United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR PETER EDWARDS (of Counsel) The Treasury Solicitors Queen Anne's Chambers 28 Broadway London SW1H 9JS
For the Respondent	MR MARK WHITCOMBE (of Counsel) Messrs Lees Lloyd Witley Solicitors Castle Chambers Liverpool L2 9TJ


 


JUDGE J. ALTMAN: This is an appeal from the decision of the Industrial Tribunal sitting at London (South) on 13 February 1998, in which a preliminary decision was made that the application before them was issued out of time but that they considered in all the circumstances of the case that it was just and equitable for a Tribunal to consider the Originating Application out of time.

The complaint which formed the basis of the Originating Application related to claims under the Sex Discrimination Act arising out of incidents and behaviour and attitudes which the Applicant complained were experienced by her in the course of her employment with the Respondents, first from fellow prison officers in individual acts and secondly from the treatment and lack of candour of her managers.

Because of the decision which we have made, we are going to give our reasons fairly shortly.

The first instances are matters which have been described as harassment and relate to individual incidents concerning fellow officers and are alleged to have occurred between October 1987 when the Applicant was posted to Brixton and July 1998 when she was transferred to the Old Bailey. The second group of incidents relate to a letter and to the actions of management, the letter being dated in July 1998 and related events happening thereafter until the Applicant finally left Brixton in 1993.

We have been told that before the Industrial Tribunal those two aspects, to use as a neutral word as I can, of this complaint were regarded by the parties and accepted by them as being separate. Although that position was maintained at the outset of these proceedings, it became apparent during the hearing that it may at least be possibly part of the argument being advanced on behalf of the Applicant, that the allegations about the conduct of management span both types of allegation and both periods. Finally on behalf of the Applicant, Mr Whitcombe has conceded the separateness of the aspects that were dealt with, but regarded them as of kind rather than as of date. In other words, he conceded that acts to be termed as harassment fall into one group and that acts to be termed as discriminatory treatment by management, if I can use my own words to described what I understand is being said, on the other.

This Tribunal has spent some considerable time with very great assistance from both Counsel for the parties, for which we are greatly indebted, in endeavouring to analyse the form of the extended reasons. It is always a difficult exercise to try to read into the mind of a Tribunal through the reasons, particularly as they are not meant to be precise realistic, totally comprehensive documents.

Having dealt with the general background to the procedure before the hearing, in paragraph 7 of their decision the Tribunal turned to the substantive issue, referred to section 76(5) of the Sex Discrimination Act 1975 which gave jurisdiction to consider a complaint which was out of time, and then in paragraphs 8 and 9, they dealt with having heard the evidence of allegations. Then in paragraph 9, the Industrial Tribunal went on to say that there were two categories, specifying first the sexual harassment and giving a brief summary of what they amounted to and concluding with these words:

"These allegations were investigated at the time, at least partially, but there was nothing before the Tribunal to indicate whether such investigation was such that it was not just and equitable for them to be considered now."

It is complained on behalf of the Respondents that if that was the expression of the judgment of the Tribunal in relation to what I recall the harassment allegations, it did not on the face of it take into account those crucial factors which had to be taken into account or ask the right question. Indeed it is suggested by Mr Edwards that it reversed the burden of proof and he has instanced a number of omitted features, namely the passage of time, the question of inevitable fading memory, and the questions of the actions or non-actions of the Applicant at the various times. It must follow that there can be little argument that if that was the decision of the Tribunal on those matters it failed to ask the right questions and failed at least to demonstrate that the judgment was based upon the relevant considerations following the appropriate findings to support them.

Having read this decision we are bound to say that we cannot believe that in that paragraph the Industrial Tribunal was intending to totally compartmentalise its view of the harassment allegations and deal at that part of the judgment with its findings on that leaving the remaining part of the judgment to deal with the remaining allegations. Indeed, in paragraphs 20 and particularly 21, they conclude with an approach which is characteristically, if I may say so, correct, by setting out the test to which they have to have regard, and setting out some of the facts which have led them to their decision. It is unnecessary to repeat them, but we are satisfied that those conclusions elided elements from all the allegations in the case.

There has been much argument before us as to whether or not, applying the ordinary tests that an Employment Appeal Tribunal would apply to this sort of situation, this was the correct expression of the right approach in law, or whether it took into account the correct factors and whether or not it was based on evidence before the Tribunal, or whether it was, as was suggested incorrect. We are driven to the following conclusion on the stance of both parties that these allegations were separate. If they were dealt with separately by the Industrial Tribunal, then the judgment in paragraph 9 was flawed in the way I have explained. If the treatment of the issue was not intended by the Industrial Tribunal to be separate in the way in which the case had been presented by the parties, it should have been. It is clear that in cases of this kind there may be some allegations within a complaint which are within time or for which time may be extended, and some which fall outside or for which time may not be extended. It is clear that in order to assess that type of case, a Tribunal has to address particular groups separately. Therefore we are driven to the conclusion that the Tribunal by expressing its conclusions at the end did not address its mind to whether the harassment allegations in themselves should be permitted to be presented by the application of section 76(5).

We suspect that the Tribunal may not have regarded these matters as separate, but be that as it may, it is has been confirmed to us that that is the way it was presented to the Tribunal and I, having investigated that at the very outset of the hearing before us, this was confirmed by Counsel as the current position of the parties. Therefore, without our having considered the pros and cons of any of the other matters raised before us, we have been reluctantly driven to the conclusion that the decision of the Industrial Tribunal was flawed on that ground alone.

It is bad enough to have to come to an Industrial Tribunal, but for any party to have to weather the procedures of preliminary hearings and appeals and further preliminary hearings is an enormous and unfortunate strain, but in order for justice to be done to the parties, it seems to us that we are driven to the conclusion that I have expressed. It is not possible for us to form any judgment on the material before us in relation to this matter and we have therefore come to the conclusion that the consequential directions that we should give are as follows.

This preliminary matter will be remitted to a differently constituted Tribunal for rehearing to be listed as matter of urgent priority. We would hope this can be done by the end of this year or, if that is not possible, in the very early part of next year. We say that because one of the factors in this case is delay, and it behoves those of us that are seeking to administer the procedures of the Tribunals to do all we can to avoid adding to such delay in this case.

In addition we direct that steps be taken to ensure that the papers provided to the Chairman and Members of any subsequent Tribunal dealing with this matter, must not contain the decision of the Industrial Tribunal in this case; we suggest a new file. We further direct that, on the basis that the present application so far as allegations of harassment are concerned effectively contains allegations against two named officers only, we make the following consequential directions. Any enlargement of those allegations, whether as to named, un-named or unknown officers, must be made by way of application to amend and must be served within 14 days (i.e. by 17 December). Such application is to be heard at the same time as the new preliminary hearing. We also direct that each party must submit a statement of its arguments supported by any evidence in support thereof within 14 days also (i.e. by 17 December). We say that because it has become apparent during these proceedings, that since the initial hearing of the application, some allegations and evidence have become apparent and it seems to us that it is of the utmost importance that the next hearing of the Tribunal is not "half-baked". I do not say that as any sort of criticism, it is very difficult to pace a preliminary hearing alongside preparation for a case, but it seems to us that the next preliminary hearing must deal with all outstanding issues and deal with any further work before any final hearing that there may be. The parties must submit their evidence and statement of issues if they go beyond their skeleton arguments that have been submitted to us within 14 days (i.e. by 17 December).