United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T KIBLING (of Counsel) Instructed By: Mr N J Battersby Messrs Whitehead Woodward & Co Solicitors 37 Bloom Street Manchester M1 3LY
For the Respondent	MR P GOULDING QC And MISS G WHITE Instructed By: Ms C Adams British Gas Plc Legal Services Dept 30 The Causeway Staines Middlesex TW18 3BY


 


MR JUSTICE CHARLES:

1. This is an appeal from part of a decision of an Employment Tribunal sitting at Manchester on 11 March 1998. That part of the decision was in the following terms:

"The applicant's claim that he was subjected to sex discrimination (on the ground of his sexual orientation) by the respondent contrary to the provisions of Section 6 of the Sex Discrimination Act 1975 and in breach of European Law is dismissed for want of jurisdiction."

2. The parties to this appeal are Mr P. Gibson, the Applicant before the Employment Tribunal and the Appellant before us, and British Gas Energy Centres Ltd, the Respondent before us and the Employment Tribunal.
3. In his Originating Application the Appellant put his claim in the following way. In box 1 he described his complaint as:

"Sexual Orientation Discrimination, Section 6 of the Sex Discrimination Act 1975 and EEC Equal Treatment Directive 76/207."

By box 11 he referred to an attached statement, paragraphs 5, 6 and 7 of which are in the following terms:

"5. I believe that I have been discriminated against on the grounds of my sexual orientation, in contravention of Section 6 of the Sex Discrimination Act 1975 and the EEC Equal Treatment Directive 76/207, by my dismissal on 29 October 1997 on the grounds that I was incapable of carrying out my job. I do not believe that a heterosexual man, or a woman, would have been dismissed in similar circumstances.

6. I also believe that I have been subjected to other detriments because of dismissal on the grounds of my sexuality. I give the following examples:

(i) At the end of 1996 I took a week off work. My managers, Rebecca Hubbard and Ian Brady informed all of my colleagues who worked in the same warehouse as me that I was gay. Although I had given my permission for them to do so, I did this in response to their advice and prompting. I believe that similar advice would not have been given to a heterosexual man, or a woman, undergoing a personal crisis, to the effect that he or she should inform all of his or her colleagues of its cause.

(ii) My managers, Rebecca Hubbard, Ian Brady and Bernard Murphy, treated me differently than they would have treated a heterosexual man in similar circumstances , when they refused to let me return to work in June 1997 after I had been sent home, having been signed off sick, on 30 April. My contract entitled me to 2 weeks full sick pay, and then I was receiving Statutory Sick Pay. My GP said that I was fit to return to work, but a manager, Gary Tomlinson, refused to accept this. I was allowed to receive full pay, backdated to April 30, but was not allowed to work. I do not believe that a heterosexual man, or a woman, who was suffering from stress or depression as a result of a personal crisis would have been met with such treatment.

(iii) The way in which four medical reports about my capability to do my job were interpreted during my dismissal, when in fact none of them gave the opinion that I was incapable of carrying out my job. I believe that the reports of a heterosexual man, or a woman in the same circumstances, would have been interpreted differently.

These four reports were from:

[The authors of the reports were then identified].

7. I believe that an Industrial Tribunal [now an Employment Tribunal] will have jurisdiction to hear claims of Sexual Orientation Discrimination under the Sex Discrimination Act, because of the referrals to the European Court of Justice of the Grant, and Perkins, cases, and should allow such claims to be lodged pending their outcomes. Also, or in the alternative, I believe that I can rely directly on the European Equal Treatment Directive since British Gas is an emanation of the State."

