United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE PETER CLARK: Miss Newman, the appellant, commenced service in the Territorial Army Medical Corps on 11th August 1995. Her service was terminated on 20th September 1996 on medical grounds, so it is contended by the Ministry of Defence, the respondent.

On 4th September 1996, shortly before termination of her service, she presented an Originating Application ["the first complaint"] to the Central Office of Industrial Tribunals. In it she claimed unfair dismissal as a result of sex discrimination and victimisation. She alleged 58 separate incidents of sexual harassment.

In answer to the first complaint the respondent took a preliminary point, among other defences, that the complaint of sex discrimination was out of time.

That issue came before a Chairman, Mr M L Creed, sitting alone at the Manchester Industrial Tribunal on 22nd November 1996. By a decision with extended reasons promulgated on 6th December 1996 ["the limitation decision"] that Chairman held that the last incident of sex discrimination complained of took place on 23rd April 1996. Accordingly the first complaint was presented outside the ordinary three month limitation period. He declined to exercise his discretion in favour of the appellant under s. 76(5) of the Sex Discrimination Act 1975, and dismissed that part of her complaint.

Further, by a second decision promulgated with summary reasons on 6th December 1996 Mr Creed revoked an earlier order made by a Chairman on 25th October 1996, whereby it was held that the Industrial Tribunal did not have jurisdiction to consider the complaint of unfair dismissal and directed that the issue of unfair dismissal be considered at a later date.

On 11th December 1996 the appellant presented a further Originating Application ["the second complaint"] alleging unfair dismissal and sex discrimination.

On 7th October 1997 the appellant applied, well out of time, for a review of the limitation decision, or at any rate that is the way in which her letter of that date was treated by Mr Creed. By a decision dated 28th October 1997 ["the review decision"] Mr Creed dismissed the application on the grounds that it had no reasonable prospect of success and was out of time.

On 10th October 1997 an application by the respondent to strike out the appellant's claim of sex discrimination in the second complaint on the grounds that it was vexatious, frivolous and an abuse of process came before a second Chairman, Mrs Porter, sitting alone at Manchester. She dismissed that application for the reasons promulgated with a decision dated 23rd October 1997.

On 24th October 1997 Mrs Porter sat again and made the following orders:

(1) She dismissed the appellant's application for an order debarring the respondents from defending. That order with summary reasons was promulgated on 31st October 1997. An order with extended reasons was promulgated on 18th December 1997.

(2) She ordered the appellant to pay a deposit of £10 as a condition of allowing her to continue with her complaint of sex discrimination. That order is dated 30th October 1997.

(3) She similarly ordered the appellant to pay a further deposit of £10 in respect of her unfair dismissal claim. That order is also dated 30th October 1997.

Finally, by a decision dated 18th November 1997 ["the second review decision"] Mrs Porter refused an application by the appellant dated 12th November for a review of the orders made on 24th October on the grounds that the application had no reasonable prospect of success.

The Appeals

We have before us two appeals by Miss Newman.

(1) By a Notice of Appeal dated 5th December 1996 (EAT/214/98) she appeals against Mr Creed's limitation decision and his review decision dated 22nd November 1997. ["The first appeal"].

(2) By a Notice of Appeal dated 16th December 1997 she appeals:

(a) the two orders made by Mrs Porter and dated 30th October ordering the appellant to pay deposits of £10 each as a condition of allowing her to proceed with her complaints in respect of both unfair dismissal and sex discrimination; and

(b) the second review decision.

Appeal to the EAT

Our jurisdiction is limited to correcting errors of law. We can only interfere with decisions and interlocutory orders of the Industrial Tribunal where a misdirection of law is apparent on the face of the tribunal's reasons, or where the decision or order is perverse in the sense that no reasonable Industrial Tribunal, properly directing itself could reach that decision, or where the Industrial Tribunal has taken into account irrelevant factors or failed to take into account relevant factors. A further ground for interfering with a decision is where the Industrial Tribunal or a Chairman has shown bias in his or her conduct of the proceedings.

The first appeal

The appeal against the limitation decision dated 6th December 1996 was not lodged until December 1997. The time limit for appealing to the EAT is 42 days from the date of promulgation of the decision or order appealed against. It follows that this part of the appeal is more than 10 months out of time.

The time limit is to be strictly observed. Extensions of time will only be granted in exceptional circumstances. United Arab Emirates v Abdelghafar [1995] ICR 65.

