United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	Mr K J CADOO (Representative) Employment Law Consultant Chestnut Cottage Boughton Malherbe Kent ME17 2BD
For the Respondent	MR M WHITCOMBE (of Counsel) Messrs Jay Vadher & Co Solicitors Victoria House 185 Romford Road Stratford London E15 4JF


 


JUDGE D PUGSLEY: As long ago as May 1996, the Applicant presented an Originating Application to an Industrial Tribunal. We are now considering an appeal from a decision which was promulgated on 17 December 1997 after a four day hearing. In fact, we are told, that this was the second hearing; the first hearing had to be aborted for reasons with which we are not concerned. The reality is, we are still a long way to resolving the dispute between the Applicant and her then employers.

One of the matters of concern to the Tribunal, is the way in which Employment Tribunals, instead of dealing with a case as a whole are trying to deal with separate discrete issues which has the effect, not, as intended, of saving time, but of making the whole proceedings protracted. The Tribunal decided in this case, to consider as a discrete issue the preliminary issues. We pay tribute to the way in which the Chairman and members of the Tribunal set out in clear terms what the case was. The Applicant was at that stage unrepresented and the Tribunal went to considerable trouble to set out what the real issues were to be determined. One of the issues that it determined we need not concern ourselves with because the Tribunal decided that it did not have jurisdiction to deal with a complaint by the Applicant of "unfair treatment". That was not a matter they held was in their jurisdiction. No appeal flows from that.

We say for the history that subsequent to this decision, the Tribunal reconvened again in April and on that occasion they dismissed the Applicant's claim for constructive unfair dismissal and Mr Whitcombe who appears for the Applicant Respondent says that there is no appeal from that. We are concerned with the decision of the Industrial Tribunal as to whether complaints of unlawful discrimination are within time.

The position very simply is this. The Tribunal had to consider whether these applications were in time, and it came to the view that at the hearing that the application of unlawful race and sexual discrimination were part of a continuing cause of conduct and as such were in time. The basis of that is set out in paragraph 19 of their decision which reads as follows:

"19. In this case the Originating Application was prepared by the Applicant without the assistance of professional advice. The Tribunal spent some considerable time with the Applicant ensuring that her complaints of unlawful sex and race discrimination were properly and sufficiently particularised. The overall substance of those complaints if of an underlying regime of institutionalised racism and sexism which went unchallenged and unchecked. That according to the Applicant manifest itself for her at different times, and in different ways, but the underlying policy of failing to combat such institutionalised race and sex discrimination remained until the termination of her employment. Whilst the Applicant had not put her case in those precise terms, the Tribunal considered that was the substance of her complaints emerging from her evidence and found that the theme running through her evidence was of continuing covert racism, sexism, which the Second Respondent allowed to exist by default. We appreciate the dangers inherent, both in trying to second guess the nature of the complaint, and in accepting such a line of argument but we considered that the proper course in this case was to look at the substance of the Applicant's complaint, and to act upon it on this occasion. We emphasise that at this stage the complaint is an allegation only, but the question for the Tribunal at this stage is whether the Tribunal has jurisdiction to consider those allegations. On the basis that the allegation is of a practice of the Second Respondent which continued to the Applicant's last day of service, the Tribunal finds the that Originating Application was presented within time in relation to the complaints of unlawful race and sex discrimination.

20. The Tribunal is aware of the distinction between continuing discrimination extending over a period of time and individual acts with continuing consequences. The Tribunal appreciates that the view as expressed in paragraph 19 above is open to challenge, and we therefore considered the position should our view be wrong. We noted that in those circumstances all the acts of unlawful race and sex discrimination would be out of time. We considered whether nevertheless it would be just and equitable to consider those complaints. We considered all the circumstances including the reason for the delay in commencing the proceedings; the subsequent history as to the delay in those proceedings coming before this Tribunal for hearing; the extent of the advice the Applicant received, including from her trade union at the time she presented her Originating Application and the apparent merits of the case. We concluded that it would not be just and equitable for the Tribunal nevertheless to consider those complaints of unlawful race and sex discrimination if they are out of time."

