 September 1997 when he indecently exposed himself to a female member of staff, something he later admitted when interviewed about the allegation.

On 26 January 1998, he presented an originating application to the London North Industrial Tribunal alleging unfair dismissal. In the particulars of that complaint, he said:

I was dismissed by my employer following an incident which I have admitted.

At the time I was under great stress and experiencing mental problems. This was known by my employer. Also, my employer had failed to investigate a previous harassment complaint. This had a direct bearing on my actions.

In taking the decision to dismiss my employer failed to consider all the circumstances and my mitigating evidence.

In answer to the claim, which was resisted, the Respondent said amongst other things at paragraph 17 of their Notice of Appearance:

The applicant states in his complaint that his employer had failed to investigate a previous harassment complaint which had a direct bearing on his actions. The respondents wish to apply to the tribunal for further and better particulars as the applicant has not provided any details of the complaint he refers to.

and then they set out certain questions which they required answering.

On the 1 April 1998, the matter came before a Tribunal sitting at London North consisting of a Chairman, Mrs Don, sitting alone. In a decision dated 21 April 1998, the Chairman decided on a preliminary issue that the Appellant's complaint of unfair dismissal be allowed to proceed, notwithstanding that the primary limitation period of three months had expired, because it was not reasonably practicable for him to present the complaint within time. Her specific finding was that the Appellant's mental stated prevented him from presenting his complaint within the ordinary time limit.

On 23 April 1998, the Appellant submitted a proposed amended form IT1. That document added two quite new causes of action.

One was of sex discrimination arising out of an allegation that for a long period of time he had been sexually harassed by a male colleague, whom he names, and secondly a claim of breach of contract on the basis that the Respondent had breached an implied term of his employment contract to take reasonable care of his health and safety.

It seems that on about the 20th May 1998, a Chairman granted leave for the originating application to be amended in that way. It is accepted by Mr Morgan who appears on behalf of the Appellant today, that is so far as the two new causes of action were concerned. The date of those complaints was the date on which leave to amend was granted, that was on or about the 20 May. It follows that both those new complaints were made outside the ordinary three month time limit.

A further hearing took place before a Tribunal chaired by Mr G Flint on 17 June 1998. It appears that the purpose of that hearing was to decide whether or not the two new causes of action should be permitted to proceed, notwithstanding that they were made outside the ordinary time limit. On that occasion the Appellant was represented by Mr John Bowers QC, experienced Employment law Counsel. The Tribunal decided that it was not just an equitable to extend time for the new sex discrimination complaint and further that it was reasonably practicable for the complaint of breach of contract to have been presented earlier than the 20 May, alternatively the 23 April when the application to amend was first made. It is against those findings that this appeal is brought.

Mr Morgan's principle submission in the appeal is that the Tribunal reached a perverse conclusion in that it failed to take into account the fact that the Respondent had applied for further and better particulars of the allegation of harassment contained in the originating application. We raised with Mr Morgan whether this was a point which was taken below by Mr Bowers at the hearing on 17 June, he accepted that it was not and indeed, at his request, we have obtained confirmation of that fact from Miss Vickers who appeared on behalf of the Respondent before the Tribunal on 17 June.

In these circumstances, bearing in mind, the well established line of authority in this Tribunal beginning with Kumchyk v Derby City Council [1978] ICR 1116, we have to consider whether or not there are exceptional grounds for permitting a new point to be taken for the first time on appeal. Having considered the matter, we are unable to find that this is such an exceptional case. It follows that since that is the sole basis on which this appeal is mounted, there is no arguable case to proceed to a full hearing and accordingly the appeal must be dismissed at this stage.