Hereford & Worcester County Council v Clayton & Anor [1996] UKEAT 692_95_0310

EAT

Hereford & Worcester County Council v Clayton & Anor

[1996] UKEAT 692_95_0310 · 1996-03-22

MR JUSTICE MUMMERY (PRESIDENT) This is an appeal against the decision of the Industrial Tribunal held at Shrewsbury over a period of 23 days between 27th July 1994 and 13th January 1995. In the course of the hearing the Tribunal heard evidence from 30 witnesses. The Chairman made over 800 pages of notes. The Tribunal received a similar number of documents in evidence. The Extended Reasons for the decision, notified to the parties on 30th March 1995, occupied 112 pages, based on no less than 82 pages of counsels' skeleton submissions and dealing with 34 specific complaints of sex discrimination ranging over a period of five years (18th September 1989 to 26th July 1994), the period of Mrs Clayton's employment, first as a recruit, then as a probationer and finally as a fire fighter in the Fire Service.

The Tribunal reached the unanimous conclusion that Mrs Clayton's claims of sex discrimination succeeded against her employers, the Hereford and Worcester Fire Brigade (a constituent part of the Hereford and Worcester County Council) and two employees of the Fire Brigade, sub-Officer Gordon Perkins and sub-Officer Ronald East.

On 4th May 1995 separate Notices of Appeal were served by the Fire Brigade and by the two sub-officers. The Fire Brigade's Notice of Appeal was served by Mr R K Yates, Director of Administrative and Legal Services with the County Council. Ms Omambala was instructed by him as counsel for the Fire Brigade at the hearing before the Industrial Tribunal. The Notice of Appeal for the two sub-officers was served by solicitors, Messrs T A Matthews of Hereford. At the hearing before the Industrial Tribunal they instructed Miss Louise Chudleigh as counsel for those sub-officers. We understand that the County Council provided an indemnity for the costs of those parties at the Industrial Tribunal. On the hearing of the appeal, which lasted two days (21st and 22nd March 1996), we understand that Ms Omambala and Ms Chudleigh were jointly instructed by the County Council for all appellants. Their skeleton argument helpfully summarised the eight principal grounds on which they would argue that the Tribunal had erred in law. In order to avoid unnecessary repetition, Ms Omambala and Ms Chudleigh divided the submissions between them. Ms Omambala made submissions on questions relevant to liability for sex discrimination and victimisation under the headings of direct discrimination, detriment, victimisation and vicarious liability. Ms Chudleigh dealt with questions relating to jurisdiction and time limits, the reception of expert evidence, allegations of bias and contentions of perversity.

Mrs Clayton was represented both at the Industrial Tribunal and on this appeal by Mr David Bean, instructed by Messrs Robin Thompson & Partners.

The Hearing of the Appeal

As the Full Reasons decision of the Industrial Tribunal and the Notices of Appeal were of unusual (and unnecessary) length and raised many points, two directions hearings were held with a view to shortening the length of oral submissions on the appeal and to ensuring that everything that should be done in preparation for the hearing was done in good time. At the first hearing for directions held in Chambers before the President of the Appeal Tribunal on 21st July 1995 directions were given for the amendment of the name of the Fire Brigade to "Hereford and Worcester County Council". A timetable was laid down for the swearing and filing of Affidavits relating to the allegations of bias against the Tribunal in the Notice of Appeal and for such Affidavits to be submitted to the Chairman and lay members for their comments. As the Fire Brigade and the two sub-officers' legal representatives requested that all of the Chairman's Notes of the hearing should be produced, directions were given for a further hearing to take place before a full Appeal Tribunal and for the application for Chairman's Notes to be adjourned to that hearing. Directions were also given for skeleton arguments relating to procedural matters for determining the appeal and for the extension of the time for filing a Respondent's Answer to the appeal.