Paragraph 21 and 22, the Tribunal briefly went on to consider the allegations of discrimination by of victimisation and they decided in those particular cases, that the allegation were out of time.

The Tribunal then proceeded to hear the Applicant's evidence and the evidence of her witnesses and the substantive issues as to whether she had been unfairly dismissal and whether she had been subject to unlawful race and sex discrimination. The Tribunal heard the evidence apart from the Applicant, of Stephen Padmore and Diana Weise who were witnesses on behalf of the Applicant, both of whom attended under a witness order. Neither of them gave evidence which supported the Applicant to any material extent.

At the conclusion of the Applicant's case Mr Cadoo on behalf of the Respondents indicated that he wished to make submissions of no case to answer. In response to representations from the Applicant, the Tribunal requested that Mr Cadoo make his submissions in writing and the Tribunal made consequential orders. The Respondents were directed to provide the Applicant with the combined full written skeleton submissions to include the nature of the submissions made, and the arguments in support of their submissions and to supply three further copies of such written skeleton submissions to the Tribunal. The Applicant was encouraged to prepare written skeleton submissions in response to these and to serve them on the Tribunal and the hearing was adjourned until Monday, 6 April when the Tribunal were going to hear all submissions and submissions of no case to answer, which should be limited to expansion of those set out in the written submissions. The Tribunal was then proposing to consider such events.

Well fate intervened in the sense that there was a Notice of Appeal filed by the Respondents, that Notice of Appeal being filed in January 1998. The Tribunal notwithstanding that went on in April 1998 to give a further detailed findings of facts in relation to the unfair dismissal and that was by a decision promulgated on 24 April 1998. Meanwhile by March 1998 at a preliminary hearing, this Tribunal before His Honour Judge Clark, Mr Crosby and Ms Switzer, there was a hearing where it was found there was an arguable ground of appeal as to this issue and also an arguable ground of appeal as to whether Mr Weigel should be a Respondent. It is right to say that it is accepted by the Respondent Applicant that Mr Weigel should not be a party to proceedings and that action is dismissed on withdrawal by the Applicant.

When we saw these papers we were all extremely depressed and concerned. We noted that the Tribunal had not in fact made any findings of fact as to the Applicant's evidence. They say in paragraph 19, ".... We emphasise that at this stage the complaint is an allegation only, .....", which we assume can mean that it was noting what she said but not in fact making a finding of fact that the significance of those matters in relation to her allegations of race and sex discrimination. They did say that the evidence of Stephen Padmore and Diana Weise, in paragraph 23, did not assist the Applicant's case to any material extent. What concerns us, is that it is only in the most exceptional or frivolous of cases, that it would be right for an Employment Tribunal to find after only the Applicant's case that there was no case to answer and to decide it was not necessary to hear what the Respondents had to say about it. That principle has been adumbrated in a number of cases, Oxford -v- The Department of Health and Social Security [1997] ICR 884-887 EAT, Humphreys -v- Board of Managers of St George's Church of England (Aided) Primary School [1978] ICR 546 EAT and in the case of race discrimination the decision of the EAT in Owen & Briggs -v- James [1981] IRLR 133 and British Gas plc -v- Sharma [1991] IRLR 101-106, again a decision of the EAT.

In that the Tribunal were concerned to find whether a continuing acts as required for the latter to be found in time, we all would have thought this was just the type of case where it would be appropriate for a Tribunal to hear all the evidence before reaching a decision. We were extremely concerned that this Employment Tribunal, no doubt from the best of intentions has got itself into an impossible position. It is found that there are certain allegations which justified having jurisdiction to hear the case, but it has made no findings of fact as to what they are. It is right to say that in the case of Owusu -v- London Fire and Civil Defence Authority [1995] IRLR 574, it was said:

"We emphasise that all these matters are matters of allegation only. Nothing has been proved. But in our view the allegations amount to prima facie case that there was a continuing act. The continuing act was in a form of maintaining a practice which, when followed or applied, excluded Mr Owusu from regrading or opportunities to act up.

... It would be a matter of evidence for the Tribunal as to whether such a practice as is alleged in Mr Kibling's argument in fact exists. It may be that, when explanations are given by the Respondents, it will be shown that there is no link between one instance and another, no linking practice but a matter of one-off decisions with different explanations which cannot constitute a practice."

