Fleming v Lincolnshire Police [1996] UKEAT 1065_96_0810

EAT
Fleming v Lincolnshire Police
[1996] UKEAT 1065_96_0810 · 1996-10-08
MR JUSTICE MORISON (PRESIDENT): This is an interlocutory appeal. It concerns the way that three of the four applications which Mrs Fleming has presented to an Industrial Tribunal against her employer, the Chief Constable of Lincolnshire Police, have been, and should in the future be managed.The ruling made by the Industrial Tribunal, against which an appeal by the Chief Constable has been brought, relates to the ambit of the evidence which Mrs Fleming should be allowed to adduce having regard to the allegations she made in her applications, and the particulars she has supplied, and to the question of an adjournment. That ruling was made last Thursday; the case proceeded in the Industrial Tribunal that day and the next day, Friday. There was no sitting yesterday, Monday, and the appeal was argued before us today, Tuesday. It is the present intention of the Industrial Tribunal that, assuming the appeal is dismissed, the hearing should be resumed tomorrow and Thursday and should then be adjourned for some considerable period of time to enable further convenient dates to be fixed.The claims which Mrs Fleming makes relate to the manner in which she has been treated as a service police officer in the Lincolnshire Constabulary. It is her case that she has been the victim of persistent discrimination based on sex. She says that she has met with sex-based hostility, and, specifically, that her requests to utilise the grievance procedure have, since August 1995, been denied to her. She has identified a number of specific occasions when she says she made complaints which should then have been investigated. In order to obtain independent evidence in support of her contention that she has been the victim of persistent discrimination from a number of her colleagues, she attempted to secure, covertly, a tape recording of conversations. That attempt was discovered and led the instigation against her of complaints under the statutory disciplinary scheme which applies to serving police officers. The first of the charges against her is that by using or attempting to use the voice activated tape recorder she was guilty of oppressive behaviour towards other officers. If found guilty of this and other offences with which she has been charged it would be open to the Chief Constable of another force who is to hear the matter to recommend that she be dismissed from the police service. It is her case that she was the victim of oppressive behaviour, and was denied the support which she deserved. It will be apparent, therefore, that there is a considerable overlap between the proceedings which she has brought against her police authority and the disciplinary proceedings which they have instigated against her, and which are due to take place in December, 1996.Mrs Fleming's first application to the Industrial Tribunal was signed by her on 19 December 1995. In it she alleges that her employers were guilty of direct sex discrimination, and she refers to her treatment between 2 May 1994 and 20 September 1995. By her second complaint, which was signed by her on the same date, she alleged that her employers were guilty of victimisation by instituting disciplinary proceedings against her, and by seeking to intimidate those officers who were prepared to support her by causing them to be formally investigated.In January 1996, as was her right, Mrs Fleming served on her employers a questionnaire under the Sex Discrimination Act 1975 , as amended, requiring them to answer certain questions. Under paragraph 2 of the form she identified her complaint in this way:
"On and after 20 September 1995 you discriminated against me by treating me less favourably than my male colleagues when you responded to a written complaint in a report dated 20 September 1995.
You also victimised me by making arrangement and intimidating colleagues in circumstances which have caused me to be ostracised and unsupported in my complaint against you."Having requested and obtained further and better particulars of her complaints, the police filed a notice of appearance, identifying what they thought to be the issues raised in her applications.On 9 February 1996, Mrs Fleming presented her third complaint alleging a further act of victimisation: this complaint is that her grievances which were eventually admitted into the grievance procedure have not progressed beyond the second stage, because she refused to agree to a stay of her proceedings.On 25 March 1996, the matter came before an Industrial Tribunal held at Lincoln which, sensibly, ordered consolidation of the three applications and an order that Mrs Fleming's allegations of sexual discrimination be listed in a document with numbered paragraphs, with liberty to respondents to file a further notice of appearance if so advised. An amended application was presented to the Industrial Tribunal which included within it this statement:
"For the avoidance of doubt, the issue which arises in the present application is not whether the complaints which the Applicant made in the report of 15 November 1995 or otherwise to her superiors (as referred to in that report) are themselves well-founded but:
i) whether the Respondent and officers for whom he is responsible failed and continued to fail to take up and investigate those complaints and whether such allegations would have been taken more seriously had they been made by a male inspector andii) whether such treatment of the Applicant was by way of victimisation because her complaints raised the question whether a male officer would have been treated in the same way."The police authority filed a further Notice of Appearance dealing with the allegations as they perceived them to be.On 24 May 1996, the Industrial Tribunal made a number of orders and gave directions.A ten-day hearing was arranged to commence on Monday 30 September. Certain interlocutory orders were made at the same time, including exchange of witness statements 6 weeks before the hearing. That order was complied with and the Applicant's own substantial statement was served within the period.There was then a discovery application in relation to the disciplinary file, which was successful before the Industrial Tribunal. Their order was reversed on appeal. This Court did not rule out the possibility that the file might become relevant. Following the judgment of this Court on 15 July, Mrs Fleming presented her fourth complaint: alleging that the way the disciplinary proceedings were being progressed against her constituted victimisation. She identified a number of 'protected acts'. On 21 August, after the Applicant's witness statement had been served, the Industrial Tribunal refused to consolidate the fourth application, and stayed all further proceedings in relation to it. The respondents indicated that they would be taking objection to some of the matters contained in the Applicant's witness statement, particularly those passages which dealt with the disciplinary proceedings against her.Late on the afternoon of the last working day [Friday 17 September] before the hearing, the Respondents served on the Applicant's Counsel a note of an argument which identified those passages in the Applicant's evidence to which objection was being taken. That objection led to two days of arguments before the IT. But on the second day, sensibly, an agreement was reached between the two leading Counsel which was endorsed by the IT which limited the matters then in dispute on the interlocutory points. As is often the case, a detailed comparison between what the Applicant was saying in her formal applications and in her witness statement showed that she was now saying more than appeared to have been her pleaded case.Yet again, she was asked to put her case into one document which set out clearly all her allegations. This document was produced on the morning of Thursday, Counsel for the police asked for an adjournment which was refused and for the next day and a half Mrs Fleming has been reading her witness statement and various other documents, the Industrial Tribunal having had a reading day on the Wednesday.It is said on the police authority's behalf that the Industrial Tribunal has failed to do justice between the parties by allowing the Applicant a yet further opportunity to amend her allegations; and by their refusal of an adjournment.During the course of the hearing it became clear to us that as a result of the time lost by this appeal, the police would have ample time to prepare themselves for any resumed hearing. Mrs Fleming's evidence in chief would be likely to extend well into Thursday and it would have been unlikely that Counsel for the police would then have been required to cross-examine; and even if he was, there would be many matters on which he was fully instructed with which he could then deal.But it also emerged that there was a substantial difference between the parties as to the extent to which Mr Allen QC, who has been acting for the Applicant since the middle of August, would be entitled to adduce before the Industrial Tribunal evidence relating to the disciplinary proceedings. It seems to us that there is force in his submissions that in a case of institutionalised discrimination what happened after the main events is admissible if it will assist the Tribunal of fact in deciding what inferences it should draw. In other words, it was not possible to ring-fence the fourth application so as to exclude, during the hearing of the three applications which had been joined together, evidence about what had happened during the disciplinary process. Further, it is essentially unsatisfactory that Mrs Fleming's case, which is all of a piece, should be divided up. In our judgment the interests of justice require that her case should be heard once and in full. Thus, we have concluded that it would be fairer to all parties, and more just, if the fourth application were also to be consolidated with the first three.Having reached that conclusion, the question then arises as to the future conduct of the proceedings. It is clear that before the fourth matter can be adjudicated upon the police must be given a chance to respond to it, and to consider their position in relation to discovery and other such topics. There must remain a risk that what the present Industrial Tribunal has already heard will, in due course, turn out to be inadmissible. Mrs Fleming's statement may well require amendment. Having discussed the matter with both leading Counsel, it seems to us that, despite the waste involved, it would be more sensible if the matter was heard afresh by a new tribunal. In that way, any problem of admissibility will be avoided. In reaching this conclusion we should say that this ruling implies and is intended to imply no criticism of the manner in which the Industrial Tribunal have considered the matter so far.That leaves the question of the police disciplinary action against the Applicant. In our view the decision which had previously been arrived at, namely that the Industrial Tribunal should give their decision before any disciplinary hearing took place was manifestly correct. It seems to us that the Chief Constable who is scheduled to hear the matter cannot realistically consider whether Mrs Fleming has been guilty of oppression, in advance of the Tribunal deciding whether she was driven to behave as she did due to her colleagues' conduct. Whilst we have no power to interfere with the disciplinary process, we can and do express the view that it would be undesirable that the previous position should be altered: it is both logical and just that the disciplinary process should follow the Tribunal's Decision and not precede it. Mrs Fleming cannot complain of any delay between now and the date when the disciplinary hearing takes place, assuming it does so reasonably promptly after the Tribunal's Decision.An application for costs was made by the police. It is their view that throughout this litigation they have solely been concerned to have the issues which they must confront properly set out so that they can prepare to deal with them. They say that the reason for what has happened is a change in the Applicant's case, in terms of emphasis, which is partly attributable to a change of legal adviser. It is said that the adjournment of the present proceedings which has now become necessary involves wasted costs for which the Applicant should be responsible.In our view, whilst we see the force of the submission made, we regard what has happened as an interlocutory mishap which is attributable, largely, to the very difficult type of case which this is. An allegation of institutionalised discrimination will be likely to involve small incidents of no particular importance in themselves, and to cover a wide period of time. It is going to be time consuming and difficult for all the parties to prepare for the hearing. Now that the preliminary skirmishes have taken place, we anticipate that it will be possible for the present Chairman to set a new timetable for a lengthy hearing commencing in the new year, giving the police sufficient time to deal with interlocutory matters meanwhile. Although valuable tribunal time has been 'wasted', it has not been totally lost, and we do not consider Mrs Fleming or her advisers have behaved unreasonably. We dismiss the application for costs.We order, therefore, that the present proceedings be adjourned sine die; that the fourth application be consolidated with the other three; and that the fresh proceedings commence on a date to be fixed.