United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A MARTIN (Representative)
For the Respondent	MISS E SMITH (of Counsel) Instructed by: Messrs Brodies LLP Solicitors 15 Atholl Crescent Edinburgh EH3 8HA


 


SUMMARY

Jurisdictional Points – Extension of time: just and equitable

Sex Discrimination – Indirect

Unfair Dismissal – Constructive dismissal

The Appellant claimed constructive unfair dismissal and race and sex discrimination. At a PHR the Tribunal struck out the race discrimination claim on the basis that it was not just and equitable to extend time and ordered payment of £300 deposit on each of the other 2 claims. On appeal, held:

1) as to race discrimination the Tribunal erred in law (a) in considering only one of the complaints made by the Appellant some of which arose later than the complaint on which the Tribunal focussed (b) in failing to consider the issue of prejudice and whether a fair trial would be had despite the delay.

2) as to sex discrimination the Tribunal had failed to understand that the claim was one of indirect discrimination off the true nature of the claim, based as it was on a length of service requirement before an employee could be considered for promotion or a change of post. It could not reasonably be concluded that there was little reasonable prospect of success.

3) as to constructive dismissal the Tribunal had erred in law in regarding as decisive that the last straw was not a breach of contract and in concluding that it was not such a breach.

As to 2) and 3) the Tribunal's decision was set aside; no deposit was required. As to 1) issue of extension of time remitted to a fresh Tribunal.


 


HIS HONOUR JUDGE BURKE QC

History

1. This is an appeal against three decisions, contained in one judgment, of the Employment Tribunal, sitting at Bedford, chaired by Employment Judge Bowen and sent to the parties, after a two-day hearing on 24 and 25 May 2007, on 21 June 2007.
2. Ms Fazal presented to the Tribunal on 7 November 2006 a lengthy and detailed claim form in which she claimed that she had, on 23 September 2006 been constructively unfairly dismissed by her employers, National Westminster Bank ("the bank"), that she had been subject to discrimination and victimisation by reason of her sex, disability, sexual orientation and race and that the bank were in breach of contract in failing to pay her overtime, accrued holiday pay and for an alleged period of notice.
3. By their response, also a substantial document, the bank denied all of the allegations and took, as a preliminary issue, the point that all of the discrimination claims were out of time.
4. The bank pointed out that some of the allegations in the claim form were unclear and indicated that they would seek further particulars; during January 2007 the parties exchanged requests for particulars or answers to questions. Ms Fazal, by Mr Martin on her behalf, gave further particulars; the bank declined to answer a series of questions put to them on Ms Fazal's behalf. It is not necessary for us for present purposes to refer further to these documents; but it was plain that the issues between the parties needed to be clearly identified; and, to a substantial extent, the Tribunal undertook that task at a case management discussion before Employment Judge Moore on 31 January 2007.
5. On that occasion the Tribunal identified the matters which, it was said, amounted to fundamental breach of Ms Fazal's contract of employment and formed the basis of her constructive dismissal claim; four acts or series of acts or omissions on the part of the bank were identified in paragraph 3.1 of the first schedule to the Tribunal's judgment. As to disability discrimination, the disability and detriment relied upon were identified at paragraph 3.3. Sexual orientation discrimination had by this time ceased to be part of the claim. As to sex discrimination, the Tribunal recorded Ms Fazal's admission that none of the acts fell within the statutory primary 3 month time limit; the nature of the sex discrimination complaint was identified in paragraph 3.2.
6. Under the heading of race discrimination the Tribunal, at paragraphs 3.4-12, identified 9 complaints of such discrimination and/or victimisation and recorded Ms Fazal's admission that all of the matters complained of occurred more than 3 months before the presentation of her claim.
7. Mr Martin, who has assisted Ms Fazal since at least the final weeks of her employment by the bank, if not before, and who appeared before us on her behalf, told us that there were issues raised by the claim form which ought to have been but were not identified as issues by the Tribunal in its January 2007 judgment. Ms Smith, on behalf of the bank, accepted that the identification of the issues in the first schedule to that judgment did not, of itself, amount to a judgment or order and did not give rise to any form of issue estoppel; were Ms Fazal to raise other issues she would not be barred at trial from so doing, as long as she had given sufficient notice to the bank to enable the bank to prepare its case satisfactorily. It is, however, important that, insofar as Ms Fazal's claims are going to proceed to trial, they should be identified with as much clarity as possible in good time before such trial. We will need to return to this later.
8. Although the Tribunal had intended to hold a pre-hearing review to consider the out-of-time points raised by the bank, because what we can loosely call the pleadings on behalf of Ms Fazal were not clear, the Tribunal devoted its time at the January hearing to clarifying the issues in the way we have described and indicated, at the end of their description of the issues thus identified, that the bank contended that the discrimination claims at least and perhaps the other claims were out of time and that they had no reasonable prospect of success. For that reason a pre-hearing review was fixed; it is against the results of that review that Ms Fazal now appeals.
9. Some aspects of the orders made by the Tribunal in January were the subject of an appeal to the EAT, which raised and may have been solely based on issues of bias. That appeal was dismissed on 27 April 2007. In his skeleton argument for this appeal Mr Martin made various comments which seek to derive assistance from what was said by the EAT, HHJ Reid QC sitting alone, on that occasion; but we have not seen that judgment and in any event do not regard Mr Martin's points in his argument, at paragraphs 1.2-1.7, as relevant to or having any effect on the outcome of the appeal before us today. Indeed Mr Martin agreed that they were only background; we should record however that, while he dismissed Ms Fazal's appeal, HHJ Reid QC did order that any further hearing of the Employment Tribunal should be heard by a differently constituted Tribunal; and the Tribunal at the pre-hearing review was differently constituted.

