United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	APPELLANT NEITHER PRESENT NOR REPRESENTED
For the Respondent	MR P T ROSE (Of Counsel) Instructed by Messrs Hammond Suddards Solicitors DX: 14347 MANCHESTER 1


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us by way of a full hearing the Appeal of Miss Sharon Delaney in the matter Delaney v Nord Anglia International Ltd. Miss Delaney has telephoned this morning, much earlier to say that she is ill and will not be attending but has invited the Employment Appeal Tribunal to proceed in her absence on the papers, which is what we do. The Respondent Nord Anglia International Ltd appears by Mr Paul Rose.
2. On 2 November 1999 Miss Delaney lodged an IT1 for sex discrimination directed, at that stage, to 2 Respondents, first, Mr Kevin McNeany and, secondly, Nord Anglia Education Plc (one has to note the word 'Education'). She claimed to have suffered sex discrimination "whilst in the employment of Nord Anglia Education".
3. In Box 11 on the IT1 which begins "Please give details of your complaint", Mr McNeany is unmentioned and his office or whatever rôle he was alleged to have taken in the matter at that stage was completely un-described.
4. On 29 November 1999 there was an IT3 from solicitors acting on behalf of the Respondent and an accompanying letter and the letter said:

"Please note that the correct Respondent in Miss Delaney's case is Nord Anglia International Limited."

I will call that company 'International' in contra-distinction to the one named in the IT1, which can be called 'Education'.

5. It is not clear at this stage in the proceedings whether Miss Delaney was employed by Education or by International but it would seem that Hammond Suddards, acting on the Respondent's side, thought that Nord Anglia International was the appropriate Respondent. The IT3 that was lodged at the same time is solely on behalf of International. Their understanding of Miss Delaney's case was very different from hers. Their IT3 begins:

"The basis of Ms Delaney's complaint is that Language Division management (Nord Anglia International) exercised sexual discrimination against her in the selection of the Enrolments Officer and in the offer of extensions to temporary contracts during the last week of August 1999. The Company's position is that:

The decisions and action taken in connection with these two events were fair and reasonable in the circumstances,

Allegations of discrimination on the grounds of sex are denied."

And then the matter is gone into more detail.

6. There was no IT3 from Mr McNeany. On 21 January 2000 the Respondent's solicitors wrote to the Employment Appeal Tribunal and they said, inter alia, this:

"For the avoidance of doubt, we confirm that we are instructed both on behalf of Nord Anglia Education Plc and Mr McNeany.

However, as we have already indicated by telephone to the Applicant, we believe that there are no grounds for Mr McNeany to be stated as a separate Respondent to the claim. Mr McNeany has had no involvement in Miss Delaney's case.

Further, no unlawful act within the meaning of the Sex Discrimination Act 1975 has been alleged against Mr McNeany by the Applicant either in the originating application or subsequent correspondence. In the Respondent's view, the mere fact that Mr McNeany is the Chairman of the Respondent Plc Company does not thereby mean that he should be liable for all acts of the Responent Company.

Accordingly, we shall make an application for him to be removed as a Respondent from the proceedings at the Directions Hearing under rule 17(2) of the Employment Tribunals Rules of Procedure 1993 on the grounds that he has not been and is not "directly interested in the subject of the originating application." (that being a citation from rule 17(2))

7. The Employment Tribunal did fix a Directions Hearing. We do not have the papers relating to it but it does seem that a Chairman directed that Miss Delaney should provide a full witness statement identifying whatever the basis was on which she alleged that Mr McNeany could be liable to her for sex discrimination.
8. On 14 March 2000 that witness statement was provided by Miss Delaney and it mentions Mr McNeany but only in a rather peripheral way. It would be best for us to set how she does seek to involve him. She says:

"Nord Anglia International Ltd's actions amount to Direct Discrimination of a female contract worker thereby breaching the Equal Opportunity Commission's Code of Practice and their own Equal Opportunity Policy. They breached the European Communities Act 1972 and Directives 75/117 and 76/207 of the Council of the European Communities. They are also in breach of the Equal Pay Act.

