Hawkins v Ball & Anor [1995] UKEAT 1289_95_1512

EAT
Hawkins v Ball & Anor
[1995] UKEAT 1289_95_1512 · 1995-12-15
MR JUSTICE KEENE : This appeal is against a decision of an Industrial Tribunal on a preliminary point. It arises in the following way: the Respondent, Miss Michelle Ball, was employed by Barclays Bank Plc at its Penge Branch. She had worked there since December 1993, having first joined the Bank in 1988. Her manager at that Branch was the present Appellant, Mr Peter Hawkins. On 1 June 1995, Miss Ball presented an originating application to the Industrial Tribunal alleging sexual discrimination and victimization within the terms of the Sex Discrimination Act 1975. That Act imposes time-limits on such complaints. By section 76(1) it provides:
"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."
However, section 76(5) provides:
"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."
There is, also, what amounts to a definition provision in section 76(6).

(b) of that subsection it is provided that:

"any act extending over a period shall be treated as done at the end of that period" .For an act to come within the three-month period prior to the originating application in this case, it would have had to have taken place after 28 February 1995. The facts set out by the Industrial Tribunal in its reasons were facts found by them simply for the purpose of deciding as a preliminary point whether it had jurisdiction to consider Miss Ball's complaint. Those facts were as follows and we quote from paragraph 5 of the decision:
"(a) Between December 1993 and March 1994 the Applicant was subjected to offensive sexual remarks by the second Respondent. A colleague complained to the second Respondent's superior. Following investigation under the grievance procedure her complaint was upheld on this issue on 11 November 1994. (b) Between March and October 1994 the Applicant alleged hostile treatment by the second Respondent including requiring her to produce evidence of doctors appointments and making it difficult for her to leave in time. She was moved to the Beckenham Branch doing less demanding work and was `cold shouldered' by the staff. (c) July 1994 she was marked down in her annual assessment by the second Respondent which she alleges was because she had complained of harassment. (d) January 16 1995 she overheard the second Respondent referring to her as a `slapper'. She felt her treatment during the investigation of her complaint was less favourable because she had made a previous complaint. (e) Between January 18-20 1995 she consulted a solicitor. She contends he said the incident of the `slapper' was nothing and sexual harassment was out of time. He suggested she could claim constructive dismissal but this would mean leaving and she did not have another job. (f) She said she was ill, not sleeping, seeing a doctor every two weeks and was depressed. (g) In March she was allegedly transferred to Lewisham which she considered unacceptable. (h) In May 1995 a friend of her father encouraged her to bring a sexual harassment claim."
The Tribunal, after considering those facts and the submissions for the parties, concluded that it would be just and equitable to extend time under section 76(5). They said in support of that conclusion that they were influenced by the Applicant's evidence that she had visited a solicitor in January 1995 and received incorrect advice and they referred to her evidence that she had been told that her claim relating to the sexual harassment in March 1994 was out of time and that the `slapper' incident in January 1995 was nothing. They also indicated that they did not consider that allowing the claim to proceed would cause undue pressures to the Respondents. They also added:
"We do not consider the events after February 28 which were in time were merely consequences of a discriminatory act."
