United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T CATO Solicitor North Lambeth Law Centre 14 Bowden Street London SE11 4DS
For the Respondents	MISS J TRACY-FORSTER (of Counsel) Messrs Eversheds Solicitors Senator House 85 Queen Victoria Street London EC4V 4JL


 


JUDGE JOHN BYRT QC: This is an appeal from a decision promulgated on 31 October 1997 of an Employment Tribunal Chairman sitting alone at London South. By his decision he held that the Applicant's complaints of sex discrimination and harassment were out of time, and further, that it was not just and equitable to allow the claims to be heard out of time. Ms Humphreys appeals that decision.

The facts are that Ms Humphreys was employed from time to time as a model at the Art Department of the Second Respondents' College. Once in 1994 or 1995, I think it is immaterial which, she stood in during the absence of a teacher, and took a class in Italian which was her subject. She has not done so since that time.

On 11 July 1996, she went to see the Head of the Languages Department with a view to enquiring whether there was a possibility of her taking on a permanent teaching job. The head of department was Mr Rowlands, the First Respondent. She alleges that, on that particular occasion, Mr Rowlands brushed unnecessarily close to her hair and shoulder and touched her hand and invited her out to a lunch or dinner so that they could discuss matters further. She relies on this incident as an instance of sexual harassment.

On 14 September 1996 she was invited to a teachers conference at the start of the next academic year. I think it is accepted by everybody that it was a surprising invitation. The invitation was said by the Second Respondents to have been sent in error but she was there. At the end of the day, I think it must have been made apparent to her that she had not been accepted as a teacher at the college for the next academic year. As a result, on the 16 September, she went to see the principal, Mr Walters. Accepting her version of how the discussion went, she complained to him that Mr Rowlands had sexually harassed her in the July. Mr Walters, so she says, said that he would speak to Mr Rowlands about it.

Not having heard anything further from Mr Walters, she wrote a letter dated the 22 November in fairly stringent terms, threatening that if she did not get satisfaction, she would be taking the complaints to an Industrial Tribunal with all the attendant publicity consequences for Morley College. Mr Walters replied that he would again speak to Mr Rowlands.

However, thereafter it seems she still received no satisfaction in that she heard nothing further from Mr Walters about any approach to Mr Rowlands. Accordingly, on 23 December she issued her Originating Application alleging sex discrimination, simpliciter. She provided no particulars but said those were to follow. On 3 February of the next year, those particulars did arrive and they form the basis of her case.

In due course the Employment Tribunal Chairman called a pre-hearing appointment to consider questions of jurisdiction. The Second Respondents concede that there was a failure to investigate and this would constitute a continuing failure in the case against them in respect of that failure and therefore questions of time would not apply in relation to the claim under S1(1)(a) of the Sex Discrimination Act, based on that failure to investigate.

So far as the main issues are concerned, the solicitors present agreed in the company of the Chairman, that there were three remaining issues for him to decide. The first concerned the allegation about what is said to have happened on 11 July. Was that claim out of time? If so, was it just and equitable to allow it to go ahead to a hearing notwithstanding. The second issue was the allegation of sex discrimination in not offering the Appellant employment on 14 September. Was that claim of time? If so, was it just and equitable to allow it to go to a hearing notwithstanding. The third issue was whether there was a continuing act of sex discrimination following from the incidence of 11 July to the decision not to offer her employment on 14 September and until the issuance of the Originating Application.

The Employment Tribunal Chairman held that there was no continuing link between the alleged incidence of 11 July and the refusal to offer her employment on 14 September or since. Furthermore, he decided that there was no acceptable reason in the documents or submissions made by the parties before him as to why the applications were as late as they were. He came to the conclusion that she had not acted with due diligence and he went on to say he found the delays for which she was responsible were compounded by the fact that it took her a further six weeks to produce the particulars of her allegations.