Mr K McNeany as Chairman of Nord Anglia Education Plc, is in breach of these acts, as he allowed his employees (Directors of Nord Anglia International) to treat me in this way, even when I requested help from him directly (See pages 28 and 29). He also allowed his Directors to breach my contract with regard to the set Grievance Procedure; the treatment I received was "neither fair nor equitable". Mr K McNeany responded to my letter as Chairman of Nord Anglia Education Plc and is therefore named as the first Respondent. As evidenced in a letter dated 13^th August to all staff of the Language Division, Mr McNeany as part of the Nord Anglia Education Group of Directors, gave Mr Pottinger his full endorsement and I quote:

"Whatever the outcome of these discussions, we are totally convinced that the direction being taken is the right one for the Division. We are also determined to make it succeed and we have the full endorsement of the Group Board of Directors" (See Mr McNeany is one of Nord Anglia Education Group Plc Directors).

Therefore not only breaching the 1975 Sex Discrimination Act, but also the Employment Rights Act 1996.

He did not see fit to respond to the IT1, or the SD74, sent to him and I have previously requested that the Tribunal do not allow him to now defend the application

Therefore I have named two 2 Respondents:-

(i) Mr K McNeany as Chairman of Nord Anglia Education Plc

and

(ii) Nord Anglia International Ltd itself (vicarious liability)

as represented by its officers."

And then she sets them out, at the head of which is Mr McNeany – Chairman of Nord Anglia International.

9. It is not a short document and she refers to Mr McNeany again later where she says:

"At the first meeting on 23^rd September, (and this is a grievance meeting) we had agreed that he and only one member of personnel would be present (see letter confirming my attendance) to discuss my grievance.

However, at this first stage meeting Mr Pottinger breached this agreement by allowing Mr Schembri and Mr Oliveira to attend part of the meeting. Both men made false statements and I requested Mr Pottinger to ask them to leave if they were going to continue making false unsupported statements. I contacted Mr McNeany to complain about this unfair treatment (see pg 28) but his response indicated he was going to allow them to continue treating me unfairly (see pg 29)."

In a summary at the foot Miss Delaney says:

"Mr McNeany has not attempted to defend his actions and is now, on the face of it, and according to the Tribunal's Rules of Procedures not allowed to defend his actions which served to allow this discriminatory behaviour to continue."

10. The letters that were there referred to we have been supplied with and the first is a letter from Miss Delaney to Mr McNeany of 26 September that begins by saying that she was disappointed that Mr McNeany and Mr Johnson have refused to speak to her after an earlier meeting which was a grievance meeting. It is not suggested that Mr McNeany had been at the earlier meeting and she is plainly a person disappointed with the way the grievance procedure was going. But all that Mr McNeany says in his brief reply is this. It is dated 28 September 1999:

"Thank you for your letter of 26^th September.

I did not return your calls nor do I think it appropriate to speak to you at the moment.

As you point out, the Company's Grievance Procedure is in operation and it is not appropriate for me to intervene at this stage.

The Company has an Equal Opportunities Policy and the Grievance Procedure is robust. I believe that, if you have a grievance, you will receive a fair and equitable hearing."

11. The grievance procedure is not, in fact, in front of us but we have no reason to believe other than that the Chairman had no role in it at the time that he was invited to have a role in it in the way that Miss Delaney suggested in her first letter and no reason to think that he was other than right to respond as he did, in the second of the letters, allowing the grievance procedure to proceed according to its terms.
12. The question of whether Mr McNeany should be a party having been raised, there was a hearing on 27 April at the Employment Tribunal and on 5 May Summary Reasons were given. There must have been a request for Extended Reasons and on 30 June 2000 the Tribunal gave its extended reasons. It was the decision of the Tribunal at Manchester under the Chairmanship of Mr M E Coles and they said:

"The unanimous decision of the Tribunal is that:-

i) the first respondent Mr Kevin J McNeany be dismissed from these proceedings."

