United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS R TROWLER (of Counsel) Bindman & Partners 275 Gray's Inn Road London WC1X 8QF


 


JUDGE J HICKS QC: The Appellant, Mrs P. Gembah-Jah, worked as a casual night porter for the Respondent, Royal Lancaster Landmark Hotel Company Limited, until she was dismissed on 30 March 1998.

1. She complained of sexual discrimination in the form of sexual harassment in February and March 1998 by her immediate superior, a Mr Ashong, and she also complained of victimisation in the sense that her dismissal, she said, was because of her complaint about that harassment. It is accepted by Miss Trowler on her behalf that the Originating Application is confined to those 1998 events.
2. As part of the evidence and part of the history it emerged (and it is quite fully dealt with in the Employment Tribunal's decision) that Mrs Gembah-Jah had complained of sexual harassment by Mr Ashong in April 1997. That had been investigated by the employer's management and Mrs Gembah-Jah interviewed but she, at the conclusion of that interview, gave them to understand that she did not wish to pursue the matter further in any form or sense (and there is no suggestion that this was not properly dealt with by management).
3. There was thereafter (and it appears that unfortunately Mr Ashong did come to know of that complaint, notwithstanding that it was not pursued formally) a history of friction between Mrs Gembah-Jah and Mr Ashong which the Tribunal deals with in its findings of fact.
4. As to the complaints of sexual harassment in February and March 1998, the Tribunal found as a fact that the Applicant had not established those complaints, although they did (also as a finding of fact) find that there had been sexual harassment in the 1997 incidents. They therefore rejected the complaint of sexual discrimination, and there is no complaint about that, but they also, and consequentially, rejected the allegation of victimisation.
5. What is said first, and chiefly, by Mrs Gembah-Jah in her Notice of Appeal and by Miss Trowler on her behalf before us, is that although not raised in the Originating Application and not pursued by Mrs Gembah-Jah at the hearing, there was the possibility that a complaint of victimisation could have been pursued on the basis that the 1997 complaint had been an element in Mrs Gembah-Jah's dismissal in 1998. It is said that the Employment Tribunal erred in law in failing to consider that point which, as Miss Trowler conceded, would have involved their asking Mrs Gembah-Jah whether she wished to pursue it and whether, for that purpose, she wished to amend her Originating Application.
6. There is no doubt that it is the duty and the general practice of Employment Tribunals, in particular a Chairman, to give assistance to unrepresented applicants, as Mrs Gembah-Jah was, in various ways, but in our understanding it is equally clear that that does not extend to a duty, or, indeed, any propriety in running an applicant's case for her. Nor, it is clear on the authorities, is it an error of law on the part of an Employment Tribunal not to consider and decide an issue which could have been, but has simply not been, raised before them.
7. Miss Trowler, who has presented the matter with skill and moderation, accepts that she is, in her words, asking us to take the Employment Tribunal's responsibility to its limits and we are clearly of the view that it is not just to the limits, but beyond the limits, to say that this Tribunal erred in law in failing to invite Mrs Gembah-Jah to pursue an unpleaded allegation of the kind discussed, more particularly because it was, and must have been, in the forefront of Mrs Gembah-Jah's mind that there had been the 1997 incidents. She gave evidence of them. They were canvassed and dealt with by the Employment Tribunal and the employer had (and, indeed, this is one of Miss Trowler's points) expressly denied that the 1997 complaint had any part in its decision.
8. That was in a sense an open invitation to Mrs Gembah-Jah to join issue on that unnecessary denial and raise the point, but she did not, and it goes beyond the duties of an Employment Tribunal in our view to suggest that they should, in all those circumstances, have raised the point themselves. We therefore reject that ground of appeal.
9. There is a second ground of appeal alleging that the Employment Tribunal erred in law in not making any determination as to the reason for Mrs Gembah-Jah's dismissal, and in the Notice of Appeal that is connected with the fact that there was a stay of the unfair dismissal complaint by her. That stay, we take it, must have been one of the very numerous examples of stays in circumstances where the length of employment was not two years, and where the decision in the Seymour Smith case was being awaited. It does not, in our view, have anything to do with any failure of the Employment Tribunal to make determinations which they should have made and, indeed, Miss Trowler accepted that this ground was subsidiary to her first and main point and that ground also, therefore, must be dismissed. In the result the appeal fails.