Bryant v Housing Corporation [1998] EWCA Civ 866

EWCA-Civ
Bryant v Housing Corporation
[1998] EWCA Civ 866 · 1998-05-21
MR A HOCHHAUSER QC and MR W BIRTLES (instructed by Messrs Trowers & Hamlins, London WC2) appeared on behalf of the Appellant Respondent.MR M WYNNE-JONES (MR S EVANS 21.5.98) (instructed by Messrs Keith Bright, Birmingham) appeared on behalf of the Respondent Appellant.

J UDGMENT

(As Approved by the Court)

Crown Copyright

Thursday, 21st May 1998

LORD JUSTICE BUXTON:

This is an employer's appeal, brought by leave of the single Lord Justice, from an order of the Employment Appeal Tribunal [the EAT] dated 20 January 1997, which allowed the employee's appeals from two decisions of an industrial tribunal [IT] dated 21 March 1996 and 19 April 1996.

The background facts

Mrs Bryant was employed by The Housing Corporation with effect from 4 May 1993 as a "Performance Review Manager". This was a senior post, as is demonstrated by the salary of some £31,000 that attached to it. She was informed on 21 July 1995 that she would be dismissed with effect from 22 October 1995. She applied to the Industrial Tribunal [IT] on that same day on Form IT1, stating in the relevant box on the form that her complaints were:
"A) Unfair Dismissal B) Unlawful Deduction from Wages/Breach of Contract C) Sex Discrimination."
We have not been concerned in these proceedings with the wages claim. Under "details of your complaint" she submitted a nine page document. Six pages came under the heading "unfair dismissal", and a separate two pages under the heading "sex discrimination". Mrs Bryant drew these documents up herself, having however taken advice from the solicitor who had previously advised her in connexion with her difficulties with her employers.The sex discrimination complaint related to an appraisal interview that Mrs Bryant had had with the then Regional Director of The Housing Corporation on 5 November 1993 at which, if the matters alleged in the IT1 were correct, he made offensive and improper observations of a sexual nature. Mrs Bryant complained of this matter to her employers who, in her view, investigated them in an insensitive and unfair fashion. This matter concluded with a letter to Mrs Bryant from The Housing Corporation dated 5 July 1994, which stated that The Housing Corporation had found that the Regional Director's comments had been wholly inappropriate and uncalled for and inconsistent with the organisation's Equal Opportunities Policy. Mrs Bryant in her application to the IT described this as a grudging letter that offered no apology. At the same time and, as Mrs Bryant acknowledged, as a result of her complaint, the Regional Director who had been criticised left The Housing Corporation.

The applications to the IT

Mrs Bryant recognised in her application that the complaint of sexual discrimination fell outside the three month time limit; I interpose to say that there was of course no limitation problem with regard to the complaint of unfair dismissal, which I understand is still on foot, awaiting the outcome of this appeal. The IT held a preliminary hearing on 21 March 1996 at which, after hearing submissions by both parties, it determined that the complaint of sex discrimination should be dismissed on that ground. In its reasons for that decision the IT said:1. The application alleging discrimination on grounds of sex was presented on the 21 October 1995. The case is pleaded in detail therein. It is admitted that the complaint arose more than 3 months before the date of presentation of the application. The tribunal is asked to use its discretion provided by Section 76 of the Sex Discrimination Act 1975.2. The act complained of occurred, at the latest, on the 5 July 1994. The incidents giving rise to it happened even earlier. The applicant did not pursue the matter then for fear of reprisal from the respondent. The tribunal is satisfied that the act complained of was not the applicant's dismissal, nor can it be said that there was a continuing act.3. It is not just or equitable to extend the time limit because-a) the applicant is a professional woman who can be said to be aware of her rights;b) she was aware of her grievance at the time;c) the delay in presenting a claim was her decision in the light of her employment position.At that hearing The Housing Corporation was represented by counsel. Mrs Bryant was represented by an organisation called Employment & Labour Law Consultants Ltd which holds itself out as qualified to advise in employment law, and in connexion with employment proceedings. The person from that organisation who handled Mrs Bryant's case was a Mrs Kynes-Dobbie. On the day after the hearing, on 22 March 1996, Mrs Kynes-Dobbie wrote to the IT a letter that in its relevant part said:we would ask the Chairman of the tribunal to accept that in setting out her unfair dismissal claim and her sex discrimination claim the applicant has raised by way of facts and complaints sufficient grounds to claim relief for victimisation under s 4(1) of the Sex Discrimination Act 1975 (SDA) and the enclosed Schedule refers to these details. This matter was raised during the preliminary hearing. No ruling was made upon it.Moreover, the claim of victimisation is an intrinsic part of the applicant's reasons for maintaining inter alia that the reasons for dismissal makes the true reason for the termination of her employment although nowhere in the pleadings is a claim under s4(1)SDA expressly stated.To remove immediately one distraction from the case, the EAT concluded that Mrs Kynes-Dobbie had not raised the issue of victimisation at the hearing before the IT; no attempt has been made before us to disturb that conclusion; and I say no more about that allegation.In the schedule annexed to Mrs Kynes-Dobbie 's letter, which was headed "Application to Amend the Originating Application" reference was made to four comparatively brief extracts from the complaint, one from the section headed unfair dismissal and three from the section headed sex discrimination, that were said to support the contention that "in the course of setting out her grounds for unfair dismissal and sex discrimination [the applicant] has raised sufficient grounds for claiming relief for victimisation". The application was not copied to The Housing Corporation, but on receiving a copy of it from the IT the solicitors to The Housing Corporation wrote to the IT on 15 April 1996 expressing their opposition to the application on various grounds, including that the allegation of victimisation would increase the evidence before the tribunal, in that various witnesses, involved in the alleged victimisation but not necessarily in the unfair dismissal allegations, would then be required to give evidence.This application was considered by the chairman of the IT, who had presided at the first application on 21 March 1996. The applicant appears to have been disposed at one stage to complain that the matter had not been heard by a full tribunal, but that objection is not now pursued. By letter dated 19 April 1996 he dismissed the application, sayingThe case as pleaded reveals no grounds for such a claim. The application is out of time and it is not just or equitable to extend the time limit.