The judgment on pre-hearing review

10. The Tribunal came to five decisions, four of which were adverse to Ms Fazal's claims. Each of those four decisions was the subject of brief reasons, set out in paragraphs 1-4 in the judgment. Those decisions were as follows:-

1) The disability discrimination claim was struck out in the absence of any evidence which could establish that Ms Fazal had a disability within the Disability Discrimination Act 1995.

2) Ms Fazal was ordered to make a deposit of £300 in respect of her constructive dismissal claim on the basis that it had little reasonable prospect of success.

3) A similar order was made in the case of the sex discrimination claim.

4) The race discrimination claim was struck out on the basis that it was presented out of time and it was not just and equitable to extend time.

11. Ms Fazal does not challenge the Tribunal's first decision, upon her disability discrimination claim; by this appeal she challenges the remaining three adverse decisions. We will set out the reasons given by the Tribunal for each of those decisions as we address each individually below. Before we do that, we must record that, unfortunately, while this appeal has been pending, Ms Fazal has neither sought a stay of the Tribunal's order for payment of deposits nor made any such payment; and as a result the sex discrimination and constructive dismissal claims have now been struck out. However it has, very properly, not been suggested either that that strike-out limits our ability to hear and dispose of any aspect of Ms Fazal's appeal or that it adds to the strength of either party's case on this appeal.
12. We propose to address the three decisions under challenge in the order in which we heard the party's submissions. We are grateful to Mr Martin and Ms Smith for the help they both gave us. We mean no discourtesy to Ms Smith if we pay particular tribute to Mr Martin who, with no legal qualification of which we are aware, has manifestly undertaken a great deal of research and has developed lengthy submissions which have given us considerable assistance, albeit not all of them were wholly accurately directed.

Race discrimination

13. At the January hearing to which we have referred above, nine incidents of alleged race discrimination were set out, at paragraphs 3.4-3.12 of the first schedule to the Tribunal's judgment. The major thrust of the claim, as Mr Martin accepted, was based on the incident referred to at paragraph 3.4 which is said to have occurred on 22 February 2005 when Ms Fazal's manager asked her not to carry on a conversation with a colleague in Urdu in front of other staff; but that was, as Ms Smith agreed, not the sole complaint. Apart from the incident alleged in paragraph 3.6, all other complaints were based on events said to have taken after February 2005 but not within 3 months prior to the presentation of the claim on 7 November 2006. All of them were, therefore, prima facie out of time and could not be pursued unless the Tribunal extended time on the basis that it was just and equitable to do so; see section 68(1)(a) and (6) of the Race Relations Act 1976. The Tribunal's task at the May hearing, so far as race discrimination was concerned, was to decide whether it was just and equitable to extend time.
14. The Tribunal's decision was set out in paragraph 4 of their judgment in the following terms:

"4. In relation to the claim of discrimination on the grounds of her race the Claimant made no attempt to begin proceedings within a period of eighteen months following the alleged incident. She represented that the alleged race discrimination continued for the reason that there was delay in completing a grievance procedure, but the Claimant made no enquiry as to time limits at any time during this period of eighteen months although she is and was during this period evidently a person aware of her rights and, at grievance level, had referred to race discrimination as a matter that affected her employment. In the circumstances we found no reason to extend time limits on the grounds that it was just and equitable to do so."