The further hearing for directions took place on 14th November 1995. At that hearing it was decided that all the matters raised in the Notice of Appeal and the Respondent's Answer should be argued at one hearing. We declined to make an order at that hearing, on the Respondent's application, to strike out parts of the appeal dealing with bias and perversity. We did not think that it would save time or costs to deal with that application separately from the substantive appeal. We set aside two days for the hearing of the appeal as sufficient for dealing with all the points. We gave leave for the service of further evidence in relation to the bias point. We refused to make an order for the production of the Chairman's Notes. Instead, the application was adjourned to the full hearing of the appeal on the basis that it was unlikely that we would consider that it was necessary for the Notes to be produced in order to decide the appeal but, should we change our minds, the application was there to be reconsidered. We made no directions about representation, but we made an observation that we did not consider that it was justified to have separate legal representation of the Fire Brigade and the two Fire Officers. We expressed the view that the appeal should be presented either by one counsel or, if two counsel were instructed, by two counsel acting together for the Appellants, in order to avoid unnecessary repetition of arguments. Finally, we gave directions for the exchange and lodging of skeleton arguments. There was compliance with that direction. We are grateful to all counsel and those instructing them for their co-operation in keeping the arguments within the two days allotted for the hearing.

At the end of the hearing we were satisfied, and we hope that the parties and their advisers were satisfied, that no further time was needed to argue and decide points raised on the appeal. The preliminary hearings for directions contributed substantially, in our view, to the efficiency with which those involved conducted the appeal.

The Decision

During the course of the hearing of the appeal we adopted the unusual course of asking for the various grounds of appeal to be argued point by point by each side, instead of following our more usual course of hearing all the arguments for the appellants followed by all the arguments for the respondent and finally hearing a reply from the appellants. We are confident that this procedure made the best use of the time available. It enabled us to announce our decision on the various points as the hearing proceeded. As and when we announced our decision on the various points, we made it clear that we would give reasons for those conclusions in a single judgment after the end of the hearing.

By the end of the hearing we had unanimously decided that the appeal failed on all grounds and should be dismissed for reasons given in this reserved judgment. Mr Bean, for Mrs Clayton, indicated that there would be an application for costs, probably against the County Council. We decided that the parties would be in a better position to argue that after they had seen the reasons in this judgment. We indicated that, if the application for costs was to be pursued and resisted, written outline arguments on the issues of costs should be exchanged and lodged with the Tribunal prior to the hearing of the costs application. We also indicated that we considered that the factors potentially relevant to the costs application would include(a) details as to who was in fact paying the costs of the Appellants, both in the Industrial Tribunal and on this appeal; and

(b) the circumstances, mentioned in more detail below, in which the County Council made an unqualified admission of liability in an open letter from the County solicitor (Mr Yates) on 28th February 1994 and retracted that admission on 18th July 1994, shortly before the start of the Industrial Tribunal hearing at Shrewsbury.

The Background Facts

It is not necessary in this judgment to deal with the factual background to the claims in the same detail as set out in the Industrial Tribunal's decision. We shall not even attempt to summarise all the findings of fact. We shall only set out in this judgment those facts necessary to an understanding of the grounds of appeal.

As we see it, the important background facts are these:-

(1) Mrs T Clayton (nee Jones) served in the Army between 1983 and 1988. On 18th September 1989, at the age of 23, she joined a Recruit's Course for the Fire Service. She passed the Recruit's Course on 22nd December 1989.

(2) Her term as a probationer started in January 1990 when she joined the Blue Watch at Hereford, where Ronald East was a sub-Officer. Her first probation report was produced on 30th April 1990. On 17th May 1990 she had an "unsatisfactory performance" interview.

(3) On 1st July 1990 Mrs Clayton made complaints about the conduct of sub-Officer East. On 12th July 1990 she was transferred to the Blue Watch in Worcester.

(4) On 26th November 1990 a 15-month probationary report was produced. A 20-month report was produced on 30th May 1991. The probationary period was completed on 18th September 1991.

(5) On 25th March 1992 Mrs Clayton joined the Green Watch at Hereford where Gordon Perkins was a sub-Officer.

(6) On 22nd December 1992 Mrs Clayton went on sick leave.

(7) On 12th May 1993 Mrs Clayton presented an application to the Industrial Tribunal complaining of sex discrimination by the Fire Brigade and by the two individual sub-officers. Her complaint was stated in these terms -

"I commenced my employment with the first respondent as a fire fighter on or about 18th September 1989.

Throughout my period of employment with the first respondents I have been subjected to less favourable treatment on the grounds of sex contrary to S.1(1)(a) and S.6 of the Sex Discrimination Act 1975 and in breach of the EC Directive 76/207.

I have been subjected to less favourable treatment on the grounds of sex in training and drill sessions, operational duties and generally during the course of my employment by the first respondents, their servants or agents."