That decision was entered on 26 October 1995. In the reasons the Tribunal also fixed the dates for the substantive hearing of the application setting them as 4 and 5 January 1996. On 6 December 1995 this Appellant filed a notice of appeal on the preliminary point decision. That notice was filed almost at the limit of time for such an appeal and left only about four weeks before the substantive hearing of the originating application was due to take place. No mention was made in that notice of appeal of any application for a direction that the Chairman's notes of evidence be produced. An application was subsequently made for such a direction. That was done by a letter dated 14 December 1995, that is to say, yesterday, faxed to the Employment Appeal Tribunal. This appeal hearing had, by then, already been fixed for today, 15 December.The application for such a direction as to Chairman's notes was made before us at the outset of today's proceedings. It was resisted by the first Respondent, Miss Ball. We dismissed the application and went on to hear the appeal against the Tribunal's preliminary decision. We give first our reasons for dismissing the application for the Chairman's notes of evidence.On behalf of the Appellant it was argued that the notice of appeal challenged the Tribunal's decision on grounds of perversity and that, consequently, the Chairman's notes were necessary. Mr Horan relied on the Court of Appeal decision in Piggott Brothers & Co Ltd v Jackson and Others [1992] ICR 85 and, in particular, on a passage where Lord Donaldson, Master of the Rolls, said at page 90G
"Following receipt of that notice of appeal, the appeal tribunal made a direction that only the notes of evidence of the expert witnesses be transcribed for the purposes of the appeal. Let me say at once that it is very important that industrial tribunals should not be burdened with transcribing notes of evidence which are irrelevant to any appeal on a question of law. However, I fail to understand how if an appeal is based upon, or includes, an allegation that the industrial tribunal's decision was perverse, it is possible to contemplate allowing the appeal without having access to all the evidence bearing on the alleged perversity. In the context of this case, this had to include the evidence of the employees themselves, unless it was accepted that they had acted reasonably which would probably have been fatal to the appeal."
Mr Horan also refers to the case of Martin v MBS Fastenings (Glynwed) Distribution Ltd [1983] IRLR 198 .The notice of appeal in the present case takes essentially four points. First, it is said that the Tribunal erred in law because the last action by the Appellant complained of by the first Respondent, that is to say, the remark said to have been made on 16 January 1995 is incapable of amounting to an act of discrimination causing her detriment.Pausing there, that ground cannot require the Chairman's notes of evidence. The ground assumes, for the purposes of argument, that the alleged facts, as set out in the Tribunal's reasons, are true and then advances a proposition of law on the basis of those facts.Secondly, it is argued that in the light of ground 1, the advice received by the Respondent from her legal advisers in January 1995 was not incorrect and that, therefore, the Tribunal's decision, which relied on the advice being incorrect, was perverse. That point seems to derive directly from the point of law raised in ground 1. It, on the face of it, does not require the production of notes of evidence.Thirdly, it is alleged that if the legal advice was incorrect, the Respondent has a course of action against that adviser and that any reasonable Tribunal would, therefore, have found that it was not just and equitable to extend time and allow the claim to proceed. That argument may be right or it may be wrong but, again, it does not seem that the notes of evidence are needed to advance it.Finally, the notice of appeal advances an argument that the last action for which the Appellant might be held liable having occurred in October 1994, the Tribunal should have considered the delay arising and the reasons for the delay between October 1994 and June 1995. It is said that on the facts found by the Tribunal in those circumstances, any reasonable Tribunal would have concluded that it was not just and equitable to allow the claim to proceed. That ground also appears to relate back to the argument about whether the January 1995 incident was actionable discrimination or whether it had to be disregarded by the Tribunal, leaving October 1994 as the date of the latest alleged act of discrimination. Consequently, it, too, seems to depend on the argument of law being raised on the first ground without the need for any notes of evidence.The EAT practice direction of 17 February 1981 makes it clear that notes of evidence would only be ordered where they are necessary for the purpose of the appeal. We do not accept that such notes become necessary automatically upon an allegation of perversity being raised. Nor do we read the decision in Piggott Brothers & Co Ltd as suggesting anything to the contrary. In that case, the Tribunal below had found that the dismissals were unfair in all the circumstances. The appeal against that decision alleged that that finding was perverse. The Court of Appeal, perhaps not surprisingly, took the view that that ground of appeal could only be considered if all the Chairman's notes were available. The Court of Appeal did so because that argument required a consideration of all the evidence so as to assess the fairness or otherwise of the dismissal. That is not this case. It is important to recognize, in our view, that allegations of perversity on appeal may take different forms and we do not read Lord Donaldson's comments as intending to apply to all cases where such an allegation is made, whatever may be the basis for it. In the present case, the allegation of perversity rests upon a specific and much more limited platform as we have already indicated. Nor is the Appellant assisted by Martin v MBS Fastenings (Glynwed) Distribution Ltd . The passage from that decision which is relied upon by the Appellant also says this:
"If it is intended to appeal upon the ground that there was not evidence to support the Tribunal's findings, the appellant must take the necessary steps to obtain a note of the evidence."
That is essentially dealing with a particular kind of perversity argument, namely, one where it is said, in effect, that there was no evidence for a particular finding or findings reached by the Tribunal below. In those circumstances, it may often be the case that it will be necessary to produce the Chairman's notes. An allegation that there was no evidence for a particular finding will often necessitate looking at all the evidence and that can only be done by obtaining the Chairman's notes but, again, that is not this case.It is important to bear in mind what was said in Webb v Anglian Water Authority [1981] ICR at 811 and, in particular, at page 814B:
"Before any such order is made, the party seeking the notes should specify the exact finding which is attacked or the finding which he says ought to have been made. After all, the parties have been present at the industrial tribunal, they know the evidence which was given to the industrial tribunal and, before raising any allegations as to the findings of fact, they ought to know which findings they are challenging. If a party cannot, or does not, narrow down in this way the allegations of fact which are to be challenged, in general we think the notes ought to be refused."
We are firmly of the view that general allegations of perversity are not enough. Such allegations will frequently merely be a pretext for a fishing expedition.In the course of argument, the point was taken by the Respondent that the Appellant before the Industrial Tribunal had not sought to argue that the legal advice received by Miss Ball was correct and that, therefore, this would be a new point not raised below. The Tribunal below does, indeed, seem to have proceeded on the footing that there was no issue as to the advice being erroneous, all parties apparently presenting their arguments on the footing that it was. In the event, we do not need to determine this argument about whether such a new point could properly be raised on appeal in the present circumstances because we have formed the clear view that even if it can be raised, it provides no basis for directing the production of the Chairman's notes of evidence.For the reasons we have indicated in dealing with the grounds of appeal, we were not satisfied that it was necessary for such notes to be produced in order that this appeal could be properly conducted and, in those circumstances, we dismissed that application.We turn, therefore, to the substantive appeal against the Tribunal's decision on the preliminary point. The grounds for that appeal became significantly narrower during the course of the hearing than they had been presented in the notice of appeal. Mr Horan accepted that if it was going to be contended on behalf of Miss Ball at the full hearing, that the conditions set out in de Souza v Automobile Association [1986] ICR 514 for the remark to constitute detriment had, in fact, been satisfied, then he could not advance his argument as to an error of law, what we have described as the first ground of appeal. Those conditions set out in de Souza are that the appellant had intended that she should overhear the alleged insult or, alternatively, that he knew or ought reasonably to have anticipated that the alleged insult would be passed on to her or that she would hear of it in another way and, further, that she or a reasonable woman in a similar situation would or might have been disadvantaged by the making of such a comment in the circumstances in which she found herself.Miss Heal, on behalf of Miss Ball, made it clear that the proposed evidence from her client for the full hearing would indeed meet those conditions. In those circumstances, Mr Horan abandoned his first ground of appeal because he accepted that all that is needed at this stage when determining the preliminary point is prima facie evidence which is capable legally of establishing an act of sex discrimination taking place in January 1995.Furthermore, a ground which he sought to advance in his skeleton but not in the notice of appeal, namely, that the Tribunal failed to take account of the delay between October 1994 and January 1995, was not one raised below before the Industrial Tribunal. We say that because the Tribunal Reasons do not suggest that it was ever raised. Miss Heal tells us that it was not and Mr Horan has no instructions to the contrary. In the circumstances, we refuse the appellant leave to amend his notice of appeal by adding that fresh ground because it would not be right to allow an amendment to raise a point not argued below. Had it been, then evidence specifically directed to it might have been called below, and if the amendment were now to be allowed, the matter would have to go back to the Tribunal for evidence to be called on this aspect. In consequence we refuse leave to amend the notice of appeal. We should say that that notice of appeal was not drafted by Mr Horan.In the light of his concession on ground 1, Mr Horan took the position that the only remaining point which he could argue in this appeal was that which related to the Tribunal below taking into account the fact that Miss Ball had received erroneous legal advice in January 1995. He contends, as he has to, that that was an irrelevant consideration which the Tribunal should not have taken into account. In support thereof he has referred us to a number of cases dealing with time-limits in unfair dismissal proceedings: Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53 , Wall's Meat Co Ltd v Khan [1979] ICR 52 and Riley v Tesco Stores Ltd [1980] ICR 323 .We remind ourselves that we are not the Tribunal at first instance deciding whether or not it is just and equitable to allow the claim to go forward out of time. Our jurisdiction is limited. The Appellant today can only succeed if he can persuade us that that factor was an irrelevant one to the exercise of discretion by the Tribunal or if he can persuade us that it was not a permissible option for them to reach the conclusion which they did.We do not find the cases cited by the Appellant of great assistance in determining this point. It is important to remember that the test in unfair dismissal cases is different from that which applied in the present case, which is a case under the Sex Discrimination Act. The basis for extending time for complaints under the Sex Discrimination Act is wider than that under the Employment Protection (Consolidation) Act 1978, section 67(2). In the latter, the Tribunal has to be satisfied that it was not reasonably practicable for the complaint to be presented before the end of the three-month period. Under the Sex Discrimination Act 1975, section 76(5) set out earlier, the Tribunal may consider an out-of-time complaint if, in all the circumstances, it considers it just and equitable so to do. We regard that as presenting the Tribunal with a broader discretion than exists in unfair dismissal cases.It is clear that cases such Dedman and Walls Meat Co Ltd v Khan [1979] ICR 52 were both cases dealing with the "reasonably practicable" test. In the case of Dedman the Court there was having to consider whether it was not practicable to present the complaint within four weeks, that being the time period under the Industrial Tribunals (Industrial Relations) Regulations of 1972. The Walls Meat decision was also dealing with the test of reasonable practicability. It is for this reason, the difference between the two statutory tests, that it was indicated in Hutchison v Westward Television Ltd [1977] ICR 279 that only limited help is to be obtained in sex discrimination cases or race discrimination cases from such decisions dealing with complaints of unfair dismissal. We are bound to say that in the same way we do not find the authority cited by Miss Heal on the Limitation Act 1980 gives us much guidance. She sought to rely in particular upon the decision in Hartley v Birmingham City District Council [1992] 2 All ER 213 . That was a case which was dealing with whether it would be "equitable" to allow an action to proceed even though it was statute barred. On the face of it, that would appear to have some parallel with the "just and equitable" test under the Sex Discrimination Act. However, it is to be noted that there is a specific provision in section 33(1)(f) of the Limitation Act 1980 which makes it clear that Parliament's intention was that the seeking and obtaining of legal advice was to be seen as relevant to the decision about whether allowing the action to proceed out of time would be equitable or not. Since Parliament regarded that as requiring an express reference in section 33, it does not seem to us that decisions made on the interpretation of the word "equitable" in that legislation are of a great deal of assistance when we are dealing with the Sex Discrimination Act of 1975.We, therefore, return to the wording of section 76(5) of the Sex Discrimination Act itself. We cannot say that the obtaining of incorrect legal advice is irrelevant to a decision on what is just and equitable in all the circumstances. The obtaining of incorrect legal advice may well constitute a reason for a delay which has occurred and in those circumstances it is potentially relevant. We can see no reason to limit the width of the broad discretion given to an industrial tribunal by the statute in that particular respect. For the same reason, while we may not have come ourselves to the same exercise of discretion as the Tribunal below on this particular matter, we find it impossible to say that no reasonable Tribunal properly directing itself could find that it was just and equitable to extend time in these circumstances.For that reason we do not categorize the decision reached by the Tribunal below in this case as being perverse and it therefore follows that this appeal must be dismissed.