United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D CLARK Representative IRPC Group Ltd Stockwell House New Buildings Hinckley Leicestershire LE10 1HW
For the Respondent	MS HELEN GOWER, (of Counsel) Messrs Hancock Caffin Solicitors (DX-81200 TRURO) Princes House Truro Cornwall TR1 2EY


 


JUDGE COLLINS:

1. This is an appeal against the decision of an employment tribunal sitting at Truro whose extended reasons were promulgated on 28 April 1999. By their decision the tribunal held by a majority that the respondent's claims under the Sex Discrimination Act 1975 and her claim for unfair dismissal were both made within three months of the termination of her employment, although they stayed the claim for unfair dismissal pending the decision of the House of Lords in R v Secretary of State for Employment ex parte Seymour-Smith and Perez(No.2) 2000 IRLR 263. The respondent had not been employed by the appellants for two years and the claim for unfair dismissal is only relevant in the context of ascertaining the date of termination of the respondent's employment. Ms Gower who appears for her accepts that the only live claim which she has today is her claim under the Sex Discrimination Act.
2. The originating application was presented to the employment tribunal on 18 February 1999; accordingly all matters of complaint arising before 19 November 1999 would be inadmissible, subject to the discretion of the tribunal to decide that it was just and equitable in all the circumstances to extend the time. In the present case, the respondent's allegations are best summarised in Ms Gower's skeleton argument. At paragraph 10 she states: -

"The "act complained of" by the Respondent was therefore the act of failure to investigate properly and dismissing her complaint."

3. Her initial complaint was that she had been sexually harassed by and discriminated against by Mr Osborn and as the tribunal notes in their extended reasons those allegations were made to Mr Adamson of the appellants on 9 November. The appellants investigated them but it was not until 30 November that they wrote to her stating that they had decided that there were no grounds for her complaint. The majority of the tribunal held that her complaint was in time because her employment did not terminate until that same date - 30 November.
4. The questions, which arise for determination on this appeal, are:

(i) Was the majority correct in deciding that the respondent's employment terminated on 30 November?

If we conclude that the majority of the tribunal were wrong in coming to that conclusion:

(ii) Does the respondent have a free standing claim under the Sex Discrimination Act 1975, made in time, in relation to matters occurring after 19 November 1998, even though she had then ceased to be an employee?

5. The First Question

A disciplinary hearing took place on 12 October 1998 at which allegations of misconduct in relation to her behaviour towards customers was made against the respondent. On 15 October Mr Osborn, the centre manager against whom she made her allegations of harassment, wrote a letter in these terms, so far as are material:

"I am writing to confirm the decision taken at our formal disciplinary hearing for misconduct conducted on 12 October 1998. Under your contract of employment, you are entitled to one weeks notice which you will not be required to work the amount owing being £602.00 less tax and national insurance or monies due to you along with your P45 should be forward [sic] in line with normal pay process. You do have the right of appeal against this decision to dismiss, should you wish to do so, you should submit that appeal to Gary Adamson, General Manager within 7 days from the date of receipt of this letter."

6. An appeal did take place in accordance with the suggestion made and by a letter, undated, but which we shall assume was sent on 30 November since that is the date which appears to have been accepted by the tribunal, Mr Adamson the general manager wrote to the respondent in these terms: -

"Following your appeal against your dismissal having investigated the events the company has found there was sufficient grounds to dismiss and therefore the decision stands."

7. The majority of the tribunal at paragraph 4 of the extended reasons finds as follows: -

"Mrs Cook and Mr Dunstan find that the effective date of termination is 30 November which is the date of the letter. They say this on the basis that the letter of 15 October says that the sanction was dismissal but no date was given. The only date given is the letter of 30 November.".

They interpret any ambiguity in the respondent's favour. The Chairman, Mr Puttick, dissented from that view; he found that at the disciplinary hearing of 15 October the respondent was dismissed on one week's notice and that therefore the effective date of termination was 22 October.

