United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PETER WARD (of Counsel) DHILLON & CO Devar House 764 Barking Road London E13 9PJ


 


HIS HONOUR JUDGE CLARK: This is an appeal by the Applicant before the London (North) Tribunal sitting over 4 days under the Chairmanship of Mr Giles Flint, followed by a further day's deliberation in Chambers, against that Tribunal's decision promulgated with extended reasons on 12 December 1997, dismissing her complaint of unlawful sex discrimination.

The nature of the Appellant's case was that she was subjected to a series of acts of sexual harassment by her Manager, the first Respondent, beginning after her interview for a job as a Legal Assistant with the third Respondent and before she took up that post, and thereafter continuing throughout her employment which lasted from 2 October 1995 until her dismissal on about 1 December 1995.

The Tribunal set out 9 allegations made by the Applicant in their extended reasons, considered each of them and rejected them on the facts save for one, where they held that the Appellant had suffered no detriment. The claim was rejected.

This is a preliminary hearing held to determine whether or not the appeal raises any arguable point or points of law to go forward to a full hearing. Mr Ward who appears on behalf of the Appellant has taken us through the detailed grounds of appeal which appear in her Notice. Having heard his submissions on those grounds, we are quite satisfied that all should proceed to a full appeal hearing, including that set out at paragraph 6(7) of the grounds, which we permit the Appellant to add by way of amendment. In these circumstances, there is little purpose in repeating those grounds in this judgment. However, we should make these particular observations: First in relation to the matter set out at paragraph 6(5) of the grounds, the Tribunal found that a telephoned question to the Appellant by the first Respondent amounted to sex discrimination but went on to hold that it was not unlawful because no detriment had been shown. It seems to us that the particular point which arises here is whether the discrimination as found under Section 1.1(a) became unlawful by virtue of the provisions of Section 6.1(a) of the Sex Discrimination Act 1975 rather than under Section 6.2(b) which deals with discrimination during employment.

The second point we particularly mention arises on the amended ground at paragraph 6(7). We see from the promulgated decision that it was reached by two members, the Chairman and one lay member. What we are told happened in this case is that as one would expect in a discrimination case, the Tribunal panel consisted of 3 members at the outset. On the fourth day of the hearing, it appears that one of the members seemed to have fallen asleep during the afternoon session. This point was raised, and at the end of that hearing, before the Tribunal adjourned for written closing submissions from the parties and to consider the matter in Chambers, that member discharged herself from further sitting on the case. Accordingly, only the Chairman and the other member reached the decision on the case.

Our attention has been drawn to the case of Quenchers Limited v McShane (1993) The Times 8 February in which it appears to have been found that in the absence of consent to a Tribunal continuing with only two members, any Order made will be set aside as a matter of course for a rehearing. We have not seen the transcript in that case and it should be made available to the Appeal Tribunal which eventually hears this appeal.

It had occurred to us that this might be a suitable point to be taken as a preliminary issue before the Appeal Tribunal. On reflection, we think it preferable that the whole matter should be listed for one full day and the parties be prepared to argue all matters raised in the Notice of Appeal. We shall list the case Category B and further, we have considered the Appellant's application for the production of the Chairman's notes which are set out at paragraph 7 of the Notice of Appeal. We think the proper course is for a complete copy of the amended Notice of Appeal to be sent to the Chairman, Mr Flint, for his comments by reference to his notes of evidence on the matters raised in paragraph 7(a), (b) and (c).

Finally, there will be an exchange of skeleton arguments between the parties not less than 14 days before the full appeal hearing is listed to take place. Copies of those skeleton arguments to be lodged with this Tribunal at the same time