(8) On 8th June 1993 the Fire Brigade served a Notice of Appearance denying that any of the Respondents had subjected Mrs Clayton to less favourable treatment on the grounds of sex. Sub-officers East and Perkins also served notices of appearance at about that time containing general denials of discrimination.

(9) In August 1993 Mrs Clayton passed her fire fighting examination.

(10) On 17th September 1993 Assistant Chief Fire Officer Haynes produced a report on allegations made by Mrs Clayton about her treatment in the Fire Brigade.

(11) On 31st January 1994 Dr Mezey produced her first report on the state of Mrs Clayton's health. She produced a second report on 10th March 1994.

(12) On 28th February 1994 the County's solicitor wrote an open letter to Mrs Clayton's solicitors following a hearing for directions which had taken place in the Industrial Tribunal on 16th February 1994. The letter states as follows:-

"I write further to the hearing of 16th February 1994 and apologise for the delay in providing the necessary information. As discussed, I was not able to meet Mr Perkins until Friday of last week in order to clarify the position.

I now confirm the following to be the situation as regards the three respondents:-

(1) Liability is admitted on behalf of the Hereford and Worcester Fire Brigade.

(2) Liability is denied on behalf of Mr East.

(3) Liability is denied on behalf of Mr Perkins.

I spent a long time speaking to both Mr East and Mr Perkins and explaining that this situation creates some difficulties. Both wish me to continue to represent them - for the moment. I will do this although clearly I shall have to review this depending upon how matters develop.

As discussed, I should be grateful to know, whether if we do manage to reach any settlement in relation to the Brigade's position, you would actually want to pursue any kind of proceedings against either or both of Mr East and Mr Perkins. Clearly, if we were negotiating about a settlement as I would wish now to see happen, I would be negotiating on behalf of the Brigade and would anticipate that it would be the Brigade who would deal with any terms of settlement. I would not anticipate either Mr East or Mr Perkins being directly involved.

I realise you are without instructions, in relation to the possibility of negotiating settlement but I confirm my keenness and willingness to meet with you as soon as possible to see if we can reach agreement. I should like to fix a date to meet on the understanding that this day may be vacated if you still do not have instructions by that stage. I would be grateful to hear from you on this point."

(13) No settlement was reached. We have not seen the subsequent correspondence. All that we know is that, as stated in paragraph 1.10 of the Extended Reasons, the Fire Brigade withdrew the admission of liability on 18th July 1994. We do not know the reasons for the change of position. We do not know at present what explanation was given to the Industrial Tribunal for the retraction of the open, unqualified admission of liability.

(14) By letter dated 26th July 1994 (ie, the day before the hearing in the Industrial Tribunal started) Mrs Clayton was given a medical discharge from the Fire Brigade with effect from 18th October 1994.

(15) When the hearing began on 27th July 1994 the Tribunal were provided with a list of Mrs Clayton's complaints of sex discrimination divided up into periods - 1989, January to July 1990 (Hereford), July 1990 to March 1992 (Worcester), 25th March 1992 onwards (Green Watch, Hereford) and finally events which post-dated the commencement of the Industrial Tribunal proceedings on 12th May 1993. The list of complaints numbered 21 items.

(16) There were a number of incidents during the hearing relied upon by the Fire Brigade as indicating bias on the part of the Chairman of the Tribunal. The only incident worthy of mention at this stage occurred on 11th November 1994 when the Chief Fire Officer, D J O'Dwyer attended the hearing "as an interested observer". As a result of his experiences on that day the Chief Fire Officer wrote a letter of complaint to the Regional Chairman (Mr M Bird) in Cardiff with a copy to the Lord Chancellor's Office for information. In the letter the Chief Fire Officer complained that -

"The proceedings which took place at the beginning of the morning session clearly indicated to all of us assembled that the Chair was biased towards the plaintiff and was therefore not impartial."

The Chief Fire Officer then gave an account of the way in which the Chairman of the Tribunal had made a complaint at the start of the hearing about the parking of cars by Firemen, with specific reference to the Chief Fire Officer and the Deputy Chief Fire Officer. The Chief Fire Officer complained that the "outburst was aimed directly at me and other fire fighters" and that, when he tried to respond to the allegation, the Chairman refused to listen and walked out. In the remainder of the letter the Chief Fire Officer set out his complaints against the conduct of the Chairman, required an explanation of various matters and complained that the Chairman was not an impartial person. Towards the end of the letter he wrote -

"... I therefore require that Mr Thompson is removed as Chair of this and any other Tribunals until his ability and impartiality have been re-assessed. ..."