15. Mr Martin submitted that, in that paragraph, the Tribunal made a number of errors of law. We can summarise his submissions in this way, that:-

1) The Tribunal did not provide sufficient reasons for their decision.

2) They proceeded on the basis that only one incident of race discrimination, that of February 2005, was relied on.

3) They were wrong to conclude that the 18 month period of delay after the February 2005 incident necessarily defeated the claim.

4) They failed to consider or determine whether Ms Fazal was aware of the relevant time limit during that period.

5) They failed to consider the criteria set out in British Coal Corporation v Keeble [1997] IRLR 532 and in particular to consider the balance of prejudice and whether a fair trial could be had despite the delay.

6) They failed to have regard to the absence of any factual dispute as to the events of the incident of 22 February 2005.

16. Ms Smith submits, again in summary, that:-

1) It was for Ms Fazal to establish that it was just and equitable to extend the time limit in circumstances in which the most important act complained of occurred 18 months before the presentation of her claim; on the facts the Tribunal found that she had failed to do so.

2) The Tribunal were exercising a broad discretion; Ms Fazal must, therefore, if her appeal was to succeed, demonstrate that their exercise of that discretion was perverse or in error of law; see Robertson v Bexley Community Centre [2003] IRLR 434.

3) The Tribunal's reasons, albeit briefly expressed, made sufficiently plain why Ms Fazal had failed on this issue.

4) The Tribunal did not treat the delay as necessarily defeating the claim, the length of the delay was a relevant matter for the Tribunal to take into account; the weight they gave to it was a matter for them.

5) The Tribunal did consider and make a finding as to Ms Fazal's knowledge of the time limit; her letters and in particular her letter of 28 February 2005 to the bank showed that she was aware of her rights. The finding that she was so aware included, by implication, a finding that she was aware of the time limits.

6) The Tribunal were not bound to consider each of the factors set out in Keeble; they were required only to consider the factors which were of significance relevance – see London Borough of Southwark v Afolabi [2003] IRLR 220 – and had done so. The Tribunal had taken such a strong view of the delay that other potentially relevant factors were regarded as irrelevant and did not need to be expressly considered. While it was correct that there was a transcript of the bank's interview with a manager involved the 22 February 2005 incident from which it could be seen that there was no dispute on the facts, Ms Fazal had not become aware of that until after she had presented her claim; she always had her own evidence to give as to this incident; the transcript could not explain her delay.

