Beevor v Haberdashers Aske's School For Girls [1992] UKEAT 19_92_1112

EAT
Beevor v Haberdashers Aske's School For Girls
[1992] UKEAT 19_92_1112 · 1992-12-11

JUDGE J HICKS QC:

This is the preliminary hearing of an appeal by Mrs K H Beevor against the dismissal by the Industrial Tribunal of an application by her alleging sexual discrimination against her by her employers, the Respondent Board of Governors of Haberdashers Aske's School for Girls.The chronology is of some importance. Mrs Beevor's employment commenced on 1 September 1978. On 29 January 1990 a letter of dismissal was addressed to her, which we have not seen, but it is common ground that it was expressed to expire on 30 April 1990. On 23 March 1990 what is described in the documents as a "domestic appeal" against that decision, what Mrs Beevor, through her father and representative, Mr Roper, calls at one point a "grievance procedure", was heard and decided against her. The notice of dismissal, if effective, took effect, therefore, on 30 April 1990 and it is common ground, as we understand it, that her pay ceased on that day.On 26 July 1990 she issued an originating application alleging unfair dismissal, and it is stated in the letter before us from the Chairman of the Industrial Tribunal, and accepted by Mr Roper, that that originating application stated the 30 April 1990 as the date of dismissal. On 5 September 1990 that claim was struck out and dismissed for lack of jurisdiction on the basis that, as indeed the dates I have given clearly show, Mrs Beevor had not been employed for the necessary two year period.On 23 November 1990 there was a hearing before an Industrial Tribunal on a matter that is not directly in issue, but on that occasion Mrs Beevor sought to raise the question whether the dismissal could be complained of, not under the unfair dismissal provisions of the statutes, but as sexual discrimination. Although it could not be dealt with in the course of that hearing she lodged an Originating Application on that basis dated 17 December 1990.On 23 February 1991 that claim was dismissed by the Industrial Tribunal, and it is against that decision that Mrs Beevor now appeals. The reason given by the Industrial Tribunal for dismissing that application was that it was out of time, and they considered whether to exercise their discretion to extend time and decided not to do so. Their reasons, after reciting the history of her employment and her previous application for unfair dismissal and an order made under Section 53 of the Employment Protection (Consolidation) Act for two weeks' pay, read in paragraph 6:
"6 The applicant launched these proceedings on 19 December 1990 basing her case on alleged discriminatory treatment in respect of her dismissal on 29 January 1990 which took effect on 30 April 1990 compared to that of a male colleague who it was claimed was similarly incapable to her but received an oral warning on 22 March 1990 and a written warning on 2 May 1990, and subsequently resigned on 20 August 1990. She claims that once she learnt of the preferential treatment accorded to him, inasmuch as he was warned whereas she was not, ....."

- and I interpolate that it is her case that that was not until November 1990-

"......... she took energetic steps to bring these proceedings."