13. On 28 June Notice of Appeal was lodged against that decision and so far as relevant to this part of the case the grounds were as follows:

"Denied me the opportunity to further my argument by letter/in writing which they are legally obliged to do, as in the Rules and Procedures.

Mr Coles (that is the Chairman) did not understand who the actual respondent was - even though it is clearly stated on my Originating Application. I have never stated that Mr McNeany was personally liable. I have always maintained his responsibility was as Chairman of Nord Anglia Education & Nord Anglia International.

Mr Coles tried to discourage me from appealing his decision saying that "it would not get me anywhere."

There were procedural irregularities as the Respondent didn't have to give evidence and it was as if I was under investigation and not the Respondent.

The hearing was over in 30 minutes flat and the Panel were not prepared to hear my evidence.

I would like to request a copy of the handwritten notes, made by the Chairman."

14. On 3 July the Tribunal began a hearing on the merits. It lasted until 6 July in front of a different Panel at Manchester and on 28 July the decision of that full Merits Hearing was sent to the parties. Of course, by now the case was simply Delaney v International and the decision, which was of the Tribunal at Manchester under the Chairmanship of Mr Russell sitting with Mr P E Bell and Ms S J Ensall, was:

"The unanimous decision of the Tribunal is that the applicant was not discriminated against in breach of the Sex Discrimination Act 1975."

15. That is subject to a quite separate Appeal. In the course of that the Tribunal hold that it was International that was the employer of Miss Delaney and that the employment ended on 31 August 1999. On 28 March 2001 the Respondent, International, answered the Notice of Appeal and the matter came before the Employment Appeal Tribunal by way of Preliminary Hearing. The bias or prejudice or misconduct side of things, to so describe it, was not permitted to come to a full hearing but questions in relation to the law in relation to Rule 17(2) and the joinder or non- joinder of Mr McNeany was permitted to come to a full hearing and this is that full hearing.
16. This, of course, is what one might call a pleading point. Their facts were not investigated on 27 April; it was not appropriate that they should be. It was a question of looking at the nature of the allegations made against Mr McNeany. The Employment Tribunal was not at that stage concerned with whether they were in fact true allegations but to see what it was that was alleged. It would be as well for us to remind ourselves of the terms of the relevant statutory provisions which are of great width.
17. Section 39 of the Sex Discrimination Act 1975 says this:

"It is unlawful for a person -

(a) who has authority over another person or

(b) in accordance with whose wishes that other person who is accustomed to act, to instruct him to do any act which is unlawful by virtue of Part II or Part III, or procure or attemptt to procure the doing by him of any such act."

18. We cannot read the matters describing Mr McNeany's role as involving him in giving instruction to do any thing unlawful nor the procuring or attempt to procure doing him anything unlawful. To allow something is not generally to procure it, unless, at any rate, the person concerned has a power to stop whatever is in issue. A Chairman of directors generally has no particular power beyond the position of a casting vote at board level although, no doubt, in practice a rather more broad power is exercised. Nor can it be said that the Directors in International were his employees; of course, they were not. Nor was it the case that Education, which is the Company in the capacity of being a director of which Mr McNeany was chiefly sued or attempted to be sued, was even Miss Delaney's employer.
19. Moreover, what is alleged to have been allowed is a breach of contract, something which, without more, is not susceptible to attack as being an act of sex discrimination. Moving on to Section 40 it is headed 'Pressure to Discriminate'

(1) It is unlawful to induce, or attempt to induce, a person to do any act which contravenes Part II or Part III by -

(a) providing or offering to provide him with any benefit, or

(b) subjecting or threatening to subject him to any detriment.

2. An offer or threat is not prevented from falling within subsection (1) because it is not made directly to the person in question, if it is made in such a way that he is likely to hear of it"

There is nothing that seems to give rise to anything within Section 40. In any event Mr Rose reminds me that only the Commission can deploy sections 39 and 40 – see section 72.

20. Section 41 says:

"Liability of employers and principals

(1) Anything done by a person in the course of his employment shall be treated for the purposes of this act has done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.

(2). Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person should be treated for the purposes of this Act is done by another person as well as by him.