Our decision

17. The principles which applied to the exercise by Tribunals of the jurisdiction to extend time in discrimination cases on the ground that it is just and equitable to do so are well established; and we do not intend, nor do we need, in this judgment to add to them. Those principles support and we accept Ms Smith's submission that the Tribunals have, in exercising that jurisdiction, a broad discretion which can only be successfully attacked on appeal if error of law or perversity (which is of course itself an error of law) is demonstrated. However Mr Martin has not limited his arguments to the facts; and some of his arguments cannot be eliminated by reference only to the width of the Tribunal's discretion.
18. We propose to address Mr Martin's argument as to the shortcomings of the Tribunal's reasons, as briefly set out in paragraph 4, at the end of this part of our conclusions and to consider first Mr Martin's point that that paragraph appears to show that the Tribunal considered only the alleged act of discrimination in February 2005 and did not consider the further seven acts of discrimination or victimisation set out at paragraphs 3.5-3.12 of the first section to the Tribunal's January decision.
19. In our judgment that argument is soundly based. In the first sentence of paragraph 4 the Tribunal referred only to "the alleged incident" which occurred 18 months before the beginning of the proceedings; there can be no doubt that they were there referring to the February 2005 incident. In the second sentence the Tribunal referred to Ms Fazal's explanation of that delay – which they rejected. The third and last sentences contain a conclusion based on the previous two sentences. There is, in the paragraph as a whole, no reference at all to the other alleged acts of discrimination, most of which were said to have taken place much less then 18 months before the beginning of the proceedings and two of which (at paragraphs 3.11 and 12 of the January judgment) were said to have occurred only 2 weeks outside the primary 3 month time limit. Ms Smith, as we would have expected her, candidly accepted that, if the alleged acts of discrimination other than that of February 2005 were put forward as part of Ms Fazal's case, they did not appear to have been considered by the Tribunal. Although the solicitor who conducted the bank's case before the Tribunal was present at the hearing of this appeal and was giving instructions to Ms Smith, it was not suggested by her that Mr Martin had at any time expressly limited Ms Fazal's race discrimination case to that one incident; and the Tribunal should have been able to see from the January judgment that, in the absence of an express concession, it was no so limited.
20. We have reached the conclusion, for those reasons, that the Tribunal erred in law in considering only one of Ms Fazal's allegations of race discrimination and in exercising their discretion without considering the other allegations which had earlier been identified by the Tribunal. In so doing they omitted to take into account relevant factors which might have affected that exercise. We do not say that they would have affected it but certainly cannot say – and we were not invited to say – that they could not have done so.
21. We do not accept Mr Martin's next point, that the Tribunal wrongly considered that the 18 months delay necessarily defeated the claim. That is not, in our view, a correct interpretation of what the Tribunal said in paragraph 4, in which they clearly considered not only the length of the delay but also Ms Fazal's explanation for it and the degree of knowledge which she had of her rights. Had the Tribunal reached their decision on the basis that a delay of 18 months, without more, automatically meant that the race discrimination claim could not proceed, that would have been an erroneous approach; but in our judgment the Tribunal can be seen not to have made that error.
22. It was, however, in our judgment not sufficient for the Tribunal to consider only the length of the delay, the explanation put forward for it and Ms Fazal's knowledge of her rights (whether or not they intended to include within that her knowledge of the time limit). One of the factors which, if relevant, has to be considered by a Tribunal tasked to decide whether it is just and equitable to extend time is the extent to which the delay has given rise to prejudice to one side or the other and to which a fair trial of the claim can be had despite the delay; see Keeble and the decisions of the EAT in Taylor v Defra EAT/6625/02 and A v R EAT/0898/02. Unhappily the Tribunal do not appear, in paragraph 4, to have addressed those issues at all; yet the existence of the transcript to which we have referred above could well have been regarded, had it been considered, as evidence that the primary facts of the February 2005 incident were not going to be in dispute and, therefore, that the passing of 18 months from that date might be less significant and that a fair trial as to that incident might be had despite the delay. The Tribunal did not consider the other alleged incidents of race discrimination at all and therefore did not consider the issue of prejudice and whether a fair trial could still be had in relation to them.
23. This serious shortcoming in the Tribunal's consideration cannot be set aside by Ms Smith's ingenious argument that the Tribunal regarded the extent of the delay as so compelling that it was unnecessary for them to consider or expressly to address other factors. First there is no hint in paragraph 4 of the Tribunal's reasons that that was indeed their thought process. Secondly, relevant factors cannot be considered in isolation; the length of and effect of delay cannot be severed from the prejudice or absence of prejudice which it engendered or from the issue as to whether a fair trial can be had despite the delay. Failure to consider a relevant and significant factor amounts to an error of law; see London Borough of Southwark v Afolabi [2003] IRLR 220 C.A. at paragraph 33.
24. Accordingly for this reason, too, the Tribunal's conclusion that it was not just and equitable to extend the time limits cannot stand and must be set aside. We would add that, if the Tribunal had been correct in limiting their consideration to the factors to which reference is made in paragraph 4, we would have considered that the attack on their reasons did not succeed. The reasons for their conclusions, on their erroneously limited approach, are sufficient to comply with the requirements of the relevant authorities such as Meek v City of Birmingham District Council [1987] IRLR 250. However the Tribunal, in setting out their entire decision in the race discrimination claim in that one paragraph, erred in law, in our judgment, not in giving inadequate reasons but in omitting relevant factors from their consideration as we have set out.
25. Only one course is appropriate so far as this part of this appeal is concerned. The question whether it is just and equitable to extend time cannot be determined by us; it must be remitted to a differently constituted Tribunal for re-hearing.