4. The Applicant represented himself before the Chairman of the Employment Tribunal but as appears from paragraph 20 of the Extended Reasons of the Employment Tribunal (i) he was professionally advised by the Lesbian & Gay Employment Rights Unit when his Originating Application was prepared and submitted to the Employment Tribunal and (ii) at a later stage before the hearing took place at the Employment Tribunal he was advised by an independent firm of Solicitors in Manchester.
5. It is apparent that the Appellant's statement attached to his Originating Application was drafted with professional help and with care.
6. Counsel for the Appellant before us (in our judgment correctly) did not seek to argue that in his statement attached to the Originating Application the Appellant was making a complaint on the basis that the question whether he had been less favourably treated should be answered by comparing him to a lesbian.
7. This appeal came before this Tribunal by way of preliminary hearing on 23 February 2000. That Tribunal was chaired by Burton J who delivered its judgment. That judgment is important because it sets the bases upon which this appeal comes before us today. Paragraphs 1 to 15 of that judgment are in the following terms:

"1 The Employment Tribunal reached the conclusion that his complaint, which is that he was treated differentially on the grounds of his being a homosexual, did not fall within the relevant provisions of the Sex Discrimination Act or the Equal Treatment Directive, because on the basis of decisions of the Employment Appeal Tribunal in Smith v Gardner Merchant Ltd and of the European Court in Grant v South West Trains Ltd, there were, as they saw it, binding conclusions of law that the question of sexual orientation was not covered in those provisions, which related to discrimination on grounds of sex or gender.

2 That conclusion is sought to be appealed by the Notice of Appeal dated 27 April 1998, whose validity is being effectively tested before us today.

3 Since the decision of the Employment Tribunal the law has moved on somewhat. It has moved on in the following ways.

4 First of all, Smith v Gardner Merchant Ltd has come to the Court of Appeal, reported now in [1998] IRLR p510 and the conclusion, to which I earlier referred, of the Employment Tribunal, based upon the decision of the Employment Appeal Tribunal in Smith v Gardner Merchant Ltd was upheld, namely that, as was put in the headnote of that case, the Employment Tribunal and the EAT had not erred in finding that discrimination on grounds of sexual orientation is not discrimination on the grounds of sex within the meaning of the Sex Discrimination Act. A person's sexual orientation is not an aspect of his or her sex.

5 Secondly, the case of Perkins, originally reported in the High Court in 1997 IRLR p297, which at the stage, at any rate, of the Notice of Appeal, was still in the position at which it had been referred to the European Court but not yet decided, has now been decided.

6 The point about Perkins was that, in the Notice of Appeal before us, it was sought to be asserted that in the European Court a different view would, or might, be taken of the case of Perkins, which was based upon service in the Armed Forces, to that which had been taken by that Court in Grant v South West Trains Ltd, which had related to the availability of free or concessionary travel for homosexual partners.

7 In the event, what has occurred is that not only has the European Court decided in Grant v South-West Trains Ltd, that discrimination on grounds of sexual orientation does not fall within the provisions of Article 119 of the Treaty of Rome, on the basis of an allegation of unequal pay, but that subsequently the European Court in the case of Perkins has now decided that the same applies in the context of equal treatment within the Equal Treatment Directive.

8 The third development is that in the case of Smith and Grady v United Kingdom [1999] IRLR 734, the European Court of Human Rights held that Article 8 of the European Convention on Human Rights was violated by the investigation conducted into homosexuality of those in the Armed Forces and their discharge from the Armed Forces.

9 Mr Kibling, who has argued the matter before us today, has accepted in those circumstances that the avenues presented by the argument as previously put that, as a matter of law, the Employment Tribunal erred in failing to find that sexual orientation was a basis for discrimination, is no longer available, either in English law proper, because the Court of Appeal has foreclosed that avenue, or, in the European Court because the decision in Grant v Perkins has foreclosed that avenue. He, however, has submitted that his appeal still had a live point in it on the following two bases.

10 First, when dismissing the main point in Smith v Gardner Merchant Ltd, the Court of Appeal left open an alternative argument which, as I understand it, they remitted for further consideration, namely whether, even within the narrow interpretation of the Sex Discrimination Act it could be said to be available, as an argument on the facts of that case, that a homosexual male was, or had been, treated differently from a homosexual female in the same position.