He also required a written apology for the outburst. It does not appear that the letter was written on legal advice and, indeed, no application was made by or on behalf of the Fire Brigade to the Tribunal to disqualify the Chairman or either of the lay members from continuing to sit on the case. The Regional Chairman replied to the letter on 21st November 1994.

This summary of the main background facts and the circumstances of the hearing before the Tribunal in Shrewsbury give some idea of the extraordinary nature of this case, of the problems faced by the Industrial Tribunal in determining it and of the sort of points argued on this appeal.

The Decision of the Tribunal

Before dealing with the various heads of argument, we should first summarise the main conclusions of the Tribunal on the issues which have generated the voluminous complaints in the two Notices of Appeal.

Conclusions of the Industrial Tribunal

The conclusions of the Industrial Tribunal on the main points can be conveniently summarised as follows:-

(1) Time limits

It was just and equitable to consider all the complaints made by Mrs Clayton, notwithstanding that they were out of time.

(2) Acts of discrimination

The Tribunal found 15 acts of discrimination listed under paragraph 45.1 of the decision. In respect of each act of discrimination they concluded that there had been different treatment on the ground of sex. They indicated whether it was a single act or a continuing act. If it was a single act, they identified whether it was out of time and whether discretion had been exercised to extend the time. They stated whether the act in question had caused detriment to Mrs Clayton and whether it was committed by a person in the course of his employment, so as to make the County Council vicariously liable for the discriminatory act.

(3) Of the three alleged acts of victimisation the Tribunal found that the County Council were only vicariously liable for one such act namely, the ostracism of Mrs Clayton by other Fire Fighters after the sex discrimination complaints were made. The Tribunal rejected the complaint concerning damage to Mrs Clayton's boots. As to the third claim, the vandalising of her cap, the Tribunal found that the acts took place and constituted victimisation, but the County Council were not vicariously liable, as the acts were not done in the course of employment.

(4) Less favourable treatment

In each case where the Tribunal found that there had been an act of discrimination. They concluded that -

"...In respect of the treatment that the applicant received she was less favourably treated than the male fire fighters. It was clear from the evidence that we heard from the many fire fighters who were called to give evidence that Messrs East and Perkins treated them well. They were not subject to the same harsh and unfriendly regime as the applicant was."

(5) Discrimination on grounds of sex

In each case the less favourable treatment of Mrs Clayton was on the ground of her sex. The Tribunal said -

"We have not been satisfied that the respondents have given any satisfactory explanation for their treatment of the applicant. We totally reject the assertion that this was all because of the applicant's lack of capability and her inability to accept that. The evidence from the respondents was totally anecdotal and at variance with the documentary evidence and the evidence we heard on behalf of the applicant. As we have already said, we prefer the evidence given on behalf of the applicant."

(6) Detriment

Mrs Clayton had suffered detriment. They said in paragraph 45.9 of the decision -

"...The detriment suffered by the applicant is clear. She is a shadow of her former self. Her personality and self-confidence has been totally destroyed. It has ended up in the applicant being forced to retire from the Fire Brigade through ill-health brought upon by these very sad and appalling events. Her daily life was a misery. Her career was shattered. One only has to examine the evidence of Dr Mesey to realise the extent of the applicant's detriment."

(7) Defence

The Tribunal did not accept that the County Council had any defence whatsoever to the claims on the basis that they

". ..took such steps as were reasonably practicable to prevent the employees doing that act, or from doing in the course of his employment acts of that description." (S.32(2) 1975 Act)

The Tribunal concluded that the County Council did little or nothing to prevent such discrimination taking place. " The Respondent's management was totally ineffectual, in our view". They added that there was virtually no equal opportunities training prior to Mrs Clayton's complaints of sex discrimination. What the County Council had now done, they had done too late or had failed to ensure that their orders were obeyed. They carried out no effectual monitoring of the situation throughout. When management did know what was going on, it seemed that they did little or nothing to remedy the situation. They effectively failed to manage the situation after Mrs Clayton had made her complaints.