8. We have no hesitation in coming to the conclusion that the majority misdirected themselves. The letter of 15 October in our judgment is abundantly clear save in one possible respect, namely whether the one week's notice is to run from the date of the formal disciplinary hearing on 12 October or from the date of the letter. But it is a letter either recording a dismissal three days earlier or a letter of dismissal itself and confirming or giving one week's notice. The reference to the respondent not being required to work out the week is corroboration of that analysis. In our judgment it is impossible to read the letter of 15 October as providing any date for termination of the respondent's employment later than 22 October 1998.
9. That means that the complaint relating to the failure to investigate her allegation of sexual discrimination adequately was out of time unless it was a freestanding complaint under the 1975 Act. It arises from another letter written on 30 November 1998 by Mr Adamson to the respondent, referring to the allegations made against Mr Osborn on 9 November It records that the appellants had carried out a full and thorough investigation and that the allegation was unsubstantiated. Mr Clark on behalf of the appellants accepts that a failure to vindicate a justified complaint of sexual discrimination could amount to a detriment for the purposes of the Act.
10. The Second Question

The question between the parties is whether or not this alleged discrimination is capable of giving rise to a claim under the Sex Discrimination Act 1975. S.6 (2) provides:

"It is unlawful for a person in the case of a woman employed by him at an establishment in Great Britain to discriminate against her by dismissing her or subjecting her to any other detriment."

11. For the purposes of this case does the expression 'a woman employed by him' mean a woman employed by him at the time of the act of discrimination or does it apply equally to the case of a woman who was employed by him but was not so employed at the time when the discriminatory act took place?
12. Ms Gower's submission depends upon a reading of the judgment of this tribunal in Coote v Granada Hospitality Ltd No 2 [1999] IRLR 452 delivered by Morison J. The facts were that Mrs Coote brought a sex discrimination complaint, which was settled. Thereafter she applied for a reference and the employers failed to give her one. She claimed that she was unlawfully victimised contrary to S.4 Sex Discrimination Act 1975 and that the employers had failed to give her a reference because she had previously brought a sex discrimination claim. The difficulty which this tribunal encountered was that in the case of Adekeye v The Post Office No 2 [1997] IRLR 105 the Court of Appeal, in construing parallel provisions of the Race Relations Act 1976, determined that that Act did not protect a person who was no longer an employee at the time the discriminatory conduct took place. Morison J. pointed out that when the Sex Discrimination Act and the Race Relations Act were enacted they were intended to provide equal protection to employees. But in the Coote case this tribunal had made a reference to the European Court of Justice asking for guidance as to the requirements of Council Directive 76/207/EEC, the Equal Treatment Directive. As Morison J. records, the advice given by the European Court to national courts was that:-

"The principle of effective judicial control laid down in Article 6 would be deprived of an essential part of its effectiveness if the protection it provides did not cover measures which as in the proceedings in this case, an employer might take as a reaction to legal proceedings brought by an employee, with the aim of enforcing compliance with the principle of equal treatment. Fear of such measures where no legal remedy is available against them might deter workers who considered themselves the victims of discrimination from pursuing their claims by judicial process and would consequently be liable to seriously jeopardise implementation of the aim pursued by the directive.

13. In those circumstances, this tribunal held that although it disagreed with the reasoning of the Court of Appeal in Adekeye v The Post Office it would loyally follow it in any case where it applied. But it went on to hold that in the case before it, it was trumped by the decision of the European Court of Justice which had the effect that in relation to claims of victimisation the expression 'a woman employed by him' in the 1975 act could also mean 'a woman who was employed by him'. At paragraph 18 Morison J. records the Court of Appeal's acceptance in Adekeye v The Post Office that as a matter of grammar the phrase is capable of being interpreted in that way.
14. Now Ms Gower has argued that the effect of the decision in Coote is to take claims under the Sex Discrimination Act out of the ambit of the reasoning in Adekeye v The Post Office decision altogether. We disagree. In our judgment the effect of the Coote case is to depart from the Adekeye v The Post Office reasoning in cases where the allegation is one of victimisation under S.4 Sex Discrimination Act, for the reasons given by the European Court of Justice. But in other cases, such as the present one, we ought to follow the decision of the Court of Appeal in Adekeye v The Post Office. What that means is that the 30 November letter dealing with the respondent's claim does not found an independent cause of action under the Sex Discrimination Act. For that reason, the question of whether or not it was in time does not arise and we allow the appeal accordingly.
15. PERMISSION TO APPEAL
16. We have allowed the appeal; the effect is to put an end to the claim of sex discrimination. Our decision depends upon the proper construction of the Sex Discrimination 1975 in the light of the Coote case. It is a point of general application. We see that Ms Gower has an argument and we think she should, if she decides to she wants to do so, have the right to ventilate it in the Court of Appeal. So we give permission to appeal.