The basis of the appellant's application for an extension of time for appealing is that she was ignorant of both the Industrial Tribunal's power of review and the right of appeal to the EAT. That is not a good excuse. See Abdelghafar page 71E, per Mummery J. We decline to extend time. Accordingly that part of the first appeal fails.

As to the appeal against the review decision again the application was made well outside the 14 day time limit provided for in Rule 11 of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1983. Mr Creed declined to extend time for applying for a review. In our judgment that was a conclusion which he was entitled to reach in the proper exercise of his discretion. Accordingly, the remainder of the first appeal is also dismissed.

The second appeal

We have considered the reasons given by Mrs Porter for ordering deposits of £10 in respect of both the unfair dismissal and sex discrimination claims which are presently proceedings to a full hearing.

Under Rule 7 of the Industrial Tribunal Rules of Procedure, at a pre-hearing review ["PHR"] it is open to a Chairman to order a deposit, subject to the means of the party against whom the order is made, up to maximum of £150 if the Chairman concludes that the claim has no reasonable prospect of success.

In is important to stress that at this stage the Chairman is not required to reach a concluded view as to the merits of the claims, but to come to a preliminary view on the prospects of success on the basis of the material before her. Appeals against such findings, based on perversity, will rarely succeed. Mackie v John Holt Vintners Ltd [1982] ICR 236, a decision on the forerunner to the PHR procedure.

Miss Newman nevertheless submits that the Chairman, Mrs Porter, reached a perverse finding on the prospective merits of her claims, and did so after taking a biased approach in favour of the case advanced by the respondents.

We have considered the appellant's allegations of bias, and the detailed written response to that claim by the Chairman.

In our view the allegation of bias is not made out. On the contrary, not least because of the Chairman's criticisms of the conduct of the respondent and her refusal to strike out the appellant's claims on the application of the respondent, it is our clear impression that the Chairman has striven to do justice between the parties. Further, we cannot characterise the decisions to order deposits in these cases as perverse; nor are we persuaded by Miss Newman that the Chairman failed to take into account relevant material put before her by the appellant.

Accordingly we dismiss that part of the appeal against the deposit orders.

As to the second review decision, that is directed to the appellant's application for a review of Mrs Porter's order refusing to debar the respondent from defending as well as the deposit orders. Dealing first with the underlying decision not to order that the respondent be debarred from defending, we observe that such an order is a draconian one, and we are satisfied that it was within the Chairman's proper exercise of discretion not to make such an order which would have had the effect of preventing the respondent from defending these claims on their merits.

The application for review raised no matters which fell within Rule 11(1) of the Industrial Tribunal Rules of Procedure, and accordingly the Chairman was entitled to conclude that the application had no reasonable prospect of success within the meaning of Rule 11(5). No error of law is here revealed.

Seymour-Smith

The final point is this. The appellant applied to us to amend her Notices of Appeal to submit that the two year qualifying period for unfair dismissal protection set out in s. 108(1) of the Employment Rights Act 1996 contravenes Article 119 of the Treaty of Rome and that accordingly she should not be debarred from pursuing her claim for unfair dismissal on the grounds that she has insufficient qualifying service.

First, we do not understand that at present her unfair dismissal claims stands dismissed. It is due to be heard by the Industrial Tribunal on its merits. What we have explained to Miss Newman, and indicated we would incorporate into this judgment, is that the practice laid down by the EAT sitting in Scotland (Lord Johnston presiding) in Davidson v City Electrical Factors Ltd [1998] ICR 443, is that in cases where the applicant complaining of unfair dismissal has between one and two years service, as is the case here, the hearing should be postponed until after the ruling by the European Court of Justice in the House of Lords reference in ex.parte Seymour-Smith [1997] ICR 371. That practice has been expressly applied to the English Industrial Tribunals. See the statement issued by Morison P dated 3rd April 1998. [1998] ICR 448F-G.

In these circumstances, whilst it is inappropriate to grant leave to the appellant to amend her Notice of Appeal in this respect, it is open to her to apply to the Manchester Industrial Tribunal, in the light of Davidson, for a postponement of the substantive hearing of the unfair dismissal claim, and, in the interests of saving costs, the sex discrimination claim, until after the European Court ruling in Seymour-Smith.

These appeals are dismissed.