Chambers v Jackson & Anor [1995] UKEAT 247_95_2707

EAT
Chambers v Jackson & Anor
[1995] UKEAT 247_95_2707 · 1995-07-27

JUDGE N BUTTER QC:

Section 76(1) of the Sex Discrimination Act 1978 provides that 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. But, under Subsection 5, a discretion is conferred on the Tribunal. A Court or Tribunal may nevertheless consider any 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 provisions of that section were considered in the case of Hutchinson v Westward Television Limited [1977] ICR 279. Mr Justice Phillips emphasised at page 282 that the words are wide and dealt specifically, at letters E to F, with the burden imposed on an Appellant who sought to ask an appellate tribunal to decide that the wide discretion conferred upon the Industrial Tribunal had been exercised wrongly.In the present case, Mrs Jackson made a complaint and issued an application against Birmingham City Council and against Mr Earl Chambers. The application was issued on 14 April 1994. She was employed as a secretary in the Birmingham City Council's Environmental Services Department and on or about 21 October 1993 she made a complaint to the contracts support officer, Mr James, in relation to alleged sexual harassment by Mr Chambers. According to her, the conduct in question had taken place from May until on or about 1 October 1993.Mr James recommended that Mr Chambers be informed of the complaint and we understand that that was done. He further recommended there should be a full investigation of the complaint as quickly as possible in accordance with the City's guidelines.Unhappily, for reasons which are not plain, that investigation did not take place promptly. Indeed, it appears from the decision of the Tribunal that the investigation as such only started after the Applicant commenced the proceedings in the Industrial Tribunal.It is plain that the Applicant was out of time within the meaning of Section 76(1) but the Chairman of the Tribunal, sitting at Birmingham on 20 January 1995, held that it would be just and equitable for the Tribunal to consider the Applicant's complaint in so far as it is against Mr Earl Chambers.It is against that decision of the Chairman that Mr Chambers appeals to this Tribunal today. In the reasons which the Chairman gave, he said at paragraph 5:
"5. I am satisfied that the principle (sic) reason for the delay in making this application, so far as it relates to the alleged actions of Mr Earl Chambers, is directly related to the delay of the first respondent [Birmingham City] in dealing with the complaints which were timeously made by Mrs Jackson, in accordance with recognised procedures, on the 21 October 1993. Mrs Jackson was patiently waiting for her complaints to be dealt with by the first respondents. There was, for one reason or another (and they may or may not be good reasons) delay in carrying out that investigation and it only started after the applicant commenced these proceedings before the Industrial Tribunal."
In paragraph 7 the Chairman says:
"7. I consider that Mrs Jackson had good reasons for delaying taking action by issuing proceedings in the Industrial Tribunal against Mr Earl Chambers. .... . "
He goes on to deal with the "normal domestic procedures" as he called it. He went on to say, correctly, that "There does of course come a time when the applicant should take other or further [action] if her complaint has not been dealt with. She did so on the 14 April".The Chairman goes on to say:
".... and I consider that it was reasonable for her not to have taken action before that date, in all the circumstances. [He goes on to indicate his reasons for that quite shortly.] Her primary complaint is against her employer. It would not be sensible or appropriate for her to have taken any separate action against Mr Earl Chambers. It might even have been regarded as being premature for her to have taken action against the City Council before the date when she did. I have not been told that Mr Chambers is in any way prejudiced by the delay. It seems to me, in any event, desirable that he should not, as it seems to me inevitable, be called as a witness at the hearing of the application, but that he should be a party and therefore represented and entitled through his representative to the right of cross-examination at the hearing before the tribunal. Taking all these matters into account I consider that it is just and equitable to allow this application to proceed against Mr Earl Chambers, notwithstanding that it is outside the requisite 3 month period of Section 76(1) of the 1975 Act."
At this appeal today, Counsel on behalf of Mr Chambers, says that the Chairman has taken matters into account which he should not have done, and that his conclusion is vitiated by a number of factors.One of the points made concerns the question of prejudice. In a sense any delay is likely to involve some prejudice. This was a matter specifically referred to by the Chairman in paragraph 7, and it is a fair inference that he had not been told of any specific or major reason why there would be prejudice on the part of Mr Chambers if there were delay. Certainly, he considered the point, albeit shortly.In relation to the following sentence when he says "it seems to me inevitable, (that Mr Chambers would) be called as a witness", with that particular observation, the members of this Tribunal take a different view. It seems to us unlikely that Mr Chambers would be called as a witness if the case were proceeding simply as between the Applicant and the First Respondents. Nevertheless, we do not think it fair to say that this observation vitiates the reasoning of the learned Chairman. Certainly, there are circumstances, in which it is possible (though we would have thought not inevitable) that Mr Chambers might be called, having regard to the fact that the First Respondents would wish, it seems, to advance the statutory defence, that is to say they took appropriate precautions.Clearly, there are here advantages of the internal procedure which Mrs Jackson was pursuing with Birmingham City Council. Undoubtedly, there was significant delay in her issuing the application in the Industrial Tribunal, but the Chairman was, in our view, entitled to take the view that it was not inordinate today in the context of this particular case.As I indicated at an earlier stage, the Chairman had a wide discretion. It is only rare for this Tribunal to interfere with the exercise of that particular discretion under this particular Act.Taking all matters into account, we are not persuaded that it would be right to interfere with the discretion exercised by the Chairman and we have unanimously come to the conclusion that the appeal fails and must be dismissed.