Hertfordshire County Council v Green [1993] UKEAT 184_91_1802

EAT
Hertfordshire County Council v Green
[1993] UKEAT 184_91_1802 · 1993-02-18
MR JUSTICE WOOD (PRESIDENT): An Industrial Tribunal sitting at London (South) on the 29th January 1991 decided that it was just and equitable to extend the Applicant, Mrs Green's time for presenting proceedings under the Sex Discrimination Act 1975 against her employers Hertfordshire County Council. This was a majority decision and the County Council now appeal against that decision.The Applicant was employed as a lecturer in craft subjects at Cassio College in Watford. Her employment began in September 1987 and it came to an end on the 31st August 1990 as a result of a letter of resignation of hers dated 25th June 1990. That period of notice was slightly shorter than the contractual period but it was accepted by the College. The Principal at the College at the time was a Mr Storrie.The Originating Application was received by the Central Office of Industrial Tribunals (COIT) on the 18th September 1990 and put succinctly, Mrs Green was complaining first of unfair constructive dismissal, and then of direct sex discrimination and also of sexual harassment. It will be seen that those allegations divide themselves, therefore, into the allegation under the Employment Protection (Consolidation) Act 1978 and those under the Sex Discrimination Act 1975. There is no issue but that her claims under the 1978 Act are in time, and they will in due course, be heard. The issue is whether her time for presentation of the claims under the 1975 Act should be extended.The last complaint, as found by the Industrial Tribunal, of which she complained, was the 15th December 1989 and therefore 3 months from that last act of complaint under the 1975 Act would have been 15th March 1990; as we have said, the Originating Application was only received on the 18th September 1990.The law, for our present purposes, is quite simple. Before turning to the Sections themselves it is right to explain that one of the issues before the Industrial Tribunal was that there had been what is called "a continuing act" of discrimination and therefore, that time simply ran on. That was rejected and there is no appeal against that rejection. We are therefore dealing with Section 76 of the Sex Discrimination Act 1975. Subsection (1) of Section 76 reads:
"An industrial tribunal shall not consider a complaint under section 63 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done."
and then in subsection (5) the wording reads:
"A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."
The wording of the 1975 Act, and indeed the Race Relations Act, is to be compared with the wording in the 1978 Act with which the Tribunal are so familiar, which in Section 67(2) declares:
"an industrial tribunal shall not consider a complaint under this section unless it is present to the tribunal before the end of the period of three months beginning with the effective date of termination or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months."
There is that difference in the wording of the two Sections. However, it is abundantly clear that the primary obligation of a complainant in these cases in the employment field is to bring complaints promptly. I think that is simply to state the obvious in terms of industrial relations or personal relations, that the sooner complaints are made the better from everyones point of view. But the provisions of Section 76(5) seem to us to give a broad discretion to an industrial tribunal to decide, whether in all the circumstances, it is just and equitable to extend time. The Wednesbury rules would apply to that broad discretion but it can not just be a purely sympathetic approach, there must be a reasoned, and indeed a reasonable explanation or excuse, which once it is identified it can be examined to see whether it is just and equitable to extend the time. However, again it is clear that the whole period of the delay must be examined and analysed. In the present case the period is divided, quite simply, into the three months during which the delay would not have been relevant, and the period from the 15th March until 18th September 1990.The evidence before the Industrial Tribunal consisted of the oral evidence of Mrs Green and a bundle of documents which we have seen, and which is now before us. At the centre of the issue in connection with which complaint is made of constructive dismissal, and indeed, the present considerations, is the grievance procedure in dealing with the County Council. That procedure divides itself into two parts. There is an informal procedure when a teacher who has a grievance may request an interview with his Head of Department, and if that is not satisfactory, then an interview with the Principal of the College. Then there is the formal procedure, which comes into being if the informal procedure has failed or in cases where it is inappropriate; the teacher submits a written notice of grievance to the Chairman of the Governing Body, and if that is invoked then in due course there may become a meeting with the Governing Body, or possibly with a sub-committee appointed for that purpose. That is the broad background or broad structure of the grievance procedures.By a letter of 6th October 1989, Mrs Green wrote instituting the grievance procedure, she wanted the formal procedure. However, the reason for wanting those proceedings dates back in time. It is apparent, from a letter of the 1st September 1989 from the Luton Law Centre, that in the July 1989 certain changes had taken place which Mrs Green regarded as a fundamental breach of her terms and conditions of employment or appointment. She had consulted the Law Centre, obviously in August or in the early part of September 1989. The Law Centre, as one would imagine, is staffed by lawyers and others, and is there to give legal advice and to represent people; indeed before the Industrial Tribunal and before us today, Mr Fraser from the Law Centre has been representing Mrs Green. In that letter of 1st September 1989 from the Law Centre, the issues of the memorandum of July were raised, it was indicated that a meeting was sought where she would be represented from this Law Centre but written reasons were needed for various decisions and also it contained an allegation that she said:

"she has been subjected to victimisation, harassment and sex discrimination."

Then it indicates that any further such action could be considered in an issue of constructive dismissal.There was a second letter of the 7th September and then a reply from the College on the 15th September 1989 denying the victimisation, harassment or sex discrimination but looking forward to a meeting when she could be accompanied.That meeting took place on the 15th December 1989 and it was at that juncture that the Tribunal found that the last act under the 1975 Act took place. That was a meeting between the Principal, Mr Storrie; Mr Laycock who was a solicitor in the Legal Department; Mrs Green and Mr Fraser from the Luton Law Centre. The question there arose of how the grievance should be taken forward. Mrs Green was arguing, through Mr Fraser, that Mr Storrie, the Principal should take no part because she had made a number of allegations of sexual harassment or misbehaviour in 1987 and 1988 and Mr Storrie, apparently, had levelled allegations of breaches of discipline against her. The discussion continued and those representing the County Council refused to implement the formal grievance procedure. The issue was therefore clearly defined at that stage, as the Industrial Tribunal found.After that meeting a further letter of 23rd December 1989 was written by Luton Law Centre and that indicates quite clearly the basis upon which the Tribunal found that the 15th December was the cardinal date. The last three paragraphs of that letter read as follows:
"You remarked during the course of that brief meeting on the 15th December that the Grievance Procedure would not proceed to the next stage even though it was explained to you many times why we thought it contrary to the rule against bias that Mr Storrie should be seen to be `a judge in his own case'.
We must insist that the Grievance Proceedings progress without undue delay to the next stage which we are informed is the Governing Body.We await your confirmation of the progress of the grievance procedure within 14 days in order to prevent legal proceedings at this early stage."It is also confirmed in a further letter of 12th January 1990 which indicates again the decision in 1989 was the decisive matter.Thus, a number of things are clear, and indeed, are referred to in the decision itself. From at least, September 1989 and possibly before, Mrs Green had been in the hands of lawyers and in a position to receive legal advice. She knew of the three months' time limit as she told the Tribunal, and there was also a threat of proceedings in that letter to which we have just referred so that the decision had been made, had she wanted to, to bring proceedings from that period. She also told the Tribunal in her evidence that her Trade Union had earlier suggested that she should go to an industrial tribunal. The Trade Union were taking an interest in this matter and there was a letter of the 12th June 1990 from the Regional Official, Mr Brass writing to the County Council. It at first seemed that he was acting for the Applicant, Mrs Green at that stage. But, on a careful reading of the letter, that is not so because Mr Brass is really interested in the form of the grievance procedure and indicating that he, on behalf of the Trade Union, was taking the view that it was not really very satisfactory and needed a careful rethink, and indeed he was being fairly blunt about that. But it is also apparent from the earlier passages of that letter, the first 10 or 12 lines, that he had had a discussion with Mr Laycock, at the County Council, several months before the 12th June 1990, that they had reached some sort of an accommodation as to the possible way in which Mrs Green's case could be pushed forward. He had conveyed the view of the Association to Mrs Green and he then adds this:
"However, notwithstanding the position that I put to her arising from our discussion, it does seem that this was not acceptable to her and/or her advisors. Whilst the Association is having no part in pursuing/advising Ms Green on her actual concerns within the procedures, it is quite proper for the Association to be concerned as to the fair and reasonable application . . ."
So that was the situation in the June.The summer of 1990 is important because it is at that stage that Mrs Green writes her letter of resignation; she also spoke to the Industrial Tribunal in her evidence about it, what she told the Tribunal is this:
"I saw the job as my career direction - in adult education.
I decided to leave in June because I could see County determined that my grievance would not be resolved - and stress and embarrassment.I had found another job just before letter of 25.6.90.I needed to find another job before leaving because easier to go from one job to another than have a gap of unemployment."She therefore wrote her letter of the 25th June and its contents are important. She said:

"Dear Mr Storrie

I have been offered an appointment which I have been asked to take up on 1st September 1990. Therefore, I wish to request that I be released from my contract with Hertfordshire on August 31st 1990.I am sure you will appreciate the urgency of the request and therefore I would be grateful if I could have your response by return."and indeed she did have that response by return.The term ended on the 15th July, so she was on holiday from 15th July onwards before taking up her new appointment on the 1st September 1990.Those basically are the background facts and the information that was before the Tribunal. The majority express their reasons in paragraph 12 of the decision, they say this:
"In the view of the majority it is just and equitable for a tribunal to consider the applicant's complaints under the 1975 Act because it was reasonable for the applicant to have delayed commencing proceedings until after she had terminated her employment with the respondent and had started her new job. The applicant's case was being pursued through the internal procedure throughout the period in question. The applicant's worry and fear of victimisation by the respondent was genuine and reasonably held, given the way in which the applicant claimed her complaints had been dealt with in the past and the respondent's perceived unwillingness to operate the Grievance Procedure appropriately. Furthermore, bearing in mind the close-knit nature of employment in Further Education, it was a reasonably held belief that commencing tribunal proceedings within the time limit would have jeopardised the applicant's chances of finding alternative employment. In all the circumstances the 9 month delay was justified."
As Mr McBride pointed out there seem there to be four reasons for the exercise of the discretion.The first reason is, that it was reasonable to delay until after she had terminated her employment and started her new job. If that be so, the delay is not explained after the letter of the 25th June 1990 and there is from the 25th June till the 18th September, virtually another three months; that period is unexplained on the basis of that reasoning.The second reason is that the Applicant's case was being pursued through the internal procedure throughout. There is no evidence of that whatsoever, indeed, the evidence as we have already indicated, is to the contrary. It was clearly not being pursued through the internal procedure. There had been a refusal by the County Council and it is precisely that refusal which was the source of complaint, and the last source of complaint, from the Applicant. It seems to us therefore, that Mr McBride is making a valid point that there was no evidence to support that finding.Thirdly, there is the fear of victimisation and that seems to us to be looking at the merits of the case, because the victimisation is that of the refusal to exercise the formal grievance procedure. We can see no other indication of fear of victimisation. If there was fear that something would happen if she brought proceedings, there is no evidence of it but it seems to us that that does not really explain the delay because if she had a good case she should bring the proceedings and then any question of victimisation or malpractice thereafter would react very strongly against any respondent behaving in that way.The fourth reason was the close-knit nature of employment for further education and that it was reasonable that she should not have brought proceedings because it might jeopardise her chances of alternative employment. That of course again, like the first reason, merely dates up to the letter of the 25th June and not thereafter and it seems to us therefore, that those are not reasoned explanations of the relevant delay after March.Mr McBride goes further, he submits that when one looks at the Wednesbury principles that the majority here failed to take into account that she had had legal advice throughout and that she was aware of her position in law and of the various time limits. They had also failed to give expression to other reasons which she had put forward, namely that her legal advisor was out of the Country for part of the period in the summer, she herself was on 2 1 / 2 weeks' holiday, that she needed time to take stock of the situation after leaving the College, whereas in fact, of course, preparation of this matter must have been available right from the September 1989, or shortly thereafter. Then that it took time to consider what to put in the form of the original application.None of those matters are dealt with and in the light of the history it seems to us that Mr McBride's comment that they do not seem to be valid or reasonable explanations is a sound one. It follows therefore, that in our judgment, the majority erred either in the fact that there was no evidence to support some of their reasoning or under the Wednesbury rules in the criticisms which had been made by Mr McBride.The issue therefore is this, whether we today should exercise our discretion and deal with the matter, or whether it is possible for us to take the view that some other Tribunal might take a different view. That is always a difficult decision. We ourselves have no doubt what our view would be. On the other hand it is just fair to Mrs Green we think, that another Tribunal should have an opportunity to look at it, although otherwise it would really be substituting our own view which is very clear, to the situation.Therefore, what we shall do here is to allow the appeal, but to remit the matter to be heard before a different Tribunal.