United Kingdom Employment Appeal Tribunal

APPEARANCES

 

FOR PRESTON BOROUGH COUNCIL FOR MRS S HARRISON	MR TERENCE RIGBY (of Counsel) Instructed By: Messrs Davies Wallis Foyster Solicitors 5 Castle Street Liverpool LS 4XE MR NIGEL BAKER QC (of Counsel) Instructed By: Messrs Cunningham Turner Solicitors Winston Hall
FOR MR G DRIVER	20 East Park Road Blackburn Lancashire BB1 8BB MR EDWARD MORGAN (of Counsel) Instructed By: Berg & Co Solicitors Scottish Mutual House 35 Peter Street Manchester M2 5BG


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT):

1. This is an appeal against the decision of the Employment Tribunal at Liverpool which, after a five-day hearing in July and consideration in October, was handed down on 5 December 2001, by which the Tribunal unanimously found that the first Respondent, the Preston Borough Council ("the Council") and the second Respondent, Mr Geoffrey Driver ("Mr Driver") both discriminated against the Applicant, Mrs Harrison, on the ground of her sex, by victimising her. We heard the appeal by the Council and Mr Driver against that Decision on 11 March 2003, and at the conclusion of the hearing on that day we unanimously allowed the appeal and announced that we would not remit to the Employment Tribunal, and these are our reasons.
2. The Applicant has been employed by the Council since September 1990, latterly as Assistant Director (Legal and Administration). Mr Driver in May 1993 became the Town Clerk/Chief Executive of the Council, and so remained until March 1996, when he took early retirement.
3. The starting point of these proceedings is a criminal investigation called "Operation Angel", which commenced in about July 1991, into alleged corrupt transactions involving (among others) a former Councillor, Mr McGrath, then deputy leader of the ruling Labour group, and the then deputy Town Clerk, a Mr McLorry, for whom the Applicant deputised during his suspension in the course of the investigation. Mr Driver was determined that the Council should sufficiently investigate these matters, and in particular should take proceedings against Mr McGrath, and he was critical of the Council's failure, as he saw it, to take sufficient steps: he was of the view that the Applicant was in part responsible for such delay and was colluding with those accused of corruption (which this Employment Tribunal found not to be the case).
4. On 22 April 1996, the Applicant made a complaint in the Employment Tribunal at Manchester accusing the Council and Mr Driver personally of discriminating against her on the ground of her sex. In March 1997 her application was withdrawn, as a result of a compromise by agreement between the Applicant and the Council, on terms of payment by the Council to the Applicant. Mr Driver was not a party to the compromise. He complained to the Office for the Supervision of Solicitors and to the Legal Services Ombudsman that the Applicant's application against him was, as he asserted, concocted, and he also sought costs against the Applicant; all Mr Driver's such applications and complaints were unsuccessful.
5. In May 1999 Mr Driver was elected to the Council, as a member of the Conservative opposition, and remained so at the time of the Applicant's Originating Application, the subject matter of these proceedings. Such application complained of victimisation by both the Council and Mr Driver. It fell into two parts:

(i) It complained of a failure by the Council to comply with its obligations under the compromise agreement. This was rejected by the Employment Tribunal.

(ii) It alleged conduct by Mr Driver for which the Council and Mr Driver were alleged to be liable. The conduct which triggered the Originating Application was Mr Driver's speech as a Councillor at a Council Meeting on 13 July 2000, when he repeated his belief that there had been corrupt activity by Mr McGrath, Mr McLorry and others, that the Council had not adequately pursued them, that the Applicant had been responsible for the non-prosecution of such claim and that but for his own actions the Council would not have activated such proceedings against Mr McGrath within the limitation period. The Originating Application was issued on 12 October 2000, i.e. just within the three months time limit running from 13 July 2000. The Applicant included in the Originating Application complaint about Mr Driver's actions prior to 13 July 2000, alleging in paragraph 23 a continuous period of victimisation from 1996 to 13 July 2000.