(8) Causation

The Tribunal concluded that the cause of Mrs Clayton being forced to leave the Fire Service was an accumulation of all the matters set out in the decision, starting with the events that occurred in Training School. The Tribunal said, in the final paragraph of their decision, (paragraph 45.39) -

"...As far as we are concerned it is a question of an accumulation of problems and the straw that finally breaks the camel's back. All must bear some part of the blame for the applicant's present predicament. At the end of the day we can do no better than to refer to the view of Dr Mesey when she said that the applicant's present illness was largely 90-95% due to her experiences in the workplace."

The Grounds of Appeal

The grounds of appeal were argued in the following manner. Ms Omambala argued that there were errors of law in the decision of the Tribunal on questions of direct discrimination, detriment, victimisation and vicarious liability. We heard her argument and those of Mr Bean, on behalf of Mrs Clayton, on each point and announced our ruling at the hearing that none of these grounds revealed an error of law. Ms Chudleigh argued the grounds concerning the jurisdiction of the Tribunal to entertain complaints that were not pleaded or complaints that were out of time, the treatment of expert evidence, alleged bias on the part of the Tribunal Chairman and the absence of evidence to support certain findings of the Tribunal, resulting in what was alleged to be a perverse decision. We heard argument on each point in turn from first Ms Chudleigh and then from Mr Bean. We announced our ruling on each point as we went along. No error of law was revealed in any of these grounds.

Our overall conclusion is that the decision is comprehensive and correct. If any criticism is to be made of it at all, it is not on any of the grounds raised in the Notice of Appeal. It is on the ground, which is not explained in the decision and has not been adequately explained to us by counsel, as to why the Industrial Tribunal allowed the County Council to withdraw its open and unqualified admission of liability. This will no doubt be relevant to the issue of costs, since Mr Bean has already indicated that he will be making an application, primarily against the County Council, that they pay the costs of this appeal. On such an application it will become relevant to consider whether the appeal was frivolous, vexatious, improper or unreasonable. It may be relevant to take into account the fact that the County Council had admitted liability in the open letter of 28th February 1994. At the hearing of the appeal we expressed surprise that the Tribunal had dealt with the matter of the admission so briefly when it had dealt with so many other matters at such length. All that was said on the matter is contained in paragraph 1.10 of the decision where the Tribunal said -

"...Messrs East and Perkins had denied liability throughout. On 28th February 1994 the Head of Administrative Services and County Solicitor for Hereford and Worcester County Council, acting on behalf of the respondents, admitted liability on behalf of the Hereford and Worcester Fire Brigade. However, on 18th July 1994 that admission was retracted."

The hearing in the Industrial Tribunal began on 27th July 1994. There is nothing in the Industrial Tribunal Rules of Procedure 1993 dealing with the withdrawal of admissions, but we would have expected the Industrial Tribunal to have included in the decision a more detailed explanation of the circumstances in which the admission was retracted. Mr Bean has informed us that the withdrawal of the admission was opposed. In deciding whether or not to allow the admission to be withdrawn we would have expected the Industrial Tribunal to have acted in accordance with the general principle in civil litigation conveniently summarised in the Supreme Court Practice Vol.1, 27/3/8 -

"Resiling from admissions -

Where a defendant admitted liability in a letter to the plaintiff it should not be permitted to resile from that admission unless it was just to allow the defendant to do so having regard to the interests of both sides even if the defence had not been amended so as to plead the admission: Bird v. Birdseye Walls Ltd , The Times July 24th 1987, CA."

See also the recent Court of Appeal decision in Gale v. Superdrug Stores Plc

[1996] 1 WLR 1089

. The discretion is exercised on the same principles as govern other kinds of amendment - the balance of prejudice and justice and other factors, such as bad faith.

We shall say nothing more on this point until we hear an application for costs against the County Council. On such an application we will expect to be informed by those representing the County Council as to the reasons why the admission was retracted and the case fought for a 23-day hearing, from which this unsuccessful appeal has been brought.

We shall now deal with each of the eight areas covered by the grounds of appeal. We shall not attempt to rival the comprehensiveness of the Industrial Tribunal's decision. It is not necessary to attempt that. Our jurisdiction is limited to appeals on questions of law in the decision. All that we need to is to focus on the legal criticisms made of the various aspects of the decision and to state why we have concluded that the criticisms do not reveal any error of law.