Mr Cato has appeared on behalf of the Appellant and has argued the appeal before us today. He submits that since there was no provision for oral evidence before the Chairman when he decided these matters, there was no evidence of any continuing link, between the harassment and the refusal to offer the Appellant work.

The second point he made was that it was not for the Tribunal Chairman sitting alone to decide issues of this sort where there was a dispute between the parties as to the facts. The most that would be appropriate for him to do on such an occasion was to judge whether there was a potential case to go forward to a full hearing of the Employment Tribunal. It was not for him to decide that there was no case. The third point Mr Cato makes is that, following the case of Ms M Fogarty v United States of America (1) and Martin Thomas (2), it was not advisable for an Employment Tribunal to decide issues of law before hearing the facts.

Miss Forster on behalf of the Respondents has submitted a contrary case. She says that all the material was before the Chairman in the form of statements and documents which would enable him to decide the issues in this case. She says that the parties invited the Chairman to come to a decision and therefore it lies ill with the Appellant to criticise the Chairman when he did come to a decision.

So far as the allegation of sexual harassment on the 11 July is concerned, she submits this was an isolated act, well out of time, and therefore the only issue to be decided by the Tribunal Chairman was whether it was just and equitable to allow that case to go ahead, notwithstanding. In fact we do not see that this particular finding of the Chairman is the subject of an appeal. However we think the allegation of sexual harassment alleged to have happened on 11 July, is a discrete incident. The only live issue here is whether it was just and equitable for the Chairman to extend time. He decided that it was not and we think his decision in this matter cannot be criticised

Miss Forster's next submission relates to the decision not to offer Ms Humphreys employment on 14 September. She says it was clear to everyone, including Ms Humphreys, that the invitation to the teachers conference was a mistake. It was therefore doubtful whether there was ever a decision taken not to appoint her. In any event, even if there was a decision, it would have been a single event and not a continuing act. She cited the case of Cast v Croydon College [1997] IRLR 14 which draws the distinction between a continuous act and a single act with continuing consequences. She submitted that a decision not to offer an appointment, would fall into the latter category. She further submitted that bearing in mind the decision would have been taken on 14 September, it would have been an allegation of an act of discrimination again well out of time so that once more the same issues arose for the Tribunal Chairman to decide, namely whether it was just and equitable to let it through. We accept each of these submissions. Again, we can see no ground for criticising the decision reached by the Chairman on this issue.

There is one further comment we would make. This Tribunal can see from the papers there was a factual dispute between Ms Humphreys on the one side and the Second Respondents on the other. She claims that Mr Rowlands had asserted there were vacancies for a teaching appointment, yet the Second Respondents say there was none.

We are of the view that if there is a factual dispute of this sort made manifest on the face of the documents presented to the Chairman at a preliminary hearing, it would prima facie be wrong for him to come to a conclusion in resolution of that dispute without the hearing of evidence. We also think it questionable whether it would be right for the Chairman to exercise his discretion to sit alone to determine such matters. However, in our view there is nothing wrong at a preliminary hearing in a Chairman considering the documents before him, including a statement from the Appellant as there was here, provided, for the purpose of the argument, he accepts the facts in favour of the party at risk in the application, and making his decision on that basis.

Mr Cato has argued one other position. He says it was not so much a question of a permanent job being considered on 14 September but she has not been offered any teaching jobs since that time or since 11 July even in the nature of a temporary employment, filling in for another teacher, for instance.

We note that is not the way in which the second of the agreed issues was raised before the Chairman. However, apart from that factor, there is no evidence in the documents before the Chairman signifying that there were any instances when there was an opportunity on the 14 September or later for Ms Humphreys to be offered temporary employment. She herself certainly never made any particular application after the 14 September for any such temporary work. For both reasons, we do not think that this was a matter which ever came before the Tribunal Chairman to decide.

Accordingly we think that the appeal in this case must be dismissed save in respect of the claim against the Second Respondents under S.1(1)(a) of the Act, based on their failure to investigate the Appellant's complaints against Mr Rowland. Pro Tanto, the appeal will be allowed.