6. Leaving aside the separate matter of alleged non-compliance by the Council with the compromise agreement, the case was based solely upon the conduct of Mr Driver, and such conduct can be seen to fall within three periods:

(i) 1996 to May 1999, when he was a private citizen, and neither employed by nor a Councillor of the Council.

(ii) May 1999 to 13 July 2000 when he was an opposition Councillor, and specific matters were alleged, to which we will return, in August 1999 and January 2000.

(iii) 13 July, when, as an opposition Councillor, he made the speech at the Council meeting.

7. We turn to the law. Section 4 of the Sex Discrimination Act 1975 ("the 1975 Act") provides:

"(1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act …"

8. The relevant provision of this Act in the circumstances of this case is s6(2) namely:

"It is unlawful for a person, in the case of a woman employed by him as an establishment in Great Britain, to discriminate against her –

(b) by dismissing her, or subjecting her to any other detriment."

9. Sections 41 and 42 of the Act provide as follows:

"41. 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 as 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 shall be treated for the purposes of this Act as done by that other 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.

42. Aiding unlawful acts.

(1) A person who knowingly aids another person to do an act made unlawful by this Act shall 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 s41 (or would be so liable but for s41(3)) shall be deemed to aid the doing of the act by the employer or principal."

10. The Decision contains no recital of the relevant statutory provisions at all. It is normally the practice of Employment Tribunals to set out the relevant law in the body of its Decision. This is perhaps often a rather tiresome mantra, and may well be a wholly unnecessary routine where the law is obvious, tried and tested, or where no material issue of law falls to be resolved. But the absence of recitation of the law in this case, in which on any basis there were issues of law to be resolved, which were indeed specifically canvassed in argument before the Tribunal, is surprising, and may well be what led the Tribunal into the error into which, in our judgment, it fell. The setting out of the statutory provisions, as above, would have shown both the nature of the decision which the Tribunal had to make and, as it seems to us, the difficulty with which the Applicant was faced, and with which the Tribunal was faced if, as appears, it was resolved to find in the Applicant's favour. It was impossible for the Tribunal to resolve in favour of the Applicant otherwise than by express consideration of the provisions which we have set out and, in particular, the provisions of sections 41 and 42. The relevant conduct complained of was that of Mr Driver, an opposition Councillor. The conduct to be actionable was required to have been victimisation by reason that the Applicant had brought the proceedings for discrimination. But, more significantly still in the context of this case, in order for such conduct to be actionable it had to be brought within Part II of the Act (Discrimination in the Employment Field), and in particular within s6, by virtue of ss41 and/or 42. Discrimination and victimisation are not actionable otherwise than in the statutorily provided circumstances and:

(i) it is at any rate now, and apparently was during the Tribunal hearing, even if it seemingly had not been at the interlocutory stages prior to that hearing, common ground (and is manifestly the case) that Mr Driver, quae opposition Councillor, was not, whether individually or collectively, the Applicant's employer:

(ii) it is common ground that at no relevant time for the purposes of this Originating Application was the Council Mr Driver's employer.

11. Therefore s41(1) of the Act is not applicable; and in order for the discrimination/victimisation to be actionable it must fall within ss41(2) and/or 42(2), i.e. Mr Driver must be found to be the agent of the Council. The nature of such agency is carefully defined by reference to s41(2); but it appears to us to be particularly important that the agency must be carefully so found and established, because once a party is found to be a principal then that party has no escape from liability, as would otherwise be the case if the relationship was one of employer, because the s41(3) escape clause is not available to a principal in respect of the actions of an agent, but only to an employer who can prove the taking of all reasonable practicable steps in relation to preventing an employee.
12. As will be seen, the Tribunal expressly acquitted the Council itself of any act of victimisation. It was thus necessary for the Tribunal to have found that, in relation to the conduct complained of, Mr Driver was the Council's agent. If he was not the Council's agent, then the Council, as the Applicant's employer, was not liable, and Mr Driver, who was not the Applicant's employer, was also not liable, for actions falling within the Act, whatever other cause of action the Applicant might have in any other court. Mr Baker QC on behalf of the Applicant, responding to these appeals, does not dissent from this proposition, and has sought to assert, as his primary ground of opposition to the appeals, that there was some implicit finding of agency by the Tribunal (his secondary position being to seek that the matter be remitted to a different Tribunal for rehearing): but even in his own skeleton at paragraph 6(i) the highest the case was put on behalf of the Applicant was "it is not clear from the reasons of the ET whether the question of agency formed any part of the Decision".
13. The Tribunal's Decision was concise, and its conclusions are in paragraphs 5 and 6, which we set out, verbatim, below:

"5. Did either respondent treat the applicant less favourably than or less [sic] because she brought the proceedings under the Sex Discrimination Act 1995? Here is how we answered in each case:

(a) The first respondents.

The position of the first respondents was difficult. A troublesome councillor who did not accept outcomes that thwarted his wishes confronted them with manifestly unacceptable treatment of one of their officers. They may have tried to soothe the applicant while trying to avoid giving the second respondent the excuse to make life more difficult than it need be. They did not espouse her cause with energy. But they did nothing worse than that. They did not victimize her. They did their honest best to manage a difficult situation.

(b) The second respondent

There are, we dare say, many facets to the second respondent's motivation. Malice against the applicant is a prominent one. That malice has been occasioned by her action against him in the Employment Tribunal. He actually referred to the action once in the context of one of his attacks on her. All of her actions that he has questioned and criticized are manifestly defensible on professional and rational grounds. To challenge and debate than [sic] in the hurtful, relentless manner he has adopted suggests a deep personal motive. What has she done to make him see corruption when on a rational analysis she is only practising her profession? She has accused him of sex discrimination. That accounts for his treatment of her.

6. Thus the first respondents did nothing against the applicant that amounted to her victimization, unless the second respondent's conduct towards her burdened them with liability. Were they so liable? Was the second respondent liable pursuant to the Sex Discrimination Act 1975? We answered "yes" to both questions. Here is our reasoning:

(a) We considered the case of Moores v Bude-Stratton Town Council [2000] IRLR 676. There the Employment Appeal Tribunal decided that a local authority was liable for a councillor's misconduct that forfeited a council employee's trust and confidence. The corollary (although the councillor was not a party in that case) is that a councillor is also liable for his or her own misconduct. The decision binds us. These respondents are liable for the victimization the applicant suffered at the second respondents' hands.

(b) Even without the decision in Moores, on general grounds alone, we should have decided as we have on liability. Here was a case of victimization in employment. A person's working life was being made miserable. The person committing the wrong was a part of the organisation acting within the scope of his function. We reflected on the purpose of the legislation; the protection it sought to give, the mischief it sought to guard against. A company director who was not also an employer and who behaved as the second respondent did would not be outside the scope of employment legislation; even though he might be a majority shareholder beyond internal discipline. We could not accept that a councillor does not occupy the same situation in employment law; there is no reason in justice of common sense why he should not; the legislation means him to be its subject.

(c) It is true that the first respondents did nothing to support the second respondent. That fact might affect the quantum of compensation. But they did not prove that they took all reasonable practical steps to prevent him. He might, for instance, have been stopped when at the council meeting, he exhausted his time. They might have acted on her complaint about the second respondent's behaviour at the committee meeting. We trust that we have shown our understanding of their predicament. But they way they handled their difficulty does not relieve them of their liability.

14. As can be seen, the Tribunal's conclusion is plainly not based on any finding of agency. It appears to rest on two bases:

(i) The case of Moores.

(ii) "General grounds", unexplained but apparently to be exemplified by analogy with a company director who is said "not [to] be outside the scope of employment legislation".

