United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS FIONA MONK (Solicitor) Instructed By: Coventry Law Centre The Bridge Broadgate Coventry CV1 1NG


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us, by way of a preliminary hearing, the appeal of Mrs R.E. Rennie in the matter Rennie against Orbit Housing Association.

1. On 3 August 2000 Mrs Rennie lodged an IT1 claiming Sex Discrimination and giving the dates of her employment as from December 1997 to 5 April 1999. As one can see from that, the IT1 was therefore more than three months after the last date on which Orbit Housing Association, the Respondent, had been her employer and, very sensibly, the IT1 itself recognised that it was out of time. On 6 September 1999 Orbit's IT3 took the time bar point.
2. On 21 January 2000 there was a hearing at the Employment Tribunal at Birmingham under the chairmanship of Mr J.G. Haslam, sitting with two lay members. On 24 February 2000 the decision and reasons were sent to the parties. The unanimous decision was that Mrs Rennie's application was dismissed because of the time bar point.
3. Mrs Rennie had, at a late stage, sought to add constructive dismissal, unfair dismissal, breach of contract and failure to pay wages to her original IT1 but Orbit had responded that all of them were, in any case, out of time.
4. In its Decision the Tribunal turned to section 76 (5) of the Sex Discrimination Act 1975 and to the question of whether it was just and equitable to lift the time bar in all the circumstances of the case. The timetable of events, as found by the Tribunal, was as follows:
5. First of all, on 28 January 1999 the employer had introduced a new rota and gave Mrs Rennie four weeks to adjust to accommodate for it. That was a problem because she had children to look after. On the same day, 28 January 1999, she lodged a grievance. That was dealt with "promptly", said the Tribunal, by Orbit, the decision being that the rota had to continue and that Mrs Rennie had to abide by it from the beginning of April.
6. Before 17 February her husband had taken some legal advice from a firm of Solicitors specialising in employment law and a letter was written to Orbit indicating that such advice had been taken. The Tribunal said:

"It mentioned that the solicitor had advised there were grounds to take legal action to protect her employment on the grounds of sex discrimination, breach of contract and constructive dismissal."

It may be that Mrs Rennie or her husband was inflating the extent of the legal advice that either of them had received, but that was the finding of the Tribunal.

7. On 23 February 1999 Mrs Rennie raised a further stage of her grievance and it was dealt with by Orbit. The Tribunal mentions no delay, let alone unreasonable delay, in Orbit's dealing with that stage of the grievance.
8. Next, Mrs Rennie found another job. On 5 March 1999 she wrote to Orbit giving notice to expire on 5 April 1999. However, she requested that her grievance should continue to be investigated and it was. Thus, on 11 and 23 March, she had grievance meetings. On 5 April her notice expired and her employment by Orbit therefore ceased.
9. On 7 April the Area Director of Orbit, who had dealt with the latter stages of her grievance, wrote to her. As to that, the Tribunal said this:

"In conclusion he said that it was clear that she felt unhappy about certain areas of her work with the Association and he continued 'Given that you have now left our employment I am limited how I can resolve those grievances personally. I confirm however, that your grievance has raised matters which require improved monitoring and procedures so that the service to residents and staff could be improved'. He then set out the six particular matters where he intended action should be taken and he concluded: 'I hope this list indicates the serious and constructive approach the Association has taken in this matter'. In a telephone conversation between the applicant and Mr Riley on the 12 April, the applicant indicated that had she still been in employment, she would have accepted the situation and 'moved forward'."

10. Nonetheless, on 19 April 1999 she decided to take her grievance yet further, this time to the Regional Director, a Mr Unwin, and she did so on that day. On 4 July 1999, the three months from the end of her employment expired. On 6 July 1999 Mr Unwin gave his response to that final stage of the grievance. On 9 July 1999 Mrs Rennie received that response and she then contacted the Equal Opportunities Commission and ACAS and tried also to contact the Coventry Citizens Advice Bureau. As to that, the Tribunal said this:

"She eventually managed to get an appointment with the Rugby Citizens Advice Bureau on the 3 August and on that day she lodged a complaint with the Tribunal; alleging sex discrimination. She gave notice on the 7 September 1999 that she wished to amend her application in two respects. First to claim constructive dismissal, which is not now being pursued, and secondly claiming breach of contract relating to sums she says were owed amounting to £187.59."

The Tribunal then said:

"Dealing with the sex discrimination claim. We have concluded that the alleged act of discrimination arose when the applicant's employment ended on 5 April 1999."