7 We consider this to be an extremely weak case."The Tribunal then give reasons for that conclusion and finally, in paragraph 8 the Tribunal say:
"8 We apply the test laid down in Hutchinson v. Westward Television Ltd [1977] ITR 125, EAT and in the exercise of our discretion we do not think that it would be just and equitable to extend time."
In her grounds of appeal, the Appellant makes a number of complaints, which can be summarised as follows:
"6.1 There was a perverse and unlawful act on the part of the Chairman of the Tribunal in that he did not allow the appointed lay representative of the applicant to present the facts of the case and to properly represent his client."
Then in 6.2 the point is raised - which was the matter which was chiefly relied upon before us - that the Appellant and Mr Roper, who represented her then as he does now believed that there would no consideration of the merits of the case, since it was only the matter of time which was to be dealt with. However the Tribunal, in fact, treated it as what Mr Roper calls a "pre-assessment" dealing with the merits.The Notice of Appeal then sets out what is alleged to have happened at the hearing. There is a reference to the Chairman allegedly being in awe of the Respondents' representative who was a Barrister and a complaint, or so it would seem, in paragraph 6.5 of bias on the part of the Chairman in favouring a professional representative.In 6.6 the Notice of Appeal comes back to the main point argued before us by Mr Roper: "Even if the Chairman was right (which is strenuously denied) that the Sexual Discrimination Case was a weak one, this was not the point of issue and the lay representative was not allowed to argue the true facts that the application was not out of time.That is developed in 6.7. Paragraphs 6.8 and 6.9, as we understand them, are really complaints not about the hearing on 23 February 1991, but of the proceeding before the earlier, different, Tribunal on 23 November 1990 and do not, therefore, figure in the present appeal.Paragraph 6.10 deals with the fact that the hearing at present complained of was originally scheduled to be heard at London North and had to be transferred to London South and there were indications, it was complained, that the Chairman was under pressure of time and wished to dispose of the matter quickly. That really is the substance of the complaints.There is a reference in paragraph 6.12 to a subsequent telephone call from an Assistant Secretary but that does not, to us, seem to be of any significance and has not been relied upon by Mr Roper.The Notice of Appeal raising those complaints of the conduct of the Chairman of the Tribunal he was, in accordance with the normal practice, invited to comment and wrote a letter on 18 December 1991, of which the appellant and her representative were supplied with a copy. He deals with the matters of complaint by saying that he does not have the papers in front of him and has to rely on recollection. He then deals with the date of dismissal, a point to which I shall return later, and goes on in regard to the general complaints of his conduct to say:
" I do not engage in any theatricals in the Tribunal. It is usually more that I can do to keep up with a note of the evidence. It would be fair to say that the expression on my face might indicate some irritation if time is being unnecessarily wasted, although I think that I am pretty tolerant with lay persons. My memory of this case is the Father came to contest this case on the basis the Originating Application was in time, despite the dates recorded in it (which I do not have in front of me). He was extremely irritated when told that we had to apply statutory law, not the common law, as he had done some research on the common law. He was unable to adapt to present a case on the point we had to decide and I had to elicit the story from the applicant.
I always invite the Members to ask questions after a witness has been cross-examined. The Members of this Tribunal are not persons who could be deflected from pursuing matters that they considered important. I refute any suggestion that either member was prevented from eliciting any matter. In any event, the underlying facts in this case were not in dispute."He then goes on to deal with the last paragraph concerning what information was given to the Appellant by a clerk, or other employee, of the Tribunal.We have considered those matters and we are satisfied there is nothing in the complaint about the conduct of the proceedings as alleged in paragraphs 6.1 to 6.5, 6.10 and 6.11 of the Notice of Appeal. However, the question of how Mr Roper's arguments about the effective date of termination were dealt with does seem to us to be in a slightly different state. As I have said, paragraphs 6.6 and 6.7 of the notice of appeal raise those questions and paragraph 6.6 reads:
".......... the lay representative [Mr Roper] was not allowed to argue the true facts that the application was not out of time."
That is developed in paragraph 6.7 and the point is taken, and this is the only way that we think that it can be put, that the original notice was not one by the Governors, or on behalf of the Governors, but by the Head-teacher in her personal capacity and she, under the contract of employment, had no authority to dismiss, only to suspend. The matter is therefore alleged by Mr Roper not to have reached decision until a letter written on behalf of the Governors on 18 May 1990, at which date, under the terms of the contract, the earliest point at which an effective notice could have terminated would have been 31 August. If that was right, then the Appellant's Originating Application, although still out of time, would, it is alleged, have presented a very different complexion to the exercise by the Tribunal of its discretion as to whether to extend time, especially since it is alleged by the Appellant that she had given notice of her intention to bring such an application to a Tribunal on 23 November.As to that matter, what the Chairman's letter of comment says is as follows:
"The father of the applicant acted as her representative at the hearing. He was told by me on several occasions that in determining the effective date of dismissal we had to apply the statutory test. The applicant herself accepted that she was dismissed with effect from 30 April 1990, and ceased to work thereafter. No reference was made to receiving half pay for May and June: this is a new point, but it would not have affected the issue. The claim was for discrimination and was a long way out of time. Her father wanted us to apply the common law, but I declined to allow him to pursue that point."
There are then three further paragraphs which I do not think I need to read, some of which come back to this point of time, and then there is the sentence in the fifth paragraph of the Chairman's comments which says:

"The only issue we had to decide was whether we should extend time."

When we look at the Reasons, that is indeed the only question that is addressed. The effective date of termination is treated as an accepted fact and no consideration is given to any arguments whether that was the correct date. Without in any way wishing to give any indication of what we think of the prospects of an argument as to the effective date of termination, we have come to the conclusion that this is a case where there should be the opportunity of a full hearing but, in our view, it should be confined to that point and to that point alone.We therefore direct that there should be a full hearing confined to grounds 6.6 and 6.7 of the Notice of Appeal and the question whether the Industrial Tribunal gave adequate consideration to the issues of the effective date of termination, and as to the effect which a decision on that point might have had on the exercise of their discretion to extend time.We think that there should be an amended Notice of Appeal confined to that point, but plainly it need not simply repeat the words of 6.6 and 6.7 as they stand at present. It should cover any matter properly within the permitted grounds as I have just expressed them, which have been recorded and the terms of which will be available.Given the nature of an appeal on that ground it is plain that there ought to be a direction for the Chairman's notes of evidence, and we so direct.