United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR KEITH MORTON (of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS


 


MR JUSTICE BURTON: This is a series of two appeals by the Ministry of Defence against a decision of Mr Jenkinson in the Southampton Employment Tribunal in relation to an application by Mrs Bloomfield-Evans.

1. There is an issue in relation to limitation so far as Mrs Bloomfield-Evans' application is concerned. Her claim originally began against not only the Ministry of Defence but also an individual. The claim against the individual, which related to events some years ago and stretching over a period of time, was dismissed on limitation grounds by the Tribunal. So far as the Ministry of Defence is concerned, there are in essence two claims by Mrs Bloomfield-Evans. The first is on the basis that the Ministry is vicariously liable for the acts of the individual; and the second is on the basis of a failure adequately to investigate and supervise the investigation of those events. Both, of course, are on the basis that there was alleged sex discrimination.
2. The appellants, the Ministry of Defence, contended that whereas they did not challenge any suggestion that the failure to investigate was in time, the events for which they were to be held vicariously liable were out of time, as indeed, the Tribunal found in respect of the claim against the individual.
3. There was a decision by Mr Jenkinson that, notwithstanding, the dismissal of the application as against the individual, the vicarious liability claim against the Ministry of Defence should proceed. That decision, without reciting the procedural history, has been made on more than one occasion by way of original decision, clarificatory further decision, review and correction. But the end result is that, on the face of the contentions by the Ministry of Defence on this appeal, the decision of Mr Jenkinson is in tatters simply because one of the original reasons given, namely that it was necessary for the vicarious liability claim to continue in order that the full history could be looked at, appears to us not to be a necessary or sound basis for leaving in an out of time claim for compensation, because those events would, in any event, need to be looked at, so far as relevant, for the purpose of the second and surviving claim; but more significantly, because in giving a reasoned decision he prayed in aid the basis of the investigation claim which, on any basis was to survive, as being the ground for his decision to allow the survival of the vicarious liability claim. When this error was pointed out to him by Mrs Bloomfield-Evans' advisers, his reaction was to seek to amend that earlier decision under what was represented to be the slip rule. Although this is not the full hearing of the appeal, it appears to us very strongly arguable that that was something which the Chairman could not do, and that what he did only emphasised, even if he could have done it, the inadvisability of doing it; and the amendment by deletion of one sentence left the rest of the paragraph, which purported to be a conclusory paragraph, at best with a massive lacuna and, at worst, garbled and without, consequently, any reasoning left at all to what would otherwise have been his conclusion.
4. It is clearly a matter which must be dealt with speedily. Mrs Bloomfield-Evans may well have a good claim. We are not here to decide whether she does or whether she does not, but whether it is a good claim or not, it must be dealt with speedily. These procedural ups and downs are only standing in the way of the eventual decision in respect of such matters as are established not to be statute barred by the appropriate tribunal.
5. In giving leave for this appeal to be pursued, we very much hope that we are not now going to lead to a further series of ups and downs. Nothing can be done, particularly in the absence of Mrs Bloomfield-Evans and her advisers at this hearing, without consent. It appears to us that there are two ways in which this can be best dealt with. Either the appeal can, by consent, be allowed, if that is what Mrs Bloomfield-Evans is advised to do, given the very strong nature of it, and the matter can go back, as we conceive by consent, to a different Chairman to decide the question of limitation; or, this appeal can go forward and the parties can consent that the Appeal Tribunal, if persuaded otherwise to allow the appeal against Mr Jenkinson's decision as it presently stands, can then, of its own motion, decide the question of limitation itself. That too, it seems to us, would need consent, but Mr Morton has today made it quite clear that the position of the Ministry of Defence is that it does not wish to go to any more hearings than it is necessary, and would consent to the Employment Appeal Tribunal on a full appeal of this matter, not simply deciding this procedural point but deciding conclusively the question of limitation for itself. But that, as I have indicated, needs the consent, or is likely to need the consent of the Respondent, Mrs Bloomfield-Evans.
6. In those circumstances, I shall hear argument and contentions in a moment, but it seems to us that the right course will be to have relevant Notes of Evidence of the hearing on limitation, which originally took place, so as to be able to put the Employment Appeal Tribunal in the same position in making its decision as if it were a tribunal of first instance, having sat to hear the evidence.
7. The case is to be listed at Category B with a duration of one day.