B v A [1996] UKEAT 1142_94_0205

EAT
B v A
[1996] UKEAT 1142_94_0205 · 1996-05-02
MR JUSTICE BUTTERFIELD: This appeal is brought against the decision of the Industrial Tribunal sitting at Reading, promulgated on 21 October 1994, in which, by a majority, the Tribunal found that the Respondent to the application unlawfully discriminated against the Applicant on the grounds of her sex and awarded compensation in the sum of £3,500. We have this morning made an order that the Respondent to this appeal, that is to say the Applicant below, should be known as "A" and the Appellant as "B".The appeal was considered at an ex-parte preliminary hearing, at which this Tribunal ordered that the appeal should be allowed to proceed to a full hearing, solely upon the grounds that the Industrial Tribunal did not have jurisdiction to entertain the application.The Appellant is the sole proprietor of a firm of Chartered Accountants. The Respondent was employed as his secretary from April 1987 to 22 December 1993. She was then dismissed for gross misconduct. By her application dated 19 January 1994, she complained to the Industrial Tribunal that her dismissal was unfair. Her application contained a detailed summary of her allegations, which included this paragraph:
"I had carefully considered the consequences of this action [she is there referring to the end of her employment] as "B" is an insanely jealous man and believes that he owns me body and sole. In the seven years that I have worked for him I have suffered repeated sexual harassment which I have tolerated only because as a single parent I was dependant on my income to secure the finances of my family. In 1989 after a particularly unpleasant experience I actively sought alternative employment but with the recession just biting I was unable to secure alternative employment at a salary necessary to cover my expenditure, I found myself trapped in a situation. I can produce written statements from previous members of staff to back up this allegation if necessary."
On 4 July 1994 the Respondent wrote to the Industrial Tribunal seeking leave to add a claim for sexual harassment. She gave particulars of her allegations by a letter of 20 July 1994. In that letter she alleged that she had been a victim of a variety of unwelcome sexual advances made to her by the Appellant from early 1988 onwards. Those sexual advances took different forms and were of different degrees of gravity, but in combination, they had caused her very considerable distress and had continued throughout her employment. She further asserted that she had been raped in July 1988 by the Appellant.The application to amend was considered by the Industrial Tribunal at an Interlocutory Hearing on 15 August 1994. Leave to amend was granted. The application was resisted but on general principles, rather than the jurisdiction of the Tribunal to entertain it. The Industrial Tribunal considered a number of authorities and identified as the proper test to be applied by it, "what are the relevant hardships expected to be suffered by the parties if the amendment is, or as the case may be, is not allowed, and what would be the injustice to the parties respectively again, if the amendment is or is not to be allowed?".In applying the "hardship test" the Tribunal reminded itself that the Originating Application, to which we have referred, did make reference to matters connected with sex discrimination and concluded that if the Tribunal refused leave to amend, the Applicant would go without a remedy in respect of what are serious allegations. If the application is granted, said the Tribunal, the Respondent will have the opportunity in due course to defend them to the best of his ability. The full hearing began on 26 September 1994. At that hearing the Appellant submitted that the Industrial Tribunal had no jurisdiction to hear the Respondent's complaints of sexual discrimination, because her complaints had been made outside the statutory time limits. Section 76(1) of the Sex Discrimination Act 1975 provides as follows:
"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."
On that basis, the complaint was plainly made too late. The last possible date on which any form of sexual harassment could have taken place was the date upon which the Respondent was dismissed by the Appellant, that is to say 22 December 1993. Application was not made until July 1994. However, Section 76(5) of the 1975 Act 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."
Thus, it might have been thought, the Industrial Tribunal has been given by Parliament a very wide discretion to permit applications to be made, however late, and of whatever nature and for whatever reason. It is difficult to imagine, some might think, wider words giving discretion to a Tribunal. However, it is contended on behalf of the Appellant, that those words are not to be given the wide meaning that on "first blush" they may impart to the reader, but a more restricted one. Reliance is placed upon the decision of Hutchison & Westward Television Ltd [1977] ICR 279 .In considering the section to which I have referred, Mr

Justice Phillips giving the judgment of the Tribunal said this:

"The words "in all the circumstances of the case" refer, as we think, to the actual facts of the matter in so far as they are relevant to the matter under consideration in section 76(5). [That is to say, whether, in all the circumstances of the case it is just and equitable to allow the complainant to proceed.] "The case" does not refer, we think, to the entire complaint which, if time were extended, would have to be investigated. The words refer to the actual facts so far as relevant to the matter in hand."
The Appellant submits that that decision and indeed the proper interpretation of Section 76(5) is to this effect - that the Tribunal is entitled to take into consideration the nature of the circumstances as to why the application was not made timeously. That and only that should be considered by the Tribunal, not the whole of the circumstances. That being so, the Tribunal in this case erred as a matter of law, in taking into account the seriousness of the allegations being made by the Respondent.In our judgement, that submission is wholly misconceived. As Mr Justice Phillips was to make plain in the case to which we have referred, the words of Section 76(5) are very wide words. They entitle the Industrial Tribunal to take into account anything which it judges to be relevant. Mr Justice Phillips expresses doubt as to whether Industrial Tribunals will get much assistance in exercising that jurisdiction by being referred to cases decided on other tests under other statutes. He describes the words in the section as "very simple wide words" and that it is for the Industrial Tribunal to do what it thinks is fair in the circumstances. With due deference to Mr Justice Phillips we entirely agree with every word he says.In a later passage in the same judgment, Mr

Justice Phillips identifies the test that this Tribunal must apply in appeals such as this:

"... Because it is such a wide discretion conferred upon an industrial tribunal, the task which an appellant has in such a case is a heavy one. Really he must show, if he is to succeed upon appeal, that the industrial tribunal demonstrably took a wrong approach to the matter, or that they took into account facts which they ought not to have done, or that they failed to take into account facts which they should have done, or, as a last resort which is always open upon an appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed tribunal could have reached it."
The second limb of the Appellant's argument is that he can succeed on that basis. His submission here is that once the Tribunal had determined to embark upon a hearing on the merits as well, and finding as they did, that the most serious allegations made by the Respondent were not proved, they were thereafter not entitled to take into account the seriousness of the allegations in reaching their decision on whether or not to extend time.For the Respondent, it is submitted that, the merits of the case and the seriousness of the allegations made are two distinct issues. The issue of seriousness is the gravamen of the allegation. The merits refer to the determination of that allegation. It is submitted that looking at the decision as a whole on the jurisdiction point, the Tribunal did not take account of the merits at all in reaching their conclusion. They took account only of the gravity of the allegations made. We consider that that submission is correct. The Tribunal did not, on the face of the decision, take into account the merits at all. They took into account the seriousness of the allegations and they were plainly entitled to take into account the seriousness of those allegations. We add that it may have been the case that the Tribunal had found all the allegations of sexual harassment advanced by the Respondent not to have been proved. They could still and probably should still have granted the Applicant leave to advance those allegations and thereafter have dismissed them. That way the matter is resolved between the parties, which is part of the duty of the Industrial Tribunal. For those reasons this appeal must be dismissed.