Direct Discrimination

As already indicated the Industrial Tribunal set out in their decision (paragraph 45.1) 15 acts of discrimination and said in relation to each of them that there had been "different treatment by reason of sex". In the case of direct discrimination, such as this, it is necessary to establish that the person discriminating has, on the ground of sex, treated a woman less favourably than he treats or would treat a man: S1(1)(a) of the 1975 Act. It is not sufficient simply to identify a difference in treatment. The Industrial Tribunal has to consider whether that difference in treatment amounts to treating the complainant less favourably than someone else (ie. male recruits, probationers and fire fighters) where the relevant circumstances are the same or not materially different. Ms Omambala argued that the Industrial Tribunal failed to do this and had not made any specific relevant finding or conclusion on this point. We reject this criticism. It is necessary to read the decision of the Industrial Tribunal as a whole. Paragraph 45.1 of the decision, which identifies the acts of discrimination, must be read with paragraph 45.7 of the decision where the Tribunal said that in each case where they had found an act of discrimination, they considered that, in respect of the treatment, Mrs Clayton was less favourably treated than the male fire fighters.

We also reject the criticism that the remark made by Mr East to Mrs Clayton (see para 21.1) was, in the circumstances, "gender neutral" and that the Tribunal had not found that it included a significant element of a sexual character.

Detriment and Treatment

On this point it was submitted that a sexist insult or remark, without more, is not "detriment" within the meaning of the 1975 Act, even if the remark caused distress to the Applicant: De Souza v. The Automobile Association

[1986] ICR 514

This submission was made in the context of the "Good news/Bad news" incident which is the subject of findings in paragraph 45.1.8 of the full reasons. The Tribunal's conclusion was that there was detriment to the Applicant.

Ms Omambala contended that there were no relevant findings that it was intended that the Applicant should overhear the remark, or that it was known or reasonably to have been anticipated that the remark would be passed on or that the Applicant would become aware of it in some other way.

The incident in question is described in paragraph 14.4. D O Timms stated to the Watch that -

"The good news is that you are getting someone else for the Watch, the bad news is that is a woman - Tania Clayton".

In paragraph 45.33 the Tribunal stated that this gave the wrong signal to the Watch and -

...enabled them to continue in the way that they wished and frankly we took the view that it gave the Watch carteblanche to discriminate against the applicant".

In our judgment, there was no error of law in finding that this was detriment. The remark had not been made to the Applicant, but that does not prevent a remark of this kind in this context from having detrimental consequences for her. Detriment is a question of fact which the Tribunal were entitled to find had been established by the Applicant.

Victimisation

The Tribunal made findings of the alleged acts of victimisation (para. 45.5): the vandalising of her cap in July 1993 by persons unknown and the ostricism of her by numerous, but unspecified, fire fighters after she had made her complaint of sex discrimination. More details are contained in paragraph 30.

It was contended on the appeal that the Tribunal erred in law in not asking and answering relevant questions on victimisation, namely -

(a) Was the Applicant treated less favourably than someone (a comparator) who had not done a protected act? It is established on the authorities - Aziz v. Trinity Street Taxis

[1988] ICR 534

- that a comparative exercise is required.

(b) Was the less favourable treatment due to the Applicant having done a protected act? (the causation test).

It was argued that it was not safe to infer that the Tribunal had found that the comparator question had been answered favourably to the Applicant. Reference was made to paragraph 45.26 which describes an incident of a male fire fighter (Station Officer Perkins) being sent to Coventry by other fire fighters. Those who gave evidence for the Fire Brigade refused to condemn that behaviour.

It was submitted on the second question that, as a matter of law, the Applicant could not overcome the hurdle of causation without specifically identifying the alleged discriminator(s). That had not been done by the Tribunal.

In our judgment, this ground of appeal fails. The Industrial Tribunal gave itself a proper self direction as to the requirements of victimisation. They set out the principles as stated in Aziz . Their finding of liability was based on the satisfaction of those requirements, both as to the comparator and the causation test.

Vicarious Liability

The Tribunal found vicarious liability on the basis of particular acts of employees which they were held to have committed in the course of their employment.

Ms Omambala argued that the Industrial Tribunal had erred in law because they had failed to make findings as to whether the unauthorised wrongful act of the employee was so connected with what he was employed to do as to be a mode of doing it. Reasons should have been given for making such findings and that had not been done.

