United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR K KIVERSTEIN IN PERSON
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANTS


 


HONOURABLE MR JUSTICE LINDSAY (PRESIDENT): We have before us by way of a full hearing the appeal of Mr Keith Kiverstein in the matter of Kiverstein v. (1) Mr B Llewellyn (2) Sir Patrick Brown (3) Mrs C Mongelard (4) Department of Transport. There was a decision of the Chairman alone at London South after a hearing on 22^nd November. The decision was sent to the parties on 11^th December and it was the decision of the Tribunal is that "leave to amend the Originating Application is refused. The Tribunal has no jurisdiction to entertain the Application which is dismissed".

1. To delve into the background a little, on the 7^th August 1996 Mr Kiverstein lodged an IT1 for "sex discrimination – victimisation", and there was an accompanying letter of 6^th August 1996. Without descending into details, suffice it to say the nature of the complaint was far from easy to discern and, in particular, it was hard to find what was the alleged protected act which led to the alleged victimisation. That was 7^th August 1996.
2. On 20^th September 1996, the Department of Transport lodged an IT3 which took up a point as to jurisdiction. On 22^nd November, as I mentioned, there was a preliminary hearing at the Employment Tribunal of a preliminary point. The decision, as mentioned, was sent to the parties on 11^th December. On 17^th January there was a Notice of Appeal by Mr Kiverstein. The case raised the problem (which had already been raised in other cases) of how far there was to be a distinction between discrimination based on sex and discrimination based on what has since become called "sexual orientation"; how far did the domestic law, alternatively, community law, recognise discrimination or victimisation that was based not on a difference of sex but on a difference in sexual orientation? This was a point that was raised in a number of cases and had run to the highest level.
3. Ultimately, the position seemed to be arrived at that there was a material difference between complaints based on sexual orientation and complaints based on a difference of sex and the law appeared to be that to complain merely upon orientation grounds meant that there had been no relevant discrimination.
4. But another avenue emerged and that was that what could be complained of was that the homosexual man had been treated differently than would have been a homosexual woman. That emerged as a matter which could be complained of, and, by the 1^st March 1999, Mr Kiverstein's Notice of Appeal having previously been stayed in order to find out how the law would emerge on these large issues of wider application, Mr Kiverstein wished, by the 1^st March 1999, to add to his IT1 to claim that he, as a gay man, had been discriminated against in the sense of being treated less favourably than would have been a lesbian woman.
5. That proposal to amend his IT1 was, by the 7^th April 1999 opposed by the Treasury solicitor on behalf of all Respondents. The amendment that was being discussed at the time was, curiously, being discussed in terms of an amendment to the Notice of Appeal. To deal with this problem, on the 20^th April 1999 the Registrar here at the EAT directed a Directions Hearing to take place at the EAT and on the 18^th June 1999 the matter came before his Honour Judge Peter Clark, here at the EAT, and the order was made, so far as relevant that, "the Tribunal orders that the application to amend the Notice of Appeal in the form submitted be granted and the Tribunal further orders that the appeal be allowed to proceed to a full hearing at the Employment Appeal Tribunal in accordance with the judgement of the Employment Appeal Tribunal". That reference to an existing draft, namely "in the form submitted", is to a form dated 18^th June 1999 and that is now our page 4A and 4B. That now is the only Notice of Appeal that is before us and it falls into two main parts.
6. Part one raises the question of whether the Chairman at the Employment Tribunal had erred in law in deciding that the Treasury Solicitor's objections truly went to jurisdiction; whether or not there was any protected act went, surely, not to jurisdiction but directly to the substance of the case on the facts'. Moreover, that first ground alleges that the Chairman was wrong in holding that there was no protected act which could have given rise to a claim in victimisation. This first ground is very much like what was in the original unamended Notice of Appeal.
7. As to that first ground, which is on page 4A paragraph 1(i) and (ii), the Treasury solicitor now accepts that the Appeal is a well founded appeal and raises arguable points of law and the Treasury solicitor as we understand from the correspondence, has no objection to this first broad issue being remitted back to the Employment Tribunal, presumably on the footing that it cannot and will not be said that the events complained of in the IT1 could not amount to victimisation but that as to whether or not there was in fact victimisation within the complaint raised by the IT1, that is to be a matter to be heard and decided by the Employment Tribunal.