The appeal to the EAT

Mrs Bryant appealed against that decision. So far as matters still relevant to the appeal before us are concerned, she complained on two grounds. First, that the Chairman's decision that the case as pleaded revealed no grounds for a claim of victimisation was perverse. That complaint was supported by extensive analysis of and reference to the content of her application, that analysis going, in both length and content, far beyond the schedule claiming to demonstrate the basis of the victimisation claim that had been placed before the chairman of the IT. Second, that the Chairman had failed to give any reasons for deciding that it was not just and equitable to allow the "claim" (by which was properly meant, the amendment specifically to allege victimisation) out of time.

The jurisdiction of the EAT and of this court

The jurisdiction of the EAT on appeal from an IT is limited to matters of law. That limitation defines the role both of the EAT and of this court. It has the effect of causing this court to look carefully at the original decision of the IT as well as at that of the EAT. That is the case where it is sought to complain of decisions as to the fairness of a dismissal which, being decisions of fact, can only be challenged on grounds of perversity: see Campion v Hamworthy Engineering [1987] ICR 966. The same limited approach applies to appeals, such as in our case, against procedural or interlocutory orders of the IT, where an appellate court whose jurisdiction is limited to matters of law can only interfere where there has been a breach of well-established legal principles such as failing to take account of relevant factors: see per Mummery J in Kwik Save Stores v Swain [1997] ICR 49 at p54F. As this court put it in X V Z Ltd [1998] ICR 43 at p54C, this approach reflects the fact that the tribunals themselves are the best judges of case management decisions.Therefore, in hearing appeals from the EAT the first question that this court has to address is whether there was an error of law on the part of the IT that gave the EAT its jurisdiction. That obligation is reflected in what was said by Sir John Donaldson MR in another case concerning amendment of an IT application, British Newspaper Printing Corporation v Kelly [1989] IRLR 222 at p224, where this court upheld a decision of the EAT reversing the IT's decision becausethere is sufficient evidence here that the Tribunal probably misdirected itself for us to affirm the decision of the Employment Appeal Tribunal setting their decision aside.

The judgment of the EAT

In the present case the EAT identified two errors of law that had been committed by the chairman of the IT in his ruling of 19 April 1996. To see how the EAT reached that determination it is necessary to set out a substantial part of the EAT's judgment.
"The difficulty which we have in this case is caused, we think, by the way in which the Applicant had presented her IT1, divorcing and separating out in formal terms the various allegations that she was making. It seems to us that had she put together her IT1 in relation to unfair dismissal and to sex discrimination and simply told the story, it would have become manifestly obvious that there was a question to be asked as to whether there was a linkage between the alleged sex discrimination and the dismissal. There were events which she was alleging occurred, which suggested that the employers had wanted her out because she had made such a complaint. Accordingly, even though the words setting out the necessary causative link between the making of the complaint of discrimination and the dismissal were absent from the IT1, bearing in mind that this was an applicant who was representing herself, we have no doubt that if in those circumstances the question had arisen as to whether the Tribunal should entertain her claim of victimisation, any Tribunal would have concluded that it should.
It seems to us that the second difficulty with which we have been confronted is caused by what can only be considered to be the incompetence of the representative of the Appellant. If it was the representative's intention to raise a complaint of victimisation, then she should have done so in terms which were plain, so that the Chairman dealt with it. If it became apparent that despite her submission the Chairman of the Tribunal had not understood that she was making such a contention, then it was her duty to make sure that the contention was properly before the Tribunal before she moved on to other submissions. It seems to us extremely regrettable that on the first occasion the representative of the Appellant did not have in her hand a suggested amendment to the IT1 so as to make the linkage between the dismissal and the discriminatory conduct abundantly clear. Furthermore, it seems to us that having let the matter slip, it was not satisfactory that the Chairman should be invited to deal with the application for leave to amend in the way in which it was then dealt with. It seems to us that this was a matter which required proper argumentation to inform the Chairman of the reasons why, it would appear on analysis, that there was implicit in the IT1 a linkage between the dismissal and the sex discrimination, and even it that were not so, that it was a case which obviously required to be heard and determined since there was a considerable overlap between the two matters and it would not do justice to the parties to examine the unfair dismissal complaint without also dealing with what she thought was the reason why she had been dismissed.It is not all surprising in the light of that incompetence, that the Industrial Tribunal Chairman should, as in our judgment he has, erred in law in arriving at his second decision. It seems to us that because he was not presented with the analysis which was plainly required of any competent adviser, he concluded that the case as pleaded revealed no grounds for such a claim. On the contrary, it seems to us that on careful analysis the case as pleaded did reveal some grounds for such a claim. Again, when he says that the application is out of time, he ought to have had his attention drawn to the difference between the time limit provisions in relation to the allegations of sex discrimination in the IT1 on the one hand, and the time limit that he was concerned with in relation to a victimisation claim, where the act complained of was the dismissal, on the other.In the latter case it was, as we have indicated, a period of some two months and no more. Accordingly, it seems to us, that the learned Chairman was wrong when he sought simply to apply the same just and equitable reasons that he had previously given for refusing to extend the time limit to the circumstances with which he was then faced. Therefore, it seems to us, we are in a position where through those two matters in particular, the Tribunal has erred in law.We are of the view that the appeal should be allowed. That the Appellant should be permitted to amend her IT1, so as to plead, expressly, that her dismissal was by reason of her having made a complaint of sexual harassment against her line manager. We would allow that amendment to be made."

The errors of law

The errors of law on the part of the Chairman identified by the EAT were thus(i) failing to find that the claim as pleaded did reveal some grounds for a claim of victimisation;(ii) applying the same approach to the assessment of just and equitable reasons for amendment in respect of the victimisation claim as he had in respect of the sex discrimination claim, and doing so without noting the different periods by which the respective claims were out of time.The first of these points is presented by the EAT as if it were a separate conclusion by the Chairman, that can be considered separately from his principal ruling on the application to amend. However, the Chairman dealt with this matter at all only because, although it was conceded that a victimisation claim had not been made in the original application, it was asserted in the application of 22 March 1996 that Mrs Bryant had already "raised sufficient grounds for claiming relief for victimisation". That argument was put forward not as a separate point, but as a reason for the Chairman to exercise his discretion in favour of the amendment. It cannot have been an argument that there was an actual claim of victimisation in the original application, because if so no amendment would have been required. Viewed in that light, the Chairman's ruling that "the case as pleaded reveals no grounds for such a claim" becomes not a ruling on a point of construction, but merely a finding as to the content of a document that is relevant only to an exercise of his discretion. If that is the status of that part of his remarks, it was not open to the EAT to differ from his conclusion unless it was plainly unreasonable: a judgement that is not sufficiently contained in the EAT's observation that "on careful analysis the case as pleaded did reveal some grounds for such a claim".I do not consider, therefore, that this part of the Chairman's decision revealed an error of law that it was open to the EAT to correct. However, if I am wrong on that point, and it is therefore open to the EAT, and to this court, to construe the document for itself, I go on to say that I am unable to agree with the construction of the document adopted by the EAT. If the error is characterised as one of construction, as this approach to the EAT's argument requires, it is not enough to say that the document reveals some grounds for a claim of victimisation, or indicates that there is a question to be asked as to the linkage between the alleged sex discrimination and the dismissal. That linkage must be demonstrated, at least in some way, in the document itself.In an attempt to establish that the document fulfilled that requirement we were taken through the original application in very great detail: as I have already said, in terms very different from those that were urged on the Chairman in the application of 22 March 1996. It is true that Mrs Bryant complains that she was harassed by The Housing Corporation, including its Chief Executive, over a long period; that she had been told that she had little future in the organisation; that she had been told that the Chief Executive was angry with her because of her complaints about the Regional Director; and that complaints from a particular client of The Housing Corporation that led to the dismissal procedures came shortly after she had been criticised by him to the Chief Executive on a social occasion. Mrs Bryant however nowhere takes what would have been the obvious opportunity, if as she now alleges her dismissal was an act of victimisation, to relate any of these factors to that dismissal. When at the end of this part of her application she set out, in considerable detail, the reasons why "I contend that the dismissal is unfair" she made no mention of victimisation. In dealing with the client's complaint she made no suggestion that it had been fomented by the Chief Executive, or by anyone else in The Housing Corporation, as a reprisal for her action against the Regional Director; nor that it was a desire to be rid of her for that reason that caused the complaint to be dealt with, as Mrs Bryant thought, unfairly.As the EAT said, the words making the necessary causative link between the making of the complaint of discrimination and the dismissal were absent from the application. But if this is to be taken as a question of construction, as a matter of law, and not merely of the judgment and assessment of the Chairman, the absence from the document of any such linkage must be fatal: because the issue of construction is whether the document makes a claim in respect of victimisation.I have been forced to express this issue in what may appear to be artificial and technical terms because it is only if it characterised as a technical issue, of legal construction, that the EAT had jurisdiction to consider it at all. But the reality is that which I expressed earlier: this was not a separate legal issue, but merely part of the Chairman's assessment of the reality of the claim, an assessment that can only be interfered with by the EAT, or by this court, if it was perverse. There are no grounds to justify such a conclusion.The appellants expressed a further objection to this part of the EAT's judgment, that in their view the EAT had approached the matter on the basis that the lack of skill displayed by the adviser to Mrs Bryant in not expressing the victimisation claim clearly, or in not expounding the case properly to the Chairman, was in itself a reason entitling the EAT to intervene. If the EAT had so proceeded it would have been in error: Kumchyk v Derby City Council [1978] ICR 1116 . I do not however think that that was how the EAT did approach the matter. Their references to the poor representation that Mrs Bryant had received were made only as a background to or explanation of the errors that as they thought the Chairman had committed.I turn to the second of the errors of law allegedly made by the Chairman. Here I have to say that the EAT was not justified in assuming that the Chairman had simply applied the same thinking to assessment of the victimisation claim as he had to assessment of the sex discrimination claim; or that he would have been so wrong as to be irrational if he had so done. The applicant's complaint about this part of the decision was limited to a complaint that no reasons had been given. By deciding not to remit the matter the EAT inferentially at least decided that that complaint had no substance; but it was not then open to them to assume what the reasons had been and that those assumed reasons were perverse. Not only did the Chairman have the benefit of his previous and recent exposure to the case, but also he had received further submissions specific to the new question before him not only from the applicant but also from the respondent, in their solicitors' letter of 15 April 1996. There was no material before the EAT from which it could conclude that the Chairman had ignored those submissions, or otherwise acted perversely; and thus, to adapt the words of Sir John Donaldson MR in British Newspaper Printing Corporation v Kelly , cited above, no sufficient evidence that the Chairman probably misdirected himself. There was therefore no basis on which the EAT could intervene.Such restraint on the part of the EAT is particularly important in the context of the expert status of the IT, and the limited power of the EAT to differ from its judgement. I venture to repeat what was said by Lord Russell of Killowen, sitting in this court in Retarded Childrens Aid Society v Day [1978] 1 WLR 763 at p 769 G:The function of the Employment Appeal Tribunal is to correct errors of law where one is established and identified. I think care must be taken to avoid concluding that an experienced industrial tribunal by not expressly mentioning some point or breach has overlooked it.

Conclusion

For the reasons indicated I would allow this appeal. I would venture to add one further point, by way of footnote. The EAT noted that although it was considering an application for leave to amend, there was before it, as before the IT, no formulated draft amendment. The informality that characterises industrial proceedings prevented that lapse from being treated as dispositive or, indeed, even of particular relevance. However, since leave to amend was granted by the EAT there has been drawn up, by Mrs Kynes-Dobbie on behalf of Mrs Bryant, a lengthy amended set of particulars, extending to some 30 pages. It is noteworthy that this "amendment" commences by striking out the whole of the original particulars, and substituting an entirely new text. I think that if the EAT had had the benefit of having this document before them it would have been readily apparent that, as the Chairman of the IT in effect concluded, the exercise proposed was not a rectification or expansion of the original claim, but an entirely new claim brought well out of time.