The danger is that a Tribunal may find there is jurisdiction at a preliminary hearing but then on a full hearing appreciate that its preliminary decision was ill founded. We are concerned that having started on a preliminary issue the Tribunal were in the facts of this case embarking upon something that was intrinsically and integrally connected to the central issue of the case. It would have been far more appropriate and fairer to all the parties had they heard the whole case and then determine in the light of all the evidence before them, amongst other things, whether these acts made within time is within the meaning of the Sex and Race Discrimination Acts and if the answer to that question is no, is whether it is just and equitable to extend time.

We cannot envisage a situation where that could cause injustice to either employer or employee. If the course of events was irrelevant and had no probative value, no doubt they would be disregarded by the Tribunal. If it was probative it would be taken into consideration. It may well be that a long litany of complaints might show to a Tribunal that the employers were engaged in a pattern within the meaning of the act, or it might show there was a pattern to certain matters but not as to others. It might show there was a predisposition towards hostility to an employee on racial or sexual grounds or both. Equally if the complaint were ill-founded, it might well assist the Tribunal determining whether an applicant was a person who tended to make insubstantial complaints on grounds of gender or race, because he or she was unable to accept criticism of any sort. All these matters can safely be left with Tribunals. What is unsatisfactory is to have a preliminary issue on something that goes to the very heart of the case, and which means that the Tribunal is making half findings in the absence of full findings. What the case required was case management, not in the interest of some bureaucratic dictate but in the interests of doing justice to all the parties and fulfilling the justice to the community that Court time is spent wisely and well on real issues. The result of this is that although we pay tribute to the way in which the Chairman with considerable fairness, if we may say so, sorted out the issues at the end of the day this case in over two and a half years has not advanced. It should, in everyone's interest, the parties and if we may gently say so, the taxpayers, have been resolved months and months ago.

We therefore with all the emphasis in our command, urge Tribunal Chairman to take an overview of the case and to exercise a discretion in each and every case. There will be cases in which it is appropriate to hear matters as a preliminary issue. We venture to suggest it would be a rare case where a preliminary issue that last as long as four days would be justified. It is a strain to the parties. It means that there may be cases of premature adjudication where Tribunals jump to issue a conclusion and then subsequently realise that such a view was wrong in the light of all the evidence they have heard. We consider that the only appropriate course is to send this case back to the same Tribunal to continue to hear the whole issue of race and sex discrimination.

We are grateful that we have had the advantage of advocates who have an appreciation of the overview and both have accepted that the real issue in this case is one that can and should be resolved in total. Now we accept that if we are going to send the case back to be heard together with a substantive issue, so that before reaching a decision, the Tribunal has all the evidence before it, it is only fair that the cross appeal be allowed and that the just and equitable issue should be open to the Tribunal to consider if the primary issue follows.

We accept that as far as the victimisation being out time, that is so integrally connected with other issues and what is just and equitable it would be unfair for that not to go back as well and Mr Cadoo has agreed with that proposition.

We finally say this, if the Tribunal having heard all the evidence decided that it did not have jurisdiction, it would nevertheless be helpful if they would indicate what their findings were as to whether they were or were not discriminatory acts. In personal injury cases judges who determine that there is no liability, nevertheless, in order to assist the Court at a later stage, go on to determine what the damages would have been had the Plaintiff been successful.

We are grateful to the parties who have agreed a draft order, the appeal and cross appeal both be allowed, the matter to be remitted to be reheard by the same Industrial Tribunal unless in the view of the Learned Regional Chairman, factors have emerged which render such an arrangement impractical or impossible in which case the matter will be remitted to be heard by a freshly constituted Tribunal as directed by him or her. The Tribunal is to consider at the conclusion of all the evidence whether it has jurisdiction to hear the Applicant's complaints having regard to Section 68 of Race Relations Act 1976 and section 76 of the Sex Discrimination Act 1975. If heard by the original Tribunal it will be for that Tribunal to decide if it is necessary to hear any or all the evidence already given. The Applicant's complaint against Mr Weigel, First Respondent it dismissed on withdrawal by the Applicant.