8. The correspondence shows that the parties are agreed on this first issue (or at least how to handle it) and they are not here before us to address argument. Indeed, the Respondents are not here at all. Obviously, therefore, we are not in the position to receive prepared adversarial argument on this point and therefore the better course is for us to accede to the agreement that exists between the parties on this ground and to set aside paragraph (ii) of the decision (namely the part that says the Tribunal has no jurisdiction to entertain the application which was thus dismissed) and instead to invite the Employment Tribunal to arrange a directions hearing to give directions for the substantive hearing of the IT1. So much for that first broad ground of Notice of Appeal, that leaves the second one to be dealt with.
9. What I call the second broad ground is at page 4A and 4B paragraph 2(i)(ii)(iii). As to these matters, the Treasury solicitor says that for them at be raised at the substantive hearing there would need to be amendment to the IT1 and that therefore the proper course is simply to send the matter to the Employment Tribunal which can then deal with the question of whether or not the IT1 can and should be amended in whatever particular way, in point of language, Mr Kiverstein eventually proposes. There is, as yet, no verbatim proposal for amendment formulated and certainly not one that we have seen. As we have understood the correspondence and the papers before us (which include a skeleton from Mr Kiverstein) Mr Kiverstein does not object to that so long as we, at the EAT, make it clear that we have not considered the second broad grounds on their merits. He takes the view that no amendments are necessary to his IT1. Well, again, the better course seems to be that we should accede to the arrangements that the parties have proposed. What we will do is send to the Tribunal the question of whether the IT1 as unamended is sufficient as it stands to embrace the complaints which Mr Kiverstein wishes to make. The complaints which he wishes to make are (1) that Mrs Mongelard had treated a Mr Catling less favourably than she would have treated a lesbian employee and, if that were the case, accordingly, says Mr Kiverstein, (2) Mr Kiverstein's complaint about Mr Catling's treatment could and did find a complaint as to his victimisation within section 4 of the Sex Discrimination Act. Those questions we send back to the Employment Tribunal. If, to any extent, the answer to that first question is negative (namely that some amendment is necessary) nearer to any, then, if there is an application made for amendment to the IT1, it will be for the Tribunal to rule upon whether it would be appropriate to give leave for such amendment and if so, upon what, if any, terms.
10. We have been a little concerned to consider what would some more convenient way of dealing with these questions. It is tempting, since, already, a long time has passed with procedural issues, to say that questions as to amendments and so on should be considered at the substantive hearing itself. But, against that, the Respondents are entitled to know just what is the case that is made against them and, as we have already indicated, there is in any count to be a directions hearing as to issue one. In the circumstances the better course is that these questions in relation to the second broad ground are also best ruled upon at a directions hearing at the Employment Tribunal.
11. Mr Kiverstein, as we have indicated, takes the view that no amendment is necessary to his IT1. Even so, it would be prudent for him to prepare the very form words of whatever amendment he would require, were it was to be ruled that amendment was necessary, because otherwise there is a risk, if he has not got some form of words already thought of, that, if the question does go against him and if therefore formal amendment is required, there would need to be some adjournment if he had not already formulated the very words that he would propose. He would be therefore be well advised to consider what form of words would be necessary by way of amendment should he lose the issue of whether amendment is necessary.
12. Moreover, at the directions hearing, the parties would do as well to consider the law as to the exercise of any jurisdiction of the Employment Tribunal to add, out of time, to an existing IT1 a claim which had it been then pleaded afresh in a new IT1, would be out of time. That subject needs to be considered so that again if it does come up (and we are not saying that it will, but it might). The parties will already be intellectually equipped to deal with the issue rather than risking the matter going off further for adjournment. So these are the practical steps that we indicate are to be taken. We set aside paragraph (ii) of the decision. We invite the Tribunal to arrange a directions hearing to deal with the questions that we have described and also to make arrangements for the substantive hearing.