15. Neither of these routes in any event address the conditions laid down by statute for liability in respect of the statutory tort of unlawful discrimination in the employment field, but we shall address them both.
16. Moores was a majority decision of the Employment Appeal Tribunal, Lindsay P dissenting. It related to a claim by a council employee against the council for compensation for constructive dismissal when the applicant resigned after being verbally abused by a councillor. The majority concluded that there had been a constructive dismissal, allowing an appeal from the decision to the contrary by an employment tribunal, because (paragraph 45) "the council was vicariously liable for the actions of Councillor Parsons … and the actions of Councillor Parsons could amount to a breach by the council of the implied contractual obligations to provide a reasonable congenial working environment". It is plain therefore that this was a decision based upon an interpretation of common law, and that the implied term of trust and confidence between the council and its employee had been breached by the council apparently on two bases:

(i) The finding that an individual councillor is under a duty not to engage in conduct likely to undermine trust and confidence; and the council was said to be vicariously liable for that breach (paragraph 39 of Moores).

(ii) It was further found that it was an implied term of every contract of employment that an employer would provide and maintain a working environment reasonably tolerable to employees, requiring their protection from unacceptable treatment and behaviour and unauthorised interference in work duties: reference was made to the failure by an employer so to protect its employee exemplified in e.g. Burton and Rhule v De Vere Hotels [1996] IRLR 596 (paragraph 40 of Moores).

17. Neither of these propositions, even if right on that facts of that case (and, given that the decision is not strictly binding upon us, we are not to be taken as agreeing that it is), applies here. Moores did not involve, as this case does, the statutory tort of sex discrimination, and the applicability of ss 41 and 42 of the Act.
18. However, in any event, not only is Moores not in our judgment of any assistance in reaching a conclusion in this case, but, if anything, it is counter-indicative. Sections 41 and 42 require a finding of agency, i.e. actual or ostensible authority, precedent or subsequent, on the Council's part to act as Mr Driver did. That is expressly abjured as a basis for the applicant's submission in Moores, which the majority accepted and adopted, as is clear in paragraph 30 of the judgment in that case:

"[Counsel for the applicant] does not challenge, but rather seeks to sidestep, the tribunal's conclusion that Mrs Parsons had neither actual nor ostensible authority to bind the council as employer of Mr Moores and that Mr Moores could not reasonably have perceived Mrs Parsons to have been acting as his employer during the incident of 8 September. [He] sidesteps those conclusions by asserting that it is not authority which is the sole or appropriate test for liability in a case such as this."

19. As to the "general grounds" or "reason in justice of common sense" referred to in paragraph 6(b) of the Decision, Mr Morgan on behalf of Mr Driver has in his skeleton comprehensively demolished the suggested analogy between a councillor and the position of a company director, and Mr Baker QC on behalf of the Applicant did not attempt to support such proposition. Nor did Mr Baker QC seek otherwise to exemplify, illustrate or indeed try to establish any other route to establish liability other than the statutory one provided by the Act. In the Applicant's skeleton argument, some reference was made to those authorities which encourage a purposive interpretation of the words "in the course of employment" in s41(1), such as Jones v Tower Boot Co Ltd [1997] 2 AER 406; but he accepted that such argument was of no assistance to him in a case such as this, where it is conceded that the Council was not Mr Driver's employer.
20. The answer in this case can only be arrived at, as Mr Baker QC himself conceded, by reference to agency and authority. As we have stated, if Mr Driver was not acting as the agent of the Council, then the Council cannot be liable, and, as Mr Driver was not the employer, nor can he. There was no finding of agency, and no reference at all to the relevant sections of the Act, and paragraph 6 of the Tribunal's Decision is devoid of any relevant discussion. The argument before us therefore concentrated on whether there could be spelt out of the facts found by the Tribunal (or indeed, in the light of the fact that the Tribunal had substantial documents put before it which we have had the opportunity of perusing, out of any of such documents), a case of agency. The established approach of this Appeal Tribunal was accepted to be as follows:

(i) If, although the Tribunal's approach was in error or inadequate, it is apparent that on the basis of such facts the result would be the same, i.e. there would be a finding of agency, then there would be no point in remitting the matter back to a fresh Tribunal simply in order to reach that same conclusion, and the appeal would accordingly be dismissed. This was Mr Baker QC's primary case in response to the appeal.