Constructive unfair dismissal

26. The reasons for the Tribunal's decision on this issue to require Ms Fazal to pay a deposit of £300 in respect of her constructive unfair dismissal claim were set out at paragraph 2 of their judgment as follows:

"2. In relation to the claim of constructive unfair dismissal, (s.95(1)(c) Employment Rights Act, 1996) the only alleged breach of contract originally contended by the Claimant to have been occasioned by the Respondent within time limits, as a last straw event, was an entirely lawful step taken by the Respondent, which was to suspend sick pay under a discretion and in circumstances where the Claimant had not fulfilled lawful conditions imposed upon receiving such sick pay. In the course of this Pre-Hearing Review an additional breach of contract was alleged for the Claimant as being the Respondent's behaviour in requiring the Claimant, whilst ill with a condition of stress and anxiety, to correspond in person and not through an agent, acting on her behalf. This however, added little to the prospect of success as the Respondent, in so requiring, was adhering literally to the terms and conditions of employment. Furthermore the Claimant had omitted to give express written authority to the agent to act on her behalf."

27. Mr Martin's submissions on this issue were, in summary:-

1) Ms Fazal's resignation letter and her claim form contained a number of allegations of conduct on the bank's part which amounted to fundamental breach of the contract of employment; they included the allegation that the bank had behaved in an unreasonable and inconsiderate way to Ms Fazal while she was ill and off work, harassing her and threatening her with disciplinary proceedings; that was not a new allegation; and the suspension of sick pay was not the only conduct within the three month time limit of which complaint was made.

2) Suspension of sick pay was not lawful.

3) It was not necessary for Ms Fazal to prove that any individual piece of conduct on the part of the bank was itself a breach of contract or that the last straw or straws within the last 3 months amounted to a breach of contract; the Tribunal had to decide whether the conduct of the bank of which complaint was made cumulatively amounted to a fundamental breach of contract of the implied term of trust and confidence.

28. There are other arguments set out in the Notice of Appeal and canvassed by Mr Martin to some extent before us which it is not necessary to record or discuss; it is necessary to discuss only the submissions which we have summarised.
29. The Tribunal could only properly have ordered Ms Fazal to pay a deposit pursuant to Rule 20(1) of Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 if they considered that her complaint had little reasonable prospect of success. They gave three reasons for so concluding in paragraph 2, namely:-

1) The suspension of sick pay was an entirely lawful act; and Ms Fazal had not fulfilled lawful conditions imposed upon receiving sick pay.

2) The banks requiring Ms Fazal to correspond with them in person and not through an agent (Mr Martin) was a new complaint and was not a breach of contract.

3) Ms Fazal had not given Mr Martin express written authority to act on her behalf.

30. In our judgment the Tribunal erred in law in reaching their conclusion on this issue on the basis of those reasons. As to the first reason it is well established that 1) breach of the implied term of trust and confidence may consist of a series of actions which cumulatively amount to such breach even though each individual action is not of itself a breach of contract and 2) the last action or last straw which leads to the employee's leaving need not itself be a breach of contract and need not even be unreasonable or blameworthy as long as it is not entirely innocuous and has contributed, however slightly, to the breach of the implied term. See Lewis v Motor World Garages [1985] IRLR 465 and London Borough of Waltham Forest v Omilaju [2005] IRLR 35 at paragraphs 15-22.
31. The Tribunal had to consider whether Ms Fazal had little or more than a little reasonable prospect of succeeding in showing that the conduct of which Ms Fazal complained as a whole amounted to a fundamental breach of the implied term of trust and confidence and that one of the events complained of in the last 3 months of her employment, in particular the harassment, removal of sick pay and threatening of disciplinary proceedings of which she complained, amounted to an act which was more than innocuous and which might be shown to have contributed at least slightly to such a breach. However the Tribunal, manifestly, did not direct themselves to approach their decision according to the established principles to which we have referred and did not ask themselves the right questions. Whether the bank was in law entitled to act as it did, did not, of itself, resolve the issue. Further Ms Smith properly conceded that the removal of sick pay involved the exercise by the bank of a discretion which could only be lawfully exercised if it was not outside the bounds of reasonableness so to exercise it; but the Tribunal did not consider that principle. Ms Fazal's case was that it was not reasonable and could not be said to be reasonable to have removed sick pay in the circumstances.
32. As to the second reason, the allegations that the bank had harassed Ms Fazal by insisting in speaking to her directly was clearly made in the resignation letter and in the claim form. It is true that it is not expressly set out in paragraph 3.1 of the first schedule to the Tribunal's January 2007 judgment; but Mr Martin asserts that it was always intended to be a part of the complaint of the bank's conduct over the last 3 months. Even if the Tribunal were entitled to regard the allegation as new, nevertheless the fact, if it were so, that the bank was adhering to its contractual rights by insisting on speaking directly to Ms Fazal when she was alleged to be ill with a condition of stress and anxiety did not render the bank's insistence on so doing incapable of amounting to conduct which could be regarded as part of a case of conduct cumulatively amounting to a fundamental breach of contract. The Tribunal appear on this issue too, to have acted upon the wholly erroneous view that, if the act in question was not a breach of contract, it could not be relied upon as a last straw. Thirdly there was and is an argument open to Ms Fazal on the terms of the sickness absence policy that the bank was not entitled to insist on speaking personally to Ms Fazal. The third paragraph of the "sickness absence employee guidelines" states:-

"Where the sickness absence lasts more than 7 calendar days you must submit a medial certificate supporting the absence. Medical certificates must be submitted on a regular basis thereafter and, where appropriate, you should discuss the reasons for your sickness absence with your manager to allow them to support you fully and to consider if there is anything they can do to facilitate your return to work."

The seventh paragraph of that document reads as follows:-

While you are away from work due to a longer term sickness absence you must stay in regular contact with your line manager and provide updates on your progress. Your line manager may ask you to attend a face to face meeting which could take place in your home. You should use these conversations to update your manager or any changes to your illness and to discuss any reasonable adjustments you may need to return to work."

33. These provisions give to the bank a discretion to ask for a face-to-face meeting; but it is clearly arguable that such a discretion is not unrestrained. If, for example, Ms Fazal had been expressly advised by her doctor not to speak to the bank (as to which there is an issue between the parties) and the bank were made aware of that advice by the doctor, they could hardly insist on making a visit to Ms Fazal personally. What precisely the circumstances were in which the bank insisted on contacting Ms Fazal personally will have to be investigated by the Tribunal at the trial of Ms Fazal's claim. We are not suggesting that the bank was in possession of advice directly from a doctor; but it is Ms Fazal's case that the bank was informed by Mr Martin that she had received medical advice that she should not be in contact with the bank and yet insisted on speaking to her perfectly. The bank's view is that Mr Martin was unhelpfully interposing himself between them and Ms Fazal and that such limited medical evidence as was provided to them did not support the position which was being put forward. In these circumstances the Tribunal did not, as they should have done, consider whether the bank could reasonably be said to have acted unlawfully in insisting on direct contact with Ms Fazal; they appear to have considered, in error of law in our judgment, that the document gave the bank an unfettered right to insist on direct contact. If they had assessed the position in law correctly, they could not reasonably come to any conclusion other than that there was that there were factual disputes which had to be explored; they could not within the bounds of reasonableness have concluded that the bank could not be shown to have behaved or that there was little prospect of showing that they had behaved unreasonably or outside the limits of the discretion given to them by their policy document.
34. As to the third reason, we have not seen any requirement in any document that anyone who purported to act for an employee, or Ms Fazal in particular, in dealing with the bank had to have written authority from that employee. Nor is there any evidence that the bank had ever asked for such written authority. Indeed it is not clear that the bank was challenging Mr Martin's authority; paragraph 15 of their response, which says "the Claimant refused to have any contact with any person connected with the Respondent but instead allowed Mr Martin to communicate on her behalf" appears to indicate that they were not challenging his authority. Ms Smith suggested that this third reason given by the Tribunal may only have been a minor factor in their conclusion; but it appears to have been a factor to which the Tribunal gave some weight; we are entitled to ask why otherwise did they set it out in paragraph 3 prefacing it with the word "furthermore". Reliance on this reason was a further error of law on the part of the Tribunal.
35. For these reasons the Tribunal's decision that Ms Fazal must pay a deposit in respect of her constructive dismissal claim must be set aside.
36. Both Mr Martin and Ms Smith agreed that, on this issue, if we decided that the Tribunal's decision could not stand we were in as good a position as the Tribunal to decide it and we should do so without remission. We agree with this pragmatic approach; no further factual enquiry is necessary.
37. We wish to make it clear that, in deciding this issue ourselves, we are not giving any indication as to which party is likely to win or lose on the constructive dismissal issue when all the relevant evidence has been considered. We have to answer only the narrow question identified in paragraph 31 above; and our answer to that question is that, in our view, it cannot be said that there is only a little chance of the constructive dismissal claims succeeding. There will, at trial, have to be considerable evidence as to whether Mr Martin and Ms Fazal were taking an unreasonable stance, whether the bank was taking such a stance or whether all were behaving unreasonably. There is clearly a dispute as to whether the medical advice was that Ms Fazal should not talk to the bank; the medical certificates did not expressly go that far; but neither the bank nor Capita, to whom the bank referred Ms Fazal's case appears to have asked if they could talk to Ms Fazal's doctor directly - as might be seen as part of a reasonable approach. If the doctor had told Ms Fazal or Mr Martin that Ms Fazal should not talk to the bank directly or if either Mr Martin or Ms Fazal reasonably believed that that was the effect of the medical advice which they received they might not have been acting unreasonably; and if the bank should have realised that that might be the case and failed to make sufficient enquiries, criticism might be appropriate. These matters can only be resolved at trial; the outcome cannot be said to be so clear that Ms Fazal's prospects of establishing a constructive dismissal should be regarded as so low that a deposit should be required.
38. Ms Smith pointed out that the failure to pay overtime as claimed by Ms Fazal was said in her resignation letter to have ceased in March 2005 and that the other matters of which complaint is made were well outside the three month time limit. Without a last straw they would have been waived; or Ms Fazal could not be said to have resigned because of those matters. However, for the reasons we have set out, there are sufficient prospects of Ms Fazal's establishing a last straw within the 3 months prior to her resignation, which, if established, would have permitted her to rely on the earlier matters of which she complains, to enable her successfully to resist the application for a deposit. Accordingly we consider that no order for a deposit in respect of the constructive dismissal claim should be made.

Sex discrimination

39. The Tribunal's conclusions upon the application that Ms Fazal should pay a deposit in respect of her sex discrimination claim are set out in paragraph 3 of their judgment in these terms:-

"3. In relation to the claim of sex discrimination, the Claimant made representation that such discrimination is established by the proposition that the Respondent's promotion policy favoured men over women. The policy was stated to require all employees to serve the Respondent in a given position for a defined number of years before applying for a change of position. The proposition is founded upon the situation of many women taking time out of a career to have children and raise a family thereby reducing the time and opportunities within which to make application for promotion. Accordingly the Respondent's promotion policy is contended to be discriminatory in its nature and Claimant, by being subjected to it was discriminated against on the grounds of her sex. The Claimant had made two unsuccessful applications for promotion (but it was not suggested that she had as yet taken leave in order to start a family). The discrimination alleged would, if established, seem to apply to all women who voluntarily interrupt their employment to have children and to raise a family. How the difference of treatment of male and female employees arising from the absence from employment of females occasioned by maternity leave and childbirth, can amount to discrimination is not apparent to the Tribunal and the view is taken that the claim, consequently, has little reasonable prospect of success."

40. It was not in issue before the Tribunal or before us that the bank operated a policy by which employees in post could not apply for a different post, including by way of promotion, until they had been in post for 24 months – or in the case of a "relationship role" i.e. a role involving an interface with the public - 48 months. It was the 24 months requirement which applied to Ms Fazal. In her claim form she contended that that policy constituted indirect discrimination because the bank employed more women then men and women's careers were liable to interruption when they had children; therefore the policy adversely and disproportionately affected women. At paragraph 1d she contended that the policy had been applied to her so as to prevent her from changing her post; and this was the subject of explicit complaint in her resignation letter. The bank, in their response to the claim form, admitted the policy and that on one occasion an application by Ms Fazal for another post had been rejected. They denied that the policy constituted a provision, criterion or practice which put women at a disadvantage and, alternatively, contended that the policy was, to use outdated short-hand, justifiable.
41. At the CMD in January 2007 the Tribunal said, at paragraph 3.2:

"3.2 Sex discrimination:- It is admitted that none of the acts relied upon fall within the statutory time period. It is said that the Respondent's policy of not permitting applications for promotion to be made unless the employee has been in their existing grade for a specified period of time is indirect discrimination since the Respondent employs more females than males."