11. In their reasons the Tribunal then referred to Aniagwu v London Borough of Hackney [1999] IRLR 303, and the Tribunal said this:

"That case concerned a grievance which was being pursued during the course of the employment. The applicant had deliberately held off from presenting a claim to the Tribunal whilst he was pursuing the grievance. One can understand that in those circumstances it could well be desirable to postpone making a claim to the Industrial Tribunal whilst domestic procedures might solve the matter. In Mrs Rennie's case, the employment had finished on the 5 April 1999. On the evidence we find that there was nothing which inhibited her in any way from presenting a claim for sex discrimination at any time after that date. The fact that the third stage of her grievance was still outstanding was not an inhibiting factor."

12. The Tribunal acknowledged that there was little prejudice to the Respondent, Orbit, occasioned by her delay which was a delay of almost a month. But then they continued:

"The applicant is clearly an intelligent person, and is well able to articulate the points she wishes to make. She had already obtained legal advice and any intelligent person must be aware that termination of her employment is a significant event, which, in relation to claims she might wish to pursue, would change the circumstances. She should have taken further advice promptly if she needed to do so and have pursued the matter immediately after her employment terminated. She did not do so until she received the result of the grievance at the third stage.

We have considered the extent and reasons for the delay, the advice the applicant sought and was given, and whether prejudice would be caused to the respondents by allowing a late claim to proceed. We can see no circumstance here where we can say that justice and equity indicate that the time limit should be extended so as to enable the applicant to proceed."

13. They then turned to the breach of contract claim and directed that that, too, was out of time and that it had been reasonably practicable for her to have lodged an IT1 with respect to that complaint in time. But there is, in effect, no appeal as to that part of the case.
14. On 4 April 2000 the EAT received Mrs Rennie's Notice of Appeal. It is directed only to the sex discrimination side of things and in substance it runs two points which can, in fact, be taken together. It says this:

"Aniagwu [and it gives the reference]. The Tribunal failed to apply the principle contained that unless the Respondents have demonstrated prejudice, then the Tribunal have a wide discretion under S.76(5) of the Sex Discrimination Act 1975 to extend the time limit and thereby erred in law.

In concluding that there was nothing, which inhibited the Appellant from presenting a claim after the termination of her employment. The Tribunal acted perversely as the Appellant's evidence was that she had relied, albeit mistakenly, on advice to pursue her grievance first (paragraph 8)."

15. Aniagwu is a case in which the Tribunal below, the Employment Tribunal, was held not to have considered the chief reason which an Applicant had given for his delay, namely that he had awaited the outcome of internal disciplinary processes before going to law, and where those internal disciplinary processes had been considerably delayed by the employer. But no such assertions can be made here. The Tribunal had the Aniagwu case in mind; they expressly refer to it. There was no finding of unreasonable delay on the employer's side or in the conduct of the grievance. In Mrs Rennie's case legal advice had been taken, alerting her to the possibility of legal steps in relation to sex discrimination. There is no finding of fact that Mrs Rennie consciously and deliberately delayed presenting an IT1 until her grievance was completed; nor that she was advised that she could delay or could sensibly delay her IT1 until her grievance was completed; nor did the facts suggest that to be the case because the final stage of her grievance was made known to her, the result was given to her, on 9 April but, even so, she failed to lodge an IT1 until quite a bit later on 3 August.
16. It is important that employees should understand that Aniagwu is no general licence enabling IT1s to be safely withheld until disciplinary or grievance procedures are completed. See in that regard three recent cases of the Employment Appeal Tribunal. Dean v London Borough of Islington (Unreported – EAT/594/97); Omilaju v The London Borough of Waltham Forest (EAT/1/99) and Robinson v The Post Office (EAT/1209/99)
17. That the Employment Tribunal has a wide discretion in this area cannot be doubted. That it is easier to exercise that discretion in an Applicant's favour when the Respondent suffers no more than the inevitable prejudice of having to defend a case which otherwise would not be capable of being run against it is equally obvious. But the very width of the Employment Tribunal's discretion makes it often difficult to identify error of law. It does not suffice for us to say we would not or might not have decided as this Employment Tribunal had decided; there has to be an error of law. In a case such as this that comes down to the following, as explained as long ago as 1977 in Hutchison v Westward Television Ltd [1977] ICR 279, 282. What the EAT, under Phillips J said, is this:

"Because it is such a wide discretion conferred upon an industrial tribunal, the task which an appellant has in such a case is a heavy one. Really he must show, if he is to succeed upon appeal, that the industrial tribunal demonstrably took a wrong approach to the matter, or that they took into account facts which they ought not to have done, or that they failed to take into account facts which they should have done, or, as a last resort which is always open upon an appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed tribunal could have reached it."

18. We are not able to find, even at an arguable level, a short-coming of that seriousness and accordingly we must dismiss the appeal even at this preliminary stage.