(ii) Conversely, Mr Baker QC, in relation to his secondary case, relied upon the well-known dictum of Lord Donaldson MR in O'Kelly v Trust House Forte plc [1983] ICR 728, namely:

"The Employment Appeal Tribunal can correct errors of law and substitute its own decision in so far as the [employment] Tribunal must, but for the error of law have reached such a decision. But if it is an open question how the [employment] Tribunal would have decided the matter if it had directed itself correctly, the Employment Appeal Tribunal can only remit the case for further consideration."

This Tribunal must therefore remit the matter for rehearing, inevitably by a different tribunal in the circumstances, unless it is satisfied that no reasonable tribunal could conclude that Mr Driver was acting as agent of the Council, i.e. that it is not an open question how the … tribunal would have decided the matter if it had directed itself correctly".

21. We turn then to the tripartite nature of the conduct of Mr Driver considered by the Tribunal, referred to in paragraph 6 above:

(i) Pre-May 1999. Mr Baker QC concedes that the way in which the Tribunal dealt with this period was, at the least, lacking in clarity. There was a minor mistake in relation to subparagraphs 3(p) and (r) of the Decision, in that Mr Driver was said to have attended a Council meeting as representative of a Councillor Swarbrick, i.e. instead of him, when the fact was that he was seeking to accompany him. But the nub of the problem is that no differentiation was made in the Tribunal's Decision between events prior to May 1999 (set out in subparagraph 3(j) to (q)) and those subsequent to it. Mr Baker QC accepts that events prior to May 1999, when, it is to be noted, Mr Driver was not even a Councillor, could not possibly be relied upon, even by way of an application to extend time beyond the three-month limit, as causes of action: and he confirms that so much was positively conceded on the Applicant's behalf before the Tribunal. The differentiation between events prior and subsequent to May 1999, i.e. by way of clarifying that the earlier events could not be relied upon as causes of action, but would be relevant only by way of historical background and for establishing such matters as hostility and state of mind, was thus essential for the Tribunal. However not only did the Tribunal not so differentiate, but, notwithstanding the concession to which we have referred, the converse is the case. The Tribunal positively finds, in paragraph 4 of its Decision, though not invited to do so as Mr Baker QC tells us, that "although the allegations go back several years, none is out of time, for the course of the second respondent's conduct brings a succession of incidents within the three months concluding with the lodging of the Originating Application on 12 October 2000 … The second respondent continued to pursue the applicant even during the period when he was no longer an officer of the first respondents nor yet a councillor. He did so through serving councillors who opposed the Labour group. The incidents they lent themselves to were no less part of his vendetta than those in which, as an officer or a councillor, he was directly involved." That is, as Mr Baker QC concedes, erroneous in law. But in any event it is sufficient for our purposes to say that events prior to May 1999 cannot be a source for a finding of agency or authority, express, implied or ostensible of Mr Driver on behalf of the Council.

(ii) May 1999 – July 2000. Here too there is a factual mistake, and a more serious one, by the Employment Tribunal in its Decision. What are described in subparagraphs 3(t) and (u) of the Decision as two separate meetings, on 18 and 19 January 2000, and concluded to be two separate events of victimisation, were in fact only one, namely a meeting on 19 January, as Mr Baker QC accepts. There were therefore only two events referred to by the Applicant and capable of being relied upon by the Tribunal, namely the incident on 31 August 1999 dealt with in subparagraph (3)(s) of the Decision, and the meeting on 19 January 2000. As to them:

(a) Once decoupled from the events prior to May 1999, they are the only two matters which can be asserted to constitute a continuing act or practice within Barclays Bank plc v Kapur [1991] 2 AC 355 or Owusu v London Fire & Civil Defence Authority [1995] IRLR 574 (cases not actually referred to by the Tribunal in its short conclusion in this regard in paragraph 4 of its Decision) or indeed an "act extending over a period", as distinct from a succession of unconnected or isolated specific acts, within Hendricks v Metropolitan Police Commissioner [2003] 1 AER 654. Similarly insofar as the Tribunal in paragraph 4(a) of its Decision indicated that it would, in the alternative, have enlarged the time beyond the three-month period by reference to justice and equity, reliance upon those two incidents alone would have made it the more difficult to do so, not least given the need, which in particular Mr Rigby on behalf of the Council complains that the Tribunal did not do, to exercise its discretion, wide though that discretion is. In particular, as Mr Rigby submits, it would be necessary for a tribunal (and should have been necessary for this Tribunal) to consider the position of each Respondent separately, and to have at least taken into account such matters as the fact that the Applicant (i) is a lawyer (ii) had independent legal advice at the time and (iii) had knowledge of tribunal procedures, having brought her own earlier discrimination claim.

(b) In any event Mr Baker QC does not assert that agency can be even arguably spelt out by reference to these two incidents:

(1) 31 August 1999 was the occasion of a meeting of the Community Regeneration Committee of the Council. The majority Labour group was late, because apparently they were still carrying out their own separate meeting, and the opposition, spearheaded by two Liberal Councillors, resolved to start the meeting without them and to install their own Chairman (one of the Liberal councillors) as a party political gesture of defiance against the Labour group, and despite the advice of the Applicant, who was the senior Council officer present: Mr Driver played a minor but active role in this. The only source for anything which might be referred to in order to begin to establish some kind of case for agency is paragraph 6(c) of the Decision, which has been quoted above. Although subsection 41(3) of the Act was not of course cited or set out in the Decision, and would not in any event be relevant, it would appear that the words "they did not prove that they took all reasonably practical [sic] steps to prevent him" must indicate some kind of sideways glance at it. The reference to the August 1999 meeting in this regard is constituted by the words "they might have acted on their complaint about the second Respondent's behaviour at the Committee meeting": the Council only wrote (by letter from Mr Carr, the Town Clerk/Chief Executive, dated 22 September 1999) to the two Liberal Councillors to make its complaint, and not to Mr Driver. But Mr Baker QC rightly concedes that the participation in this action by Mr Driver, even if it was, as the Tribunal found, motivated by a "view to hurting and humiliating" the Applicant, could not possibly amount to conduct by Mr Driver as agent of the Council, nor could any omission to include Mr Driver in the letter of criticism of 22 September 1999 amount to any ratification of his conduct.

(2) Even less is this the case in relation to the January 2000 meeting of the Community Regulation Committee, even as found by the Tribunal, which related to a critical attack by Mr Driver, as an opposition Councillor, on deficiencies in a report of which the Applicant and two other Council officers were authors. No reference is made to any act or omission of the Council in regard to this even in paragraph 6(c) of the Decision, and once again Mr Baker QC, rightly, does not rely on it to establish any case of agency or authority, precedent or subsequent.

22. The only case made before us by Mr Baker QC as to agency, so as to bring the case within s 41 of the Act and hence within the statutory provisions, was by reference to the meeting of 13 July 2000, and then only by reliance upon ratification, i.e. authority subsequent rather than precedent.
23. We turn to that meeting. The finding of the Tribunal was set out shortly in subparagraphs 3(w) and (x):

"(w) On 13 July 2000, there was a full public meeting of the first respondents. The second respondent made a statement … In it he made various attacks on the applicant. He accused her of 'stopping the action against Mr McGrath and of deciding not to carry on with it. He also attacked the sex discrimination claim as 'concocted'.

(x) Neither Mr Carr, who was present at the meeting, nor the Mayor, who presided, stopped the second respondent whilst he was thus attacking the applicant. He overran the allotted time for the statement, and the meeting voted to let him finish it. Afterwards, he gave a copy of his statement to the press."

Subparagraph (x) is not quite full and accurate. The Applicant was not present at that meeting, but it is accepted that the following is what occurred. Standing Orders provide that Councillors are only entitled to speak for six minutes on any one item. After Mr Driver had been speaking for six minutes, Mr Carr intervened, and the Mayor, who was chairing the meeting, informed Mr Driver that he must stop, but, as was provided by Standing Orders, the Councillors then voted that he should have an extension of time to complete his speech. It is common ground that, at that stage, Mr Driver had not named any Council officers (he named the Applicant only at the very end of his speech), although it was obvious that, among others, the Applicant was being referred to.

24. In paragraph 6(c) of the Decision, the point that is made by the Tribunal in the context to which we have referred in paragraph 21(ii)(b) above (notwithstanding its finding in paragraph 5(c) that the Council did its "honest best to manage a difficult situation") is that Mr Driver "might, for instance, have been stopped when at the Council meeting he exhausted his time". It is difficult to see what more could have been done. Mr Baker QC has pointed to the Standing Orders, which would have permitted the Mayor as Chairman to put to a vote whether Mr Driver should be stopped, irrespective of his overrunning, by reference to the content of his speech; but it would appear that, not least because that very content must have been obvious to those who in any event voted to allow him to continue once he overran his time, it would appear most unlikely that any different result would have occurred. In any event the Tribunal's suggestion is only that he "might" have been stopped.
25. Mr Baker QC sought to base his case on agency, whether for the purpose of his primary or secondary submission, solely on ratification. He did not suggest that Mr Carr had prior knowledge of the content of Mr Driver's speech – except by reference to the assertion in the Applicant's skeleton that the Council "knew or must have known of [Mr Driver's] use of every opportunity to humiliate and intimidate" the Applicant. He accepted that Mr Driver did not make a speech from the floor as an opposition Councillor as an agent of the Council, but he put forward a case of ratification by reference to the failure of Mr Carr to advise the Mayor in relation to the putting forward of a resolution that the Appellant should be stopped by virtue of the content of his speech.
26. Plainly there is no life at all in Mr Baker QC's primary submission that we should dismiss the appeal on the basis that it is inevitable that the Tribunal would have come to the same conclusion had it addressed the law correctly. But what of his secondary submission? Is there an "open question"? Is the case of agency by ratification arguable? Might another Tribunal, properly directing itself, find agency? There would in any event be a difficulty for a fresh Tribunal in the light of Khan v Chief Constable of West Yorkshire [2001] 1 WLR 1947, a decision of the House of Lords after the hearing, although before the actual decision in this case, but obviously not referred to, which makes it clear that the proper approach to s4(1) of the Act requires a much more careful analysis of "by reason that the person victimised has brought proceedings against the discriminator or any other person" than was given by the Tribunal in this case. If the speech by Mr Driver at the meeting on 13 July 2000 was relevant unfavourable treatment of the Applicant, was such unfavourable treatment by reason of the fact that the Applicant had issued the earlier discrimination proceedings when:

(i) he was repeating the original allegations, which antedated those proceedings (he never having agreed to there being a compromise):

(ii) it was a public Council meeting, at which he was making similar complaints against others (who had not brought such proceedings and were male), all arising out of the Operation Angel investigation?

Nevertheless we approach the question of remitting the issue of ratification quite irrespective of this difficulty.

27. As pointed out in terms by Counsel for the Appellants, there would be an important constitutional question here, if it were suggested that as a matter of law what is said or done by an elected (and in particular an opposition) councillor at a Council meeting is done as an agent of the Council. Both Mr Rigby and Mr Morgan refer in their skeletons to the Local Government Act 1972, and Mr Morgan also refers (inter alia) to the Representation of the People Act 1983, the Local Government (Contracts) Act 1997 and the Local Government Act 2000. For reasons made clear in paragraph 18 above, Moores does not help the Applicant in this regard. But there is not said on the Applicant's behalf to be an agency, express, implied or apparent, as a matter of law. It is said to arise as a matter of fact, by the ratification of what was being said by an opposition Councillor so as to become conduct by him on the Council's behalf, by virtue of the omission of Mr Carr to advise the Mayor to seek to stop him. We are satisfied that this is unarguable, and that no reasonable tribunal could come to such a conclusion. We therefore reject Mr Baker QC's secondary submission.
28. It is in those circumstances that we unanimously allowed the appeal and declined to remit.