3. In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description."

21. Under Section 41 subsection (1), coupled with International's concession, which it had made in this case, International will be liable for anything relevant done by Mr McNeany in the course of his employment. There has never been any challenge to that being applicable. Under Section 41(2) the Company can be liable for its agent's acts. Section 41(3) is simply a defence and irrelevant at this stage.
22. Section 42 is headed:

"Aiding unlawful acts

(1) A person who knowingly aids another person to do an act made unlawful by this Act should be treated for the purposes of this act as himself doing an unlawful act of the like description.

(2) For the purposes of subsection (1) an employee or agent for whose act the employer or principal is liable under Section 41 (or would be so liable but for Section 41(3)) shall be deemed to aid the doing of the act by the employer or principal.

(3) A person does not under this section knowingly aid another to do an unlawful act if -

(a) he acts in reliance on a statement made to him by that other person that, by reason of any provision of this Act, the act which he aids would not be unlawful, and

(b) it is reasonable for him to rely on the statement."

And there is a sub section (4) which we do not need to read.

23. So, the position is that if there is some act of an employee for which the employer is liable under Section 41(1) then the employee should be deemed to have aided the employer in relation that act. But, and this is an important 'But', merely to be described as aiding does not of itself suffice because Section 42(1) requires a person knowingly to aid in the unlawful act.
24. In principle it seems to us that Mr McNeany may be vulnerable as knowingly aiding International to do the discriminatory act alleged. It is surely possible for a Chairman or a Director or a Line Manager or anyone not to have intervened to assist a woman in a situation in which he would have intervened to assist a man and that that would amount, therefore, to some form of sex discrimination. So, in principle, Mr McNeany could be made vulnerable as knowingly aiding International to do some discriminatory act that he was deemed to have assisted in.
25. But when one looks at precisely what was alleged against him it really comes down only to those letters which we have already read. There is, of course, a danger that parties are added as individuals to IT1s merely to cause embarrassment or perhaps to serve as a lever to effect some better offer from the employer, if only to avoid the waste of executive time, be it that of the Chairman or anyone down to the foreman.
26. Here, the role of the individual who happened to be Chairman seems to have been limited to being written to by Miss Delaney in the manner that we have indicated and writing back, as, again, we have indicated. He was not completely remote from the events because he was involved to that extent. Looking then, on that basis, to Rule 17(2), that says under the broad heading 'Joinder and Representative Respondent':

"A Tribunal may likewise on such application or of its own motion or that any respondent named in the Originating Application or subsequently added who appears to the Tribunal not to have been or to have ceased to be directly interested in the subject of the Originating Application be dismissed from the proceedings."

It is obviously important, and the breadth of the sections which we have read out show that Parliament intended that it is important, that there should be broad access to Respondents. Broadly speaking a complainant making an IT1 as a very broad range of persons who can be complained about and we would not wish to say anything that in any way narrowed the ability of a claimant to choose his or her Respondent's or he or she was advised or thought fit. But, against that breadth, one has to ask the question, 'Could it have appeared to an Employment Tribunal, properly instructing itself, particularly properly instructing itself on the basis of the sections we have read, that Mr McNeany was not directly interested in the subject of the Originating Application?' Our answer to that is 'No; that could not have appeared to a Tribunal properly instructing itself.' To that extent the Employment Tribunal here was wrong in our view, and it is significant, perhaps, that it made no mention whatsoever of Sections 41 and 42.

27. But that is not an end of the matter because the fact that the Tribunal got it wrong at the initial stage is, of course, of great significance at the appeal stage but there is no rule of law that suggests that because the Tribunal got it wrong at the initial stage the Appeal Tribunal necessarily has to grant whatever relief the Appellant seeks.
28. Here, there was an inquiry made of the Chairman because how the initial hearing was conducted was put in issue by Miss Delaney and the subject of what exactly happened at the hearing was dealt with by the Chairman responding in a letter of 25 August 2000. It says inter alia:-

"Mr McNeany was, at all material times, the Chairman of the respondents Nord Anglia International Ltd but was also the Chairman of that company's holding company, Nord Anglia Education Plc."

A little later:

"Prior to the hearing on 27 April 2000, the members of the Tribunal read the appellant's witness statement dated 14 March 2000. It was clear that the complaints made against Mr McNeany by the appellant were as follows:-

a) that he allowed his employees (Directors of Nord Anglia International Limited) to treat her in a discriminatory way, and

b) that when she approached him for assistance, he did not respond in a way that she regarded as satisfactory.

The appellant was asked whether she had anything further to add in support of her contentions other than what was contained in her statement. Other than reiterating that Mr McNeany as Chairman of both companies was responsible for the actions of his employees, she could add nothing further of significance. I accept that the hearing was relatively short because there was very little that needed to be said. The appellant has asked that my notes be made available. They comprise one page only. Apart from identifying the persons present and recording the Tribunal's decision, the only words appearing in my notes are as follows:-

"Applicant was asked by Tribunal what was to be gained by leaving Mr McNeany as a respondent or what possible detriment she might suffer if he was dismissed from the proceedings. She could not give a satisfactory answer."

It must be remembered that the solicitor for the respondents had confirmed that they would be vicariously responsible for any act of discrimination that may be established against Mr McNeany. I was conscious of the fact that this case had already been listed for hearing. I emphasised to the appellant that, instead of continuing to argue the unnecessary point about whether or not Mr McNeany should be a respondent, she should concentrate on the material issues involved, namely whether or not she was discriminated against on the grounds of her sex by the members of management she had identified and simply get on with the case. In what I hope would be regarded as a colloquial expression which was in no way intended to cause offence, I did in fact say that I thought she was "barking at the wrong tree" by reason of her preoccupation with Mr McNeany being a party to the proceedings as opposed to the material issues in the case. I personally do not regard the expression as in any way offensive or inappropriate and it was not said in any aggressive or irritable manner."

A little later he adds:

"I would also add that that I did, of course, understand that Mr McNeany was Chairman of a subsidiary and a holding company and that the appellant was seeking to address Mr McNeany's responsibilities as Chairman of the holding company. However neither I nor the other members of the Tribunal could see any justifiable reason why they should make any difference to the question of whether he should be personally a party to the proceedings, when the respondent's solicitors acknowledged that vicarious liability was unequivocally accepted for any actions on his part."

29. And accordingly, the Tribunal moved towards a merits hearing , 4 days in July as I have mentioned, before a different Tribunal and the matter, of course, proceeded in the absence of Mr McNeany. On 31 July that decision was sent to the parties, as I have already mentioned. Mr McNeany had not given evidence at the merits hearing. The Employment Tribunal dealt in very full detail with Miss Delaney's complaints.
30. So far as concerns the period of time as to which any act or emission of Mr McNeany was relevant they said this:

"7. We make the yet further findings of fact on the balance of probabilities namely –

a) The applicant's employment with the respondent terminated upon the expiry of her temporary contract on 31 August 1999. We find such employment would have terminated irrespective of whether the reorganisation had been taking place or not. Before leaving her employment the applicant raised a grievance by her letter of 27 August 1999 to Mr Ritchbell, the respondent's Personnel Manager. She also wrote to Mr Johnson on 3 September 1999 about her grievance.

b) The applicant's grievance was dealt with by the respondent notwithstanding that her employment ended on 31 August 1999. It is abundantly clear from reading the bundle of documents and listening to the evidence that a considerable amount of time and effort was spent by the respondent in dealing with the applicant's grievance.

c) The respondent's grievance procedure is set out in the applicant's written particulars. From reading this document we are satisfied that the procedure is included for information purposes and it does not form part of the contract of employment.

d) The grievance procedure has three stages."

And then they are explained. Later the Tribunal at that merits hearing said:

"k) In between the grievance hearings before Mr Pottinger and Mr Johnson the applicant wrote to Mr McNeany on 26 September 1999. Mr McNeany is the respondent's Chairman and he is also Chairman of the respondent's parent company. By his reply of 28 September 1999 Mr McNeany stated that it was not appropriate for him to intervene and he added that he believed that if the applicant had a grievance she would receive a fair and equitable hearing. The respondent's grievance procedure does not provide for a right for a meeting with the Chairman but rather it provides that the final grievance hearing should be before the managing director who was Mr Johnson."