11 The facts in the present case have never been found, because the Employment Tribunal decided the matter, as a matter of law, without the facts being heard and this argument was never put before them. We have no idea whether any such point could be run in this case.

12 It is entirely possible that at a full hearing of this appeal an Employment Appeal Tribunal might come to the conclusion that, notwithstanding the nice (used in its old fashioned meaning) argument, it was either not available or hopeless in relation to this case, or that because it was not argued below it should not now be permitted to be argued, or remitted, so to be argued in this case. But nevertheless, it seems to us, that because of the possible availability of this line of argument, which was found to be a live one by Smith v Gardner Merchant Ltd CA and has never been ruled out in this case, putting it at its lowest, that this appeal should proceed on that ground.

13 The second argument put forward by Mr Kibling was that he could seek support from the decision of Smith and Grady and the decision of the European Court of Human Rights, by way of submitting in this case that the Court should apply by osmosis the principles of the Human Rights Act, which will not strictly apply, certainly do not at the moment apply, but which may have come into force by the time the Employment Tribunal comes to hear this case, if leave were granted by the Employment Appeal Tribunal.

14 We say nothing at this stage about that point. First, because it may be that the Employment Appeal Tribunal will not give leave; secondly, because they may take the view that the Human Rights Act has no direct, or indirect, relevance to this case, in which case, of course, it would be sought to be asserted that the Sex Discrimination Act itself was ineffective to assist the Appellant in the light of the Court of Appeal decision; and thirdly, because it may be that this Employment Tribunal, even if leave were granted, would be deciding the matter before October, in any event - I have no idea about what timetable would evolve.

15 In those circumstances the leave that we conclude it right to give on this preliminary hearing is limited to the first point, although clearly nothing can, or should, shut out Mr Kibling from referring to his second argument on the full hearing of this appeal, which we now permit."

8. As is apparent from that judgment on the preliminary hearing this Tribunal did not expressly grant leave to amend the Notice of Appeal out of time to add either of the points identified therein.
9. However, in respect of the first point it identified we are of the view that it expressly allowed the appeal to proceed on that ground without any such amendment but in so doing expressly left it to us:

(a) to determine whether or not that point was available or hopeless in relation to this case, or

(b) to determine that because that point was not argued below it should not now be permitted to be argued, or remitted so that it could be argued in this case.

10. As to the second point identified on the preliminary hearing this Tribunal in express terms did not allow the appeal to proceed on that ground and therefore it did not, either expressly or by implication, give the Appellant permission to amend to advance (or to advance) arguments based on the Human Rights Act 1998 and the European Convention of Human Rights.
11. Following the preliminary hearing the Appellant sent an amended Notice of Appeal to this Tribunal. The grounds of appeal set out in that amended Notice are as follows:

"6.1 The Tribunal erred in being satisfied that the Appellant's claim could not be made under the Sex Discrimination Act 1975. The employment tribunal's task under section 1(1)(a), read together with section 5(3), is to ascertain (a) what, as a matter of fact, was the treatment received by the employee; (b) it failed to ask itself whether the Appellant had been treated less favourably than the woman with whom the Appellant fell to be compared (a lesbian), and (c) would he have been so treated but for his sex, see Smith v Gardner Merchant Ltd CA [1998] IRLR 510.

6.2 Further and in the alternative, having regard to the provisions of the European Convention on Human Rights, ('the Convention') and the Human Rights Act 1998, the Employment Tribunal were bound to interpret the provision of the Sex Discrimination Act consistently with the United Kingdom's international obligations. The Employment Tribunal should have treated an act of discrimination on grounds of sexual orientation as an unlawful act, having regard to Article 8 of the Convention. The Appellant will rely on the decision of the European Court of Human Rights in Smith and Grady v United Kingdom ECHR [1999] IRLR 734 and Redmond-Bate v DPP High Court (case no CO/188/99).

6.3 Further and in the alternative, the Employment Tribunal, determined as a preliminary hearing the question of jurisdiction without hearing any evidence in a case where the dispute of evidence needed to be resolved prior to a decision being reached on the preliminary issue concerning its jurisdiction, see Smith v Gardner Merchant Ltd CA [1998] IRLR 510 @ para. 94 and 95."

12. At the beginning of the hearing of this appeal we put to Counsel for the Appellant that it seemed to us that the first points for our consideration were:

(a) whether, having regard to paragraph 12 of the judgment of Burton J, the Appellant should be permitted to argue the points raised in paragraphs 6.1 and 6.3 of the draft amended Notice of Appeal, and

(b) whether the Appellant should be given leave to amend, or otherwise be permitted, to argue the ground contained in paragraph 6.2 of the amended Notice of Appeal.

13. In our judgment correctly Counsel for the Appellant accepted that this was the case.
14. Also (in our judgment correctly) Counsel for the Appellant accepted that the ground contained in paragraph 6.3 of the amended Notice of Appeal was dependent upon the ground in paragraph 6.1 and had no free-standing life of its own. It followed from this that the points he raised in his skeleton argument by reference to the decisions in Sogbetun v Hackney LBC [1998] IRLR 676, Post Office v Howell [1999] Times 11 November 1999, and Sutcliffe v Big C's Marine [1998] IRLR 430 and on Article 6 of the European Convention on Human Rights in respect of them were academic. This was because unless the Appellant could persuade us that the Employment Tribunal had erred in the manner asserted in paragraph 6.1 of the draft amended Notice of Appeal, no issue of fact arose for the determination of the Employment Tribunal and therefore the basis for an argument that the Chairman should not have sat alone disappeared.

Comparison of the Applicant with a Lesbian: Ground 6.1

15. In Smith v Gardner Merchant Ltd [1998] IRLR 510 it is clear that a basis of the Applicant's claim included in his Originating Application was that he had been less favourably treated than a lesbian would have been (see paragraph 4 of the judgment of Ward LJ).
16. As we have said, the Counsel for the Appellant accepts that in his Originating Application the Applicant did not seek to compare his treatment with that of a lesbian. Counsel also (in our judgment correctly) accepted that such a claim could not be made without an amendment of the Originating Application, notwithstanding the fact that it would be a claim under the Sex Discrimination Act 1975 which is referred to in box 1 of the Originating Application. Counsel for the Appellant's argument was that as he could bring a claim under the Sex Discrimination Act 1975 on the basis of a comparison between his treatment and that which would have been given to a lesbian (see the Smith v Gardner Merchant Ltd case) either:

(a) the Employment Tribunal should of its own motion have considered that point, or

(b) he should be allowed to raise that point at this stage as a new point.

17. We do not agree that the Employment Tribunal had an obligation to raise this point of its own motion (see Kumchyk v Derby County Council [1978] ICR 1116, Chapman v Simon [1994] IRLR 124 and Smith v Zeneca (Agrochemicals) Ltd [2000] ICR 800.
18. It was common ground before us that we have a discretion to allow the Appellant to raise this point as a new point on this appeal and that relevant decisions in respect of the exercise of that discretion are Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719 and Jones v Governing Body of Burdett Coutts School [1999] ICR 38.
19. In the circumstances of this case we have concluded that we should not exercise our discretion to allow this point to be raised at this stage.
20. In this context we asked Counsel for the Appellant to outline to us his client's case on the alternative factual premise which underlay this new point. When we asked him this question Counsel was unable to do so because he had no instructions relating to it and, as we understood it from what he told us, this question had not been discussed or considered by the Appellant with his Solicitors or Counsel. Having regard to the terms of paragraph 12 of the judgment of Burton J we were surprised by this omission and it seemed to us that it was a factor which pointed towards a conclusion that the Applicant's real case is, and always has been, that he was less favourably treated than a heterosexual man or a heterosexual woman would have been treated and thus, as he says in box 1 of his Originating Application, that his claim was for "sexual orientation discrimination".
21. However, we gave Counsel for the Appellant the opportunity of taking instructions from the Appellant as to the basis upon which he would wish to advance his case on the alternative premise of a comparison between the treatment he received and he asserts a lesbian would have received. Having taken those instructions Counsel for the Appellant told us that the Appellant had worked as an operator in a distribution centre with 20 to 30 men and only one woman (who was a manager), that the Appellant had had such difficulty coming to terms with being gay that he had attempted to injure himself but that after he had obtained and provided medical certificates that he was fit to return to work he was refused the opportunity of returning. The issue was therefore why was he not allowed to return. His case was that there was not a valid non discriminatory reason for this refusal and if his treatment was to be compared with that of a lesbian he maintained that in the relevant working environment she would have presented less of a threat, and would have been allowed to return to work. This would have involved the consideration of a hypothetical comparator.
22. The main grounds upon which we decline to exercise our discretion to allow this argument to be advanced at this stage are as follows:

(a) it would involve new evidence and questioning of the relevant decision makers,

(b) it therefore cannot be advanced before us and to enable it to be advanced we would have to remit the case so that the Employment Tribunal could hear evidence as to events that took place in and before June 1997,

(c) the Appellant's main case was that he had been less favourably treated because a heterosexual man would have been allowed to return, whether this is right is a matter of speculation but it demonstrates that (i) it was the reason that occurred to, and was advanced by, the Appellant as one that he considered he could establish as a matter of fact, (ii) it was his main case and concern, and (iii) a case based on a comparison with a lesbian was an alternative that did not occur to, or was not advanced by, the Appellant as one that he considered he could establish as a matter of fact and law, and

(d) there are no compelling or exceptional circumstances that, having regard to the competing interests of both parties, warrant us allowing the Appellant to advance this argument at this late stage.

Ground 6.2 in the draft amended Notice of Appeal

23. As drafted this ground does not refer to the Human Rights Act. Rather, it refers to the principle of statutory construction that United Kingdom legislation should be construed consistently with treaties entered into by the United Kingdom. However, this was not the way in which the relevance, or potential relevance, of the European Convention on Human Rights was argued at the preliminary hearing, or before us. In argument Counsel for the Appellant sought to introduce the European Convention on Human Rights by means of the Human Rights Act 1998.
24. It follows that the Appellant did not argue through his Counsel that a decision of the Court of Appeal in Smith v Gardner Merchant Ltd [1998] IRLR 510 (and thus of the Employment Tribunal in this case) was wrong by reason of a failure to have regard to the Treaty obligations of the United Kingdom, and thus the European Convention on Human Rights. In our judgment, given the decisions in Grant v South West Trains Ltd and the Perkins case referred to in paragraphs 1 and 7 of the judgment of Burton J, we do not see how such an argument would have any prospect of success.
25. We therefore turn to consider the position under the Human Rights Act 1998.
26. This was not part of English law when the relevant act, or acts, complained of by the Appellant took place. If our conclusion in paragraph 24 is right the overall effect of what the Appellant is asking us to do is to accept an argument that the effect of the Human Rights Act 1998 is that it enables the Appellant to argue that an act, or acts, which both at the time they took place in 1997, and at the time his Originating Application was dismissed (March 1998) were not rendered unlawful by the Sex Discrimination Act 1975 are now matters that he can assert are contrary to the Sex Discrimination Act 1975 and in respect of which he can claim damages. It follows that the Appellant's argument involves assertions that the Human Rights Act 1998 should be given, or have, retrospective effect in two ways, namely (i) by making an act, or acts, that were not unlawful at the time they took place unlawful at a later date, and (ii) by enabling him to say that the Employment Tribunal erred in law when they dismissed his Originating Application although at the time they made their order they did not so err having regard to existing authority.
27. In our judgment the Human Rights Act 1998 does not have such effects because they would be contrary to (i) the general presumption against retrospectivity, and (ii) the terms of that Act.
28. In our judgment the general presumption against retrospectivity would operate to prevent preclude s. 3 of the Human Rights Act 1998 rendering an act, or acts, that were not unlawful and thus actionable when they in took place as a breach of the Sex Discrimination Act 1975 unlawful and actionable after the Human Rights Act 1998 came into force. In our judgment this view is supported by the terms of section 22(4) (which makes specific and limited provision in respect of the retrospective effect of section 7(1)(b)), and paragraph 1 of Schedule 2 to, the Human Rights Act 1998 (which deals with remedial orders and makes specific provision in respect of their retrospective effect).
29. Further in our judgment in advancing his arguments the Appellant would be seeking to assert that this Tribunal or the Employment Tribunal (as a public authority) would be acting unlawfully if it did not interpret the Sex Discrimination Act 1975 in the way he maintains it should be because it would then be acting in a way that was incompatible with a Convention Right. To do this the Appellant would have to seek to rely on sections 6 and 7(1)(b) and s. 7(6) (which defines the legal proceedings referred to in s. 7(1)(b)) of the Human Rights Act 1998). These sections did not come into force until 2 October 2000 and section 22(4) (which came into force on the passing of the Act - 9 November 1998 - and therefore in any event after the act or acts relied on in this case and the hearing before the Employment Tribunal) makes specific and limited provision as to the retrospective effect of the Human Rights Act 1998 in relation to s. 7(1)(b). In our judgment:

(a) the act, or acts, that the Appellant wishes to argue are in breach of his Convention Rights took place before, or at the time of, the hearing before the Employment Tribunal and therefore before the coming into force of s. 7(1)(b), and

(b) this has the consequence that the part of s. 22(4) that provides for retrospective effect does not apply because the proceedings were not brought by, or at the instigation of, a public authority.

In this context we note that Lord Hobhouse in Reg v Director of Public Prosecutions ex parte Kebilene [1999] 3 WLR 972 at 1008G says that neither section 6 or section 7 of the Human Rights Act 1998 is retrospective.

30. It follows that in our judgment the Appellant cannot advance arguments based on the Human Rights Act 1998 and thus that he should not be permitted to do so.
31. Alternatively and on the bases that:

(i) the above conclusion is wrong,

(ii) in determining whether the act, or acts, relied on were unlawful and whether the Employment Tribunal erred in law we should apply section 3 and/or Convention Rights, and therefore

(iii) the effect and application of the Human Rights Act 1998 is equivalent to a decision of the House of Lords that is declaratory of what the law has always been (albeit the Court if Appeal have earlier held it to be different)

in our judgment we would then have a discretion to determine whether or not the Appellant should be allowed to amend his notice of appeal to raise the new points he now wishes to argue and which for obvious reasons were not raised before the Employment Tribunal (see for example Setiya v East Yorkshire Health Authority [1995] IRLR 348, although here a notice of appeal not raising the new point was served in time and there it was not, and the Glennie and Jones cases referred to in paragraph 18 above, and the notes to the old RSC Order 59 rules 7 and 10) and in the exercise thereof we would refuse to allow him to do so.

32. The discretion referred to in paragraph 31 would fall to be exercised on the basis that the Appellant's arguments are based on changes in the law in the sense that when the case was dealt with by the Employment Tribunal the law was thought to be different having regard to authority binding on the Employment Tribunal, this Tribunal and the Court of Appeal and decided at a time when the courts could have regard to the European Convention on Human Rights as part of the treaty obligations of the United Kingdom. In exercising that discretion we would have to have regard to the nature of our jurisdiction and all the circumstances of the case which would include an assessment of the injustice which each side may suffer. Included amongst those circumstances would be the time that has passed since the act or acts relied on took place and the points in favour of finality and certainty. In our judgment having particular regard to those factors in all the circumstances of this case the Appellant should not be allowed to amend to advance, or otherwise be permitted to advance, the arguments based on the Human Rights Act 1998.