In our view, there is no error of law. The Tribunal made findings of fact namely, that the acts were committed in the course of employment. That is a sufficient finding of fact to establish vicarious liability and, in the absence of an error of law, there is no appeal against such a conclusion.

Jurisdiction

At this point in the argument Miss Chudleigh made submissions. We shall set out her submissions under the various headings and then state our conclusions on all of them.

On the jurisdictional aspects of the Tribunal's decision it was alleged that there were a number of errors.

(1) Scope of complaint

The jurisdiction of an Industrial Tribunal in sex discrimination cases is limited to the determination of the complaints made to it. The Court of Appeal have held that it is not for an Industrial Tribunal to find acts of discrimination of which no complaint has been made and then give a remedy for those other acts: Chapman v. Simon

[1994] IRLR 124

(para 42). It was argued that the Industrial Tribunal had erred in law in failing to confine its findings and decisions to the acts which the Applicant had complained of.

(2) Out of time point

Miss Chudleigh submitted that the Industrial Tribunal had erred in law in holding that certain acts were continuing acts extending over a period and were not therefore out of time and also in the exercise of discretion to extend time for those acts which were not continuing acts.

(a) Continuing acts

This submission rested on S.76(6)(b) of the 1975 Act. It was contended that the Industrial Tribunal made no finding that there was a discriminatory policy, rule, regulation or regime in place. A continuing act should be approached as being a rule or regulatory scheme which, during its currency, continues to have a sexually discriminatory effect: Sougrin v. Haringey Health Authority

[1992] ICR 658

The Tribunal failed to make specific findings on this point and also failed to make any findings in respect of the period for which the continuing act identified had endured.

(b) Discretion

Miss Chudleigh made submissions under S.76(5) of the 1975 Act under which the Industrial Tribunal has jurisdiction to extend time, if it considers that it "just and equitable" to do so.

It was contended that the Tribunal's decision to extend time should be set aside and this Tribunal should declare that all the complaints relating to events prior to 11th February 1993 were out of time. It was submitted that no application was made to extend time until the final day of the hearing. There was no evidence on which the Tribunal could have based its decision to exercise the discretion in the Applicant's favour and no explanation was given for the delay. In fact, the delay was excessive.

These submissions were based on more detailed grounds as follows:-

(1) The time limit for presenting a complaint is three months after the act complained of: S.76(1). The application was presented on 12th May 1993. The only complaints which were in time were those relating to acts alleged to have taken place after 11th February 1993. The allegations in fact considered by the Tribunal went back as far as 18th September 1989. The complaints against Mr East related to the period January to 12th July 1990 when the Applicant was transferred from Mr East's watch. Those complaints were two and a half years out of time.

(2) In order to exercise the power to extend time, as it considers just and equitable, an Industrial Tribunal must make findings of fact and base the exercise of discretion on evidence. It must not take irrelevant matters into account and it must exercise a discretion in relation to each complaint separately, not by way of a blanket finding.

(3) The Applicant gave no evidence on relevant points. The Tribunal wrongly took account of certain matters not based on evidence from the Applicant about her position in the initial stages of employment, and about the effect of litigating about her complaints. The Tribunal relied on public policy reasons for not forcing people to litigate at the first opportunity and other irrelevant matters such as the Applicant's point of view and the good name of the Fire Brigade.

The Tribunal took into account the extensive nature of the discrimination and said that it was " overwhelmingly deliberate, offensive and damaging to the applicant ". Miss Chudleigh's submission was that this was an irrelevant consideration.

Expert evidence

Miss Chudleigh then moved to the reception of expert evidence by the Tribunal. She argued that the Tribunal erred in law in admitting and relying upon the evidence of an expert, Dr Mezey, a consultant psychiatrist, on the very issue on which the Tribunal had to decide the case. The Tribunal accepted her evidence that there had been unfair treatment of the Applicant. That was contrary to the legal principle that an expert witness may not give evidence on the ultimate issue in the proceedings: Haynes v. Doman

[1899] 2 Ch 13

at 24 .

Although the opinion of Dr Mezey on the Applicant's mental health was admissible, her opinion whether the Applicant had suffered sex discrimination was not. The result was that the whole of the decision was legally flawed.

Bias

Most serious of all, bias on the part of the Chairman of the Tribunal was alleged to have existed at various times during the hearing.

It is common ground that the test is as laid down by the House of Lords in R. v. Gough [1993] AC at 670E. The test is that of real danger, in the terms of possibility, rather than probability, of bias -

"...in the sense that he might unfairly regard (or have unfairly regarded) with favour (or with disfavour) the case of a party to the issue under consideration by him."

We have to ask whether a reasonable observer present at the hearing, being neither a party in or associated with a party to the proceedings, but knowing of the issues, would reasonably gain the impression of bias: Peter Simper & Co Ltd v. Cooke

[1986] IRLR 19

. The issue is not determined by the parties' subjective perception or belief that there was bias, or by the subjective belief of the Chairman that there was no bias or by the fact that no complaint of bias was made during the hearing.

On this point voluminous Affidavit evidence was filed. It was submitted that the evidence demonstrated that the Chairman behaved in such a way to give the impression of the possibility of bias and that he had made up his mind against the Appellants on a matter for decision, prior to giving the Appellants an opportunity of addressing the Tribunal on the evidence. It was submitted that the decision of the Tribunal should not be allowed to stand, as the evidence available indicated that the decision was tainted with bias.

Four particular matters were the subject of evidence and detailed argument:-

(1) The Chairman reprimanded the male fire fighters about car parting facilities at the premises of the Tribunal during the hearing.

(2) The Chairman asked, during the evidence of Mr Clayton, prior to any evidence from the Appellant of Mr McMunn, " Is this man still in his job?"

(3) The Chairman commented at the beginning of the cross-examination of Mr Shutt - "Witnesses like you are few and far between."

(4) The perversity of the decision itself was an indication of the real possibility of bias on the part of the Chairman.

Perversity - absence of evidence of findings

Miss Chudleigh submitted that there was no evidence to support particular conclusions and findings of fact by the Tribunal, factual findings which no reasonable Tribunal could have made on the evidence it heard. This submission carried with it the inevitable repetition of the request, already refused, for production of all the Chairman's Notes of Evidence of the hearing. It was argued that, without all those notes, these grounds of appeal could not be developed.

The Tribunal had purported to adjudicate on 34 specific complaints, including matters which the Applicant did not rely on at the hearing as acts of justiciable discrimination. It was submitted that no reasonable Tribunal would have identified and adjudicated upon acts of discrimination which had not been alleged.

In one case (against Mr Perkins in relation to "carry down") the Tribunal made two findings of discrimination in relation to the same "carry down". No reasonable Tribunal could have done that.

Finally, the Tribunal had taken into account matters by way of background, without explaining the relevance of them or the extent to which they have been relied upon.

Before we state our conclusions we should make a general comment about the way in which this appeal has been conducted. Even in only the two days that this appeal lasted, the Appeal Tribunal gained a clear and strong impression of the manner in which this case had been conducted over 23 days in the Industrial Tribunal. No real attempt has been made to select what is important from what is not important. Every point is taken. The Full Reasons are criticised on many factual matters, instead of confining the arguments to questions of law.

Conclusions

As we indicated during the course of the hearing we have decided to dismiss the appeal because the decision of the Tribunal in the Applicant's favour was one which the Tribunal were entitled to reach after 23 days of evidence and on proper self-directions of the law.

For the purposes of this judgment we do not propose to examine the Industrial Tribunal's decision in the excessive detail with which Ms Omambala and Miss Chudleigh have examined it.

We preface our consideration of their detailed points with these preliminary observations:-

(1) The Full Reasons of the Industrial Tribunal do not attain standards of perfection. No judicial decision has to satisfy such standards. It is impracticable and impossible to do so. It is not difficult to find some fault with the Full Reasons. Allowance must be made for the difficulty of considering and digesting hundreds of documents and the very detailed written and oral submissions. The decision is unnecessarily long and diffuse. Instead of making succinct findings of fact based on the evidence, the full reasons set out a lot of the evidence at length. Instead of stating short and largely uncontroversial legal principles relevant to claims of sex discrimination, the Chairman has included long and repetitive quotations from the authorities.

The Appeal Tribunal is not, however, any more than any other appellate body, in the business of awarding marks out of 10 to the decision under appeal. The function of the Appeal Tribunal is to take a limited, second look at the case. The limits confine the jurisdiction of the Tribunal to questions of law. In discharