United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS JANE McCAFFERTY (Of Counsel) Instructed by Staffordshire County Council Central Services PO ox 11 County Buildings Martin Street Staffordshire Staffs ST16 2LH
For the Respondent	MISS HENRIETTA HILL (Of Counsel) Instructed by Messrs Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us the full hearing of the appeal of Mrs D Mahon in the matter of Mahon v Staffordshire Policy Authority and we have had a well informed argument from Miss McCafferty for the Appellant Policy Authority and from Miss Hill for the Applicant below, Respondent before us, Mrs Mahon.
2. In August 2000 Mrs Mahon presented an IT1 for unfair dismissal and sex discrimination. Her employment had ceased in May 1977, over 23 years before, and, hardly surprisingly therefore, the point was taken that her complaint was out of time.
3. A preliminary hearing was arranged and took place on 31 July 2001. The decision was sent to the parties on 22 August 2001 and the decision was this - it was the decision of the Tribunal at Birmingham under the chairmanship of Mr Derek Mellor - and it says, so far as relevant:

"It is the unanimous decision of the tribunal:

(a) that it cannot consider the Applicant's claim of unfair dismissal as this was brought many years after the termination of her contract of employment and she has not shown that it was not reasonably practicable for her to have presented a complaint within three months of that event;

(b) that it would nevertheless be just and equitable in the special circumstances of this case to allow the Applicant's complaint of sex discrimination to be considered out of time;"

4. Mrs Mahon does not appeal the case as to unfair dismissal but the Police does appeal the case as to sex discrimination. The 1975 Act requires proceedings under it to be launched within 3 months of the act complained of – see section 76(1). The act complained of here as sexually discriminatory by way of being less favourable treatment seems to be that Mrs Mahon was asked to resign on telling the Authority of her pregnancy and that she therefore suffered a loss of pension, she having later revived her employment with the Staffordshire Police Authority. She told her superior in the Police of her pregnancy in April 1977 and she says that she was told orally that she would have to resign. She identifies individuals who spoke to her on the point, namely Cooke, Shenton and Maskery. Mrs Mahon, recognising, of course, that she was comprehensively out of time, sought to invoke Section 76(5) which says:

"A Court or a Tribunal may nevertheless consider any such complaint, claim or application which is out of time if in all the circumstances of the case it considers that it is just and equitable to do so."

5. This does not seem to us, at any rate, to be one of those cases where, because of the changes in community law or a different understanding from time to time of community law, it has been found that some domestic provision of our own law had proved inadequate and that it would therefore be difficult in such circumstances to ascribe to any Applicant, even one receiving advice, an awareness that he or she could bring the claim. It is not, as it seems to us, that sort of case.
6. Those cases are difficult but here, in the absence of that sort of consideration, one can expect fairly compelling special circumstances to have been found by the Tribunal as supporting its conclusion that it was just and equitable to allow the claim to proceed after so long an absence.
7. The Tribunal rightly said:

"In particular, the tribunal must consider all the circumstances when assessing what might be just and equitable (Section 76(3) of the Sex Discrimination Act 1975). These would include prejudice to either party, length of delay, reasons for delay, effect of delay on the cogency of evidence, and steps taken by the parties to obtain professional advice."

And that, rightly, should be borne in mind although in fact it is not described by the Tribunal in that passage as what they had in mind but rather, as it would seem, their description of a submission of one or other of the parties.

8. Under the heading 'THE LAW' the Tribunal says:

"There is little in case law to give general guidance to Tribunals as to the parameters of their discretion in considering complaints out of time where they believe that it is just and equitable to do so. They must avoid perversity but, that apart, the matter is a question of fact."

And there are a number of authorities that we need not go to but which emphasise that the finding of fact is an important area of this type of case. The Tribunal said they had had regard to a list of factors set out in Harvey. They say, under the heading "Full Reasons for the Tribunal's decision" that "In coming to its decision the Tribunal had had regard to the "non- exhaustive list of factors set out on pages L174-5…"in a passage in Harvey, but without their actually setting out what those factors are.

9. What are the facts found by the Employment Tribunal? It is perhaps easier to say what was not found. Would there be prejudice to Mrs Mahon if she was denied an ability to pursue her claim? Would there, in fact, be some lower pension payable to her and, if so, what sort of loss would she be likely to incur if her case was proven? There was no finding on that subject. Would there be any prejudice to the Police that could be identified? For example, would it be that such, if any, oral evidence as would be required to be given or which could have been available earlier if the proceedings had been launched earlier had become unavailable after a lapse of time or perhaps impaired by the lack of time? There is no finding on that subject. Were there contemporary documents that related to the resignation. There is no finding on that subject. What - and surely this would be an important question - what precisely was the reason for the delay over so long a period? There is no finding as to that. Again, a very important question, was a fair trial still possible? Was it the sort of case where the available documents virtually decided the case and that there could be no question but that they were available and that they made a clear case one way or another? There is no finding on any such issue. Was it the sort of case where oral evidence would only be the minimal, again there is no finding on any such subject. It has been hinted that possibly regulations which were in mind at the time could be ultra vires. Was that the case? There is no answer to be found; it is hard to discover what the case should have been in the point but there is certainly no finding on that.
10. Mrs Mahon's witness statement or one exactly like it is dated 26 November 1997 and proceedings were not issued for quite a period after that. Why was that so? Why was the IT1 not lodged until August 2000? There is no finding on that. Did one not have therefore to divide the delay, as Miss McCafferty urges, between the delay from the original events in 1977 down to 1997 (when the witness statement was available) and then looking at the separate subsequent period from 1997 down to the issue of the IT1? What steps were taken by Mrs Mahon to take advice? What advice did she receive, from whom and when and what was the result of such advice?
11. There are, in other words, a number of important topics which one could reasonably expect to have come out by way of findings of fact but which seem to have gone without any finding being made. In the absence of clear findings, why was it that the Tribunal thought it was just and equitable for the claim received?
12. Under the heading, again, of "Full Reasons for the Tribunal's decision" they say:

"We concluded that, withstanding the abnormally great length of time between 1977 and 2001, (and one pauses there to say that they did not distinguish between the parts of the period) it would be just and equitable for the Applicant to have the opportunity to present her case as a complaint of sex discrimination only. It is the tribunal's considered view that any difficulties of cogency of evidence after this time lapse should not prevail against an opportunity to re-examine the circumstances of the Applicant's dismissal or resignation in 1977, and the fact that she may have no other remedy for the loss she claims to have suffered as a consequence of the termination of her contract."

A little later they say:

"The Tribunal did not consider that the subsequent conduct of the parties, who entered into a further contract of employment which has continued over 20 years, or any other factors should preclude the pursuit of proceedings. We see no reason why the matter should not be pursued in good faith and believe that this would be in the interests of justice and equity.

In making this decision, the Tribunal passes no comment on the evidence produced in relation to the substantive case, and in no way predicts the outcome of the those proceedings. We do, however, believe that in the special circumstances of this case, and hearing in mind attitudinal changes in the last twenty-five years, it is just and equitable for this particular matter, which we recognize as exceptional, to be heard."

13. Whether or whether not some difficulties of cogency of evidence exist, is it good enough simply to say that any difficulties of cogency of evidence should not prevail? Miss McCafferty says that that is tantamount to a finding that the case should go to a hearing even if a fair trial is no longer possible. There is a danger of conflict with authority produced to us, such as the Transco case which the Employment Appeal Tribunal delivered on 31 January 2001. There is in fact no finding as to what, if any, difficulties as to cogency of evidence were in the Tribunal's mind as a finding of fact. Moreover, that passage that we quoted said:

"And the fact that she may have no other remedy for the loss she claims."

But did she or did she not have no other remedy? There was no finding on that. Why was 'good faith' mentioned in the passage that we have cited? It seems noone had put it in issue and what is its significance? Then, in the reference "We do, however, believe that in the special circumstances of this case", what special circumstances had the Tribunal had in mind? There is no finding of fact as to special circumstances described as such by the Tribunal. One cannot be sure what, therefore, they had in mind as special circumstances. What are the attitudinal changes which were there referred to? There is no finding of fact as to that; indeed, there is a particular doubt in relation to the attitudinal changes because so far as one can tell from the heading "Representations of the parties" there were no representations as to attitudinal changes. There was no suggestion that there was evidence given on the subject either. So it looks, at first blush, as if the reference to attitudinal changes is not only unexplained but is an unexplained reference to something that the Tribunal itself plucked out of the air.

14. The Police, as it seems to us, can fairly say that the familiar Meek v City of Birmingham test is not here satisfied. They cannot see why they lost because of special circumstances which were never adequately explained and without any adequate basis of fact being found. The Appellant, by Miss McCafferty, has other arguments, one, in particular, being that the very fact that there was no finding of fact as to the reason for the delay is itself an error of law and she relies on the Aniagwu case before Mr Justice Morison (President). We see force in that point as well as in the Meek v City of Birmingham authority point.
15. We are therefore of the view that we have to allow the appeal. Miss McCafferty asks us to substitute our own view and, more particularly, a view that there can be no extension of time to avoid our remitting the matter and because, in effect, that is the only decision that could properly be reached. Against that Miss Hill in a lively argument has put before us a whole list of features which could have led to a decision in Mrs Mahon's favour or which certainly would have militated in that direction, had only they been found as facts by the Tribunal.
16. We do not see a list of factors that could have been found in Mrs Mahon's favour as sufficient to avoid the allowing of the appeal which we have indicated but it could be, were the matter to be remitted and thought over afresh, that some circumstances in Mrs Mahon's favour would emerge in a balance of the kind that habitually needs to be examined when cases of this kind are before the Tribunal. We are therefore not able to substitute our view or any other view for the view of the Tribunal. We simply allow the appeal and set aside the decision. We remit the matter but we do take the view that both sides, to a greater or lesser extent, have reason to have lost confidence in the particular Tribunal that heard the matter in July. The decision was inadequate the reasons that we have given. We therefore decide that the remission should be to a different three person panel and they will be able to consider afresh whether it is right under section 76(5) to regard it as just and equitable that Mrs Mahon's IT1 should be considered by an Employment Tribunal, notwithstanding the most unusually long lapse of time since the events complained of.