31. And then at the end of their decision they said this:

"At the outset of the hearing we were informed that the applicant had appealed or intended to appeal to the Employment Appeal Tribunal the decision made by a different Tribunal on 27 April 2000 whereby Mr McNeany was dismissed as a second respondent to these proceedings. Initially the applicant did not invite us to adjourn the present hearing to await the outcome of her appeal but she then reconsidered the matter and invited us to do so. The respondent opposed the application. In the interests of justice we decided that it would not be appropriate for us to adjourn the hearing. We took the view that there was little if any merit in the appeal. In particular we had regard to the fact that Mr McNeany's only involvement in this case was his decision not to interfere in the grievance procedure and in circumstances where the procedure itself provided that stage 3 of the grievance should be dealt with by the Managing Director as opposed to by the Chairman. Having heard the evidence in this case we consider that our decision to continue with the hearing was vindicated because during the hearing the applicant raised no allegations about Mr McNeany and notwithstanding the fact that the respondent had earlier conceded that it would be vicariously liable for any act of discrimination committed by him."

32. So, in the event the Employment Tribunal did investigate Miss Delaney's complaint so far as it related to or touched Mr McNeany. No part seems to have been played by him save for his receipt of and answer to the letters which we have mentioned. It would seem that oral evidence from him would very probably have added nothing whatsoever to Miss Delaney's case nor would have weakened International's case and in any event, of course, adding him as a party would not guarantee his giving oral or, indeed, any other evidence. Miss Delaney, had she regarded his evidence as of real significance, could have required a witness order to be made against him, but that does not seem to have been sought.
33. We revert also to the question that we mentioned earlier as having been put by the Tribunal appeal against which we are concerned with, as follows, "Applicant was asked by Tribunal what was to be gained by leaving Mr McNeany as a respondent or what possible detriment she might suffer if he was dismissed from the proceedings"; she could not give a satisfactory answer.
34. We can see no practical disadvantage to Miss Delaney or forensic advantage to International in Mr McNeany not being a party. We cannot see how his being a party could possibly have affected the result of the merits hearing that in the event went ahead. Nor is it a case where adding a party would add another person from whom recovery could be made because, as it happened, the Tribunal went ahead and the merits hearing ordered that there should be no recovery at all and so adding another string to the bow for recovery purposes has no materiality here.
35. In those circumstances it seems to us it would be entirely disproportionate to set aside the Employment Tribunal's decision to delete Mr McNeany as a party even though, as we have mentioned, we are of the view that the Employment Tribunal was wrong in law to do as they did. We have to consider, when we come to grant relief, the notion of proportionality. If Mr McNeany had to be added as a party retrospectively then the case would, in effect, have to be re-thought all over again in his nominal presence as a party. And yet if one asks what would the enormous expense and the considerable delays inherent in that do, what would they contribute to the justice of the case, one can answer only absolutely nothing.
36. Even now, if she feels aggrieved, Miss Delaney could in theory apply for Mr McNeany's joinder under Rule 17(1) coupled with Rule 15 and, if, on the merits hearing appeal going forward, she has a success in the sense that it is remitted for a fresh hearing then, again, she could apply for Mr McNeany's joinder even at that late stage. We certainly do not encourage such application but it is technically possible. But we feel there is no rule which obliges us, on detecting error of law in the decision below, that inevitably requires us to set about granting a form of relief which would lead nowhere except to a considerable waste of money and time.
37. Thus, notwithstanding that we recognise the defect in the Employment Tribunal's decision at law, we are not disposed to grant the relief of setting aside the decision below and requiring that Mr McNeany should be joined. That, as it seems to us, would be entirely disproportionate and, indeed, quite pointless and accordingly, notwithstanding having detected error in the decision below, we will dismiss the appeal.