LORD JUSTICE PETER GIBSON:

I also agree that this appeal should be allowed. But as we are differing from the Employment Appeal Tribunal, I add a few words of my own.On this appeal this court, as a second-tier appellate court, is concerned with whether the Industrial Tribunal Chairman erred in law so as to give the Employment Appeal Tribunal the right and duty to interfere. Mr. Wynne Jones for Mrs. Bryant has supported the Employment Appeal Tribunal's identification of two errors made by the Chairman in his letter of 19 April 1996.The first error was said to lie in the Chairman's conclusion in relation to the claim of victimisation:
"The case as pleaded reveals no grounds for such a claim."
It is important to bear in mind what had to be established for the victimisation claim under the Sex Discrimination Act 1975. Mrs. Bryant had to establish that the employer had discriminated against her by dismissing her (s.6(2)(b)), the discrimination in question being that defined in s.4, viz. treating her less favourably than in the circumstances it treats or would treat other persons and doing so by reason that she did a protected act, namely that she had alleged that the employer or any other person had committed an act which (whether or not the allegation so stated) would amount to a contravention of the Act (s.4(1)(d)). It is therefore a crucial element in such a claim that the less favourable treatment constituted by her dismissal was by reason that she has made the allegation.Mr. Wynne Jones was invited to show where in the originating application it was said that there was that necessary causal connection between the allegation in May 1994 against the Regional Director arising out of the incident in November 1993 and the dismissal of Mrs. Bryant in 1995. Mr. Wynne Jones accepted that it was not pleaded expressly, but he submitted that the Employment Appeal Tribunal was right to say that the case as pleaded "revealed some grounds" for a claim of victimisation. In my judgment unless those grounds are sufficient to sustain a claim of victimisation, that is not good enough to found the interference with the Chairman's decision as erroneous in law. Having looked with care at Mrs. Bryant's originating application I would respectfully agree with the Chairman's assessment. The requisite causal connection is conspicuous by its absence. I would add that despite the grant of leave by the Employment Appeal Tribunal to amend the originating application to plead that "[Mrs. Bryant's] dismissal was by reason of her having made a claim of sexual harassment against her line manager", one looks in vain for a clear averment to that effect in the extensively amended originating application, the closest there is being the pleading, "After raising her formal grievance, the applicant was subjected to several months of victimisation and ultimately dismissal by the respondent contrary to s.4(1)(d) of the 1975 Act."The second error was said to lie in the Chairman saying:
"The application is out of time and it is not just and equitable to extend the time limit."
Again Mr. Wynne Jones supports the reasoning of the Employment Appeal Tribunal. The first point taken by it was that the Chairman ought to have had his attention drawn to the different time limits for sex discrimination in the IT1 and the time limits for a victimisation claim. But that is not an error by the Chairman, who by his own account was "well aware of and experienced in the technicalities of victimisation allegations." The Employment Appeal Tribunal asserts that the Chairman "sought simply to apply the same just and equitable reasons that he had previously given for refusing to extend the time limit to the circumstances with which he was then faced." It is not apparent to me that there was any factual basis for that assertion. The Chairman, when faced with the application on behalf of Mrs. Bryant by letter dated 22 March 1996 to exercise his discretion to amend the originating application, requested the employer's comments on that letter. The employer's solicitors responded with a 3-page letter on 15 April 1996, explaining the employer's opposition to the further claim for sex discrimination. The Chairman must be taken to have considered all the material put before him when he gave his decision on 19 April 1996. It was incumbent on Mrs. Bryant to explain the delay in bringing a victimisation complaint, but she did not. I am unable to find any error of law in the Chairman refusing the application.In truth it appears likely to me to have been a deliberate decision taken by and on behalf of Mrs. Bryant not to claim victimisation both in the IT1, which was completed by Mrs. Bryant herself after consulting the solicitor who had advised her in the course of the disciplinary proceedings, and at the hearing on 21 March 1996 when Mrs. Bryant's representative was fully alive to the need to apply to amend the originating application. In my judgment the decision of the Chairman on 19 April 1996 was one which has not been shown to have involved any error of law and, with all respect to the Employment Appeal Tribunal, it was not entitled to interfere with that decision.For these as well as the reasons given by Buxton L.J. I too would allow the appeal.

LORD JUSTICE NOURSE:

I agree with both judgments.

Order

appeal allowed with costs not to be enforced without the leave of the court; order of the Employment Appeal Tribunal discharged and order of the Industrial Tribunal of 19.4.96 restored; legal aid taxation of the respondent appellant's costs; leave to appeal to the House of Lords refused. [Not part of approved judgment]

Cited in 1 later judgment