United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MISS A HEWITT (of Counsel) Instructed by: Mr D Henderson The Treasury Solicitors Queen Anne's Chambers 28 Broadway London SW1H 9JS
For the Respondent	MISS E DIXON (of Counsel) Messrs Warner Goodman & Streat Solicitors Portland Chambers 66 West Street Fareham Hampshire PO16 0JR


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against a decision of an Industrial Tribunal which reads as follows:

"1. In a Decision sent to the parties on 8 May 1998 a Tribunal determined the time elements which were in issue.

2. Neither the Decision nor the Reasons given by the Tribunal are relevant to the future conduct of the case, save as to which issues are or are not within time.

3. Once the matter has been listed for the hearing of the main issues, a Chairman will consider what directions are necessary for such hearing."

That order was signed appropriately by the Chairman making it, namely Mr Jenkinson. He has essentially been in charge of this litigation which involves a complaint of unlawful sex discrimination brought by a then serving officer and she complains that she was subjected to harassment during, I think, her period of service on board the carrier H.M.S. Invincible.

It is not necessary for the purposes of this appeal to do more than just indicate how the matter has come before us. The applicant presented an IT1 to the Industrial Tribunal which clearly identifies the complaints that she was making both against the named individual as second respondent whose conduct she was complaining of, and against the Ministry of Defence, as the first respondent who were responsible, she says, for the actions of Mr Horler.

Her IT1, which was obviously drafted by Counsel, sets out her complaint of discrimination in this way at paragraph 23:

"My claim against the First Respondent [the Ministry of Defence] is that I was treated less favourably than I would have been treated if I were a man. I have suffered what I would not have suffered if I were a man contrary to the Sex Discrimination Act in that:-

(i) Because of my sex [the Second Respondent], for whose actions the First Respondent is vicariously liable, subjected me during the course of his employment to degrading and detrimental comments and behaviour.

(ii) Further the First Respondent subjected me to my detriment by exposing me to degrading and detrimental remarks and behaviour because of my sex in that:-

(a) They were aware ... because of my sex I would be subjected to degrading and detrimental remarks and

(b) ... that I was in fact suffering degrading and detrimental remarks and behaviour because of my sex and

(c) They failed to take any adequate steps to prevent me from suffering the said remarks and degrading behaviour in that:-

(i) They took no adequate steps to prevent [the second Respondent] continuing and repeating his behaviour despite complaints made by me and

(ii) They failed to respond to my informal complaints through supervisors.

(iii) Because of my sex the First Respondent failed to investigate my formal complaint properly in that they:-

(a) Did not carry out the investigation with due speed thus causing me further anxiety and distress

(b) Failed to investigate the complaint fully and to interview all the relevant witnesses ...

(c) Failed to take appropriate action against [the second Respondent]

(d) Failed to advise me appropriately on the merits of my complaint

(e) Failed to comply with Navy guidelines on prevention of harassment."

Paragraph 24 is her claim against the Second Respondent under the Sex Discrimination Act 1975.

The structure of the Act is that where is there is a complaint of sex discrimination the employer is deemed to have done anything done by a person in the course of his employment, whether or not it was done with the employer's knowledge or approval. Under s. 41(3) the employer is given the opportunity to prove that he took such steps as were reasonably practicable to prevent the employee concerned, that is the second respondent, from doing that act, or from doing in the course of his employment acts of that description.

It will be apparent from what I have said so far that the complaint which was being presented to the Industrial Tribunal fell into three categories. Firstly, a complaint against the MOD as the employer of the second respondent under s. 41(1) of the Act. Secondly, a complaint against the second respondent as the person who actually aided or did the unlawful act by reference to s.42. Thirdly, a complaint against the MOD directly for its failure to investigate properly the complaints which were presented to them by the applicant.

The complaint was presented in December 1997. The alleged harassment occurred in 1996. Complaint was made to the Navy in the beginning of 1997, and therefore there was a time issue which fell to be determined by the Industrial Tribunal. The hearing took place in March. The decision was given in May, the learned Chairman having been unwell in the meantime.

The effect of his decision was to say that the complaint against the second respondent, the named individual, was out of time and that the tribunal was not prepared to extend time to validate the application against him as it would not be just and equitable to do so. Accordingly, he dropped out of the picture. But secondly, the complaint she presented to the Navy on 3rd February 1997 about the conduct of the second respondent was by virtue of the provisions of s. 76(6)(b) a continuing act, so that effectively the application had been presented within time. In relation to two other complaints which she had made about the conduct of the second respondent to the MOD, those were out of time but they were prepared in the exercise of their discretion to extend time because it was just and equitable to do so.

Regrettably the written decision of the learned Chairman did not deal with one crucial aspect of this case. Namely, whether it would be just and equitable to permit the applicant to present her complaint against the MOD under s. 41 of the Act in relation to the sexual harassment against her by the second named respondent. Would it be just and equitable to extend time for her to make such a complaint against the MOD? That issue was raised at the hearing on 26th March 1998; was the subject of evidence and submission, but there is a complete absence of reference to that issue in the written decision.

The MOD initially apparently were of the view that the complaint under s. 41(1) against the MOD was still continuing, but asked for clarification from the Industrial Tribunal as to what its position was. On 3rd June they were told in a letter from the Industrial Tribunal that:

"... the claim against the Ministry of Defence will proceed, and that against the CPO will not, subject to any appeal."

Not satisfied with that response, the MOD made a formal application to the Industrial Tribunal which produced the decision to which I have referred on 2nd July.

Ms Dixon on behalf of the applicant says that when the Industrial Tribunal Chairman said that the claim against the MOD will proceed, it is clear in the context of the previous correspondence that they meant by that all the claims against the MOD, including the complaint that they had unlawfully sexually harassed her through the actions of a person in their employment.

We are of the view that that submission goes too far. It seems to us not as clear as it should be as to what the tribunal meant by the words "the claim against the Ministry of Defence will proceed". It could have meant those complaints which had been identified in their previous decision, which as I say relate to paragraph 23 (iii) of the IT1, possibly also 23(ii)(c). But it could also mean that the whole of the claims set out in paragraph 23 were to proceed. The decision which was given on 2nd July is with respect to the Chairman, not clear either. The tribunal did not, with respect, determine the time elements which were in issue for the reason I have already given. The decision and its reasons are relevant to the future conduct of the case, because it determines which parts of the case are in issue and which are not. It is not satisfactory that the matter should be left in doubt until after the date for the hearing of the main issues has been listed. Everybody needs to know where they stand at the earliest possible moment. That was the purpose of the hearing in March 1998 and the parties could reasonably have expected all the issues raised before the learned Chairman on that occasion to have been dealt with in the written decision which was subsequently given.

Accordingly, it seems to us that what has got to happen in this case is that the learned Chairman who heard the case in March should revisit the question which was asked of him in relation to the MOD's liability under s. 41(1), as I put it, of the Act. That is; can the applicant at the hearing give evidence as to the alleged harassment at the hands of the second respondent who is no longer in the case, and prove harassment against the MOD, in addition to seeking to prove against the MOD a complaint that they failed properly to investigate her complaints when she raised them with them.

How is this to be achieved?

It seems to us that the learned Chairman should be ordered to reconsider that question. The parties sensibly have suggested, to save costs, that it should be reconsidered on the basis of further written submissions to be made to the Industrial Tribunal, those written submissions to be exchanged. (I will consider in a moment what directions I should give in relation to that.)

There is a final point which needs to be made. This is a case, without any doubt at all, where proper directions are going to have to be given as to the way it should be heard and determined, whatever decision the learned Chairman arrives at on the question at issue. Witness statements should be exchanged in this case and obviously any questions of discovery should be properly dealt with in advance of the hearing, bundles prepared and exchanged in advance of the hearing, so that the hearing can take place in an orderly manner with both parties knowing precisely what the nature of the factual issue is before, and well before, the hearing actually occurs. That will save time in the end.

Accordingly we allow the appeal and direct that the learned Chairman gives a decision in accordance with our directions and we invite him to do so as soon as is possible. We respectfully suggest that immediately thereafter a directions hearing is convened. It may be that the parties can agree the directions which would save time and money. Then the case should be listed for as many days as is thought sensible in the light of the issues which will have to be determined.

MR JUSTICE MORISON (PRESIDENT): We have been asked for an order for costs in relation to an appeal which deals with the service of a schedule of loss. A schedule was served without prejudice. This morning Miss Hewitt indicated that she was not going to take any point on the appeal and would not pursue it. I am not inclined to make an order for costs here, because I do not think that the conduct of the MOD has strayed beyond the bounds of a tough approach into an unreasonable approach.