United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M GRIFFITHS Instructed by Messrs Olswang 90 Long Acre London WC2E 9TT


 


JUDGE ALTMAN

1. This is an Appeal from the decision of the Employment Tribunal sitting at Stratford on 11 April 2000. It comes before us by way of Preliminary Hearing to determine if there is a point of law capable of argument in full before the Employment Appeal Tribunal. The complaint before the Employment Tribunal which still remains to be resolved is of unfair dismissal and of sex discrimination and harassment.
2. The issue before the Employment Tribunal which gives rise to this Appeal is their determination that the claim of sexual discrimination and harassment is in time. There is an appeal based on the proposition that the acts complained of are clearly specified in the originating application and took place more than 3 months before the originating application.
3. There is no dispute for the purpose of this appeal that the effective date of the termination of the Respondent's employment was 6 September 1999 and the date of presentation of the complaint was 5 December 1999. Accordingly, if that effective date of termination is arguably part of the allegation of discrimination, the complaint is in time. If it is not the complaint is out of time in relation to sex discrimination and harassment.
4. The allegation of unfair dismissal is based on a constructive dismissal alleged to be related to the way in which the Respondent was treated about being demoted, her duties transferred to other members of staff, her assignment which on the face of it appears in itself to be a continuing act. There is also complaint that there is a failure in spite of requests to provide any adequate explanation and there is an allegation of abusive behaviour.
5. All those were set out in paragraph 23 of the originating application as instances of the fundamental breach of the contract of employment with the Respondent but no doubt also possibly as being a breach of the fundamental term of the contract of employment to maintain trust and confidence.
6. When on its face the originating application comes to deal with the allegation of harassment and discrimination it is referred to, in paragraph 24, as being related to Mr Fenwick's harassment and intimidatary behaviour. This is, on the face of it, particularised in the originating application as having occurred at a time which if that was all under this head would make the complaint of discrimination out of time.
7. However, in paragraph 25 it does seem that there is a little ambiguity as to the area of conduct being referred to. In the decision of the Employment Tribunal, in dealing with the time limits in a broad and all encompassing way in paragraph 9 of the decision other matters appear to be thought by the Chairman to be related to the sex discrimination claim and not just those instances relating to Mr Fenwick. The more so it seems to us, is this the case, as there is reference to an authority which may or may not in fact be relevant which is a race relation discrimination case.
8. It seems to us therefore that there is a point of law, which merits argument. Was the last act complained of the effective date of termination or an earlier date? Were the acts complained of single acts, or a course of conduct which continued throughout employment? There is a subsidiary question as to whether, when on a preliminary hearing a claim is struck out and subsequent particulars of evidence clarify the claim so as to make it potentially in time, the claim can be revived. Should the matter be dealt with by way of stay?
9. This will be listed in Category C. Period of 2 hours. Skeleton arguments to be furnished not less than 2 weeks before the hearing.