42. From these documents there would appear to have been no doubt that Ms Fazal was relying upon a continuing policy which was said to be indirectly discriminatory and that she had herself been subjected to detriment as a result of the application to her of that policy. It was common ground that the rejection of any application by Ms Fazal to change posts had occurred more than 3 months before the commencement of her claims; but that was not the basis on which the Tribunal ordered her to pay a deposit. The Respondent's answer to this appeal does not contend that the Tribunal's decision should be upheld on the basis of the time limit, on which the Tribunal did not rely.
43. The sole reason given by the Tribunal for their order is that set out in the last sentence at paragraph 3 of their judgment.
44. It is not necessary for us to set out Mr Martin's submissions upon this issue; they included the submission that the bank's policy on its face disproportionately disadvantaged women as opposed to men by reason of the greater difficulty in the case of women in achieving the required period in post arising from the effect of childbearing and childcare and that Ms Fazal had suffered detriment as a result of the application of the policy to her.
45. Ms Smith accepted that the policy amounted to a provision, criterion or practice; but, she submitted, it was insufficient for Ms Fazal to assert that women were put at a disadvantage by the policy simply because the bank employed more women then men. The true issue, she argued, was whether women were put at a disadvantage by the length of tenure they had to have in - post as compared with men; and no figures that, on that basis, women were disadvantaged had been put forward nor any such disadvantage asserted. Thus the Tribunal were entitled to conclude that, on that basis, Ms Fazal had little prospect of success. We pointed out to Ms Smith that this approach was not the basis of the Tribunal's conclusion; she very fairly responded that the last sentence of paragraph 3 was "unfortunately worded".
46. That sentence, in our judgment, reveals that the Tribunal either had not appreciated or had misunderstood the true nature of this aspect of Ms Fazal's claim, it being based on indirect and not on direct discrimination. In the field of indirect discrimination the argument that an employer's policy is indirectly discriminatory because it requires a qualifying period of some type before a benefit is achieved, which period women can less easily fulfil than can men, can fairly be said to be a familiar. It may or may not be that figures as to the number of females as compared with the number of male employees are insufficient; but on another view the proportion of male to female employees is at least relevant. Plainly there is an issue which will have to be resolved if the indirect discrimination claim reaches trial; but in our judgment the Tribunal erred in law by, in effect, concluding that there was little reasonable prospect of Ms Fazal's succeeding in establishing indirect discrimination on the basis that the difference of treatment of male and female employees arising from the effects of maternity leave and childbirth could amount to discrimination. In our judgment the Tribunal must either have failed to appreciate the true nature of Ms Fazal's indirect discrimination claim or reached a decision which no reasonable Tribunal could reach; either way they erred in law. It could not reasonably have been said that there was only a little reasonable prospect of her establishing this claim.
47. On this issue, too, it was agreed that ,if the Tribunal had erred in law, we had sufficient material for remission to be unnecessary; and we have reached the conclusion, for the reasons we have set out above, that, of course without indicating in any sense that Ms Fazal's claim will succeed, the prospects of success are not so low as to justify an order for the payment of a deposit. There is a substantial argument that the policy was prima facie indirectly discriminatory; and we have not been asked to consider and have not considered justification; that issue will have to be resolved on the evidence if and when Ms Fazal's claims are the subject of a full hearing.

Conclusion

48. For the reasons we have set out the appeal is allowed; as to the race discrimination claim we set aside the Tribunal's order striking it out and remit the issue as to whether it is just and equitable to extend time to a differently constituted Employment Tribunal. As to the constructive dismissal and sex discrimination claims, we set aside in both cases the order that Ms Fazal should pay a deposit; and any strike-out orders made as a result must also be set aside.
49. We need to make two further comments. The first is, that although – as we have said earlier – Mr Martin has plainly put in an enormous amount of study and effort on behalf of Ms Fazal and has been successful in this appeal, he has perhaps over-elaborated the arguments and reference to authority and thus to a degree has made less than entirely clear to the Tribunal where the real merits of Ms Fazal's case may lie. We intend no criticism in saying this; but we are concerned that simplicity should prevail over potential confusion and, while it is certainly not for us to give advice to litigants, we express the strong view of all of us that it might be beneficial if Ms Fazal and Mr Martin henceforth had professional representation in this litigation against the bank.
50. We say that particularly having in mind that the Tribunal may regard it as wise, either before or after the issue remitted to them had been decided, to hold a further CMD to ensure that the issues to be determined at trial in respect of each claim which is to be tried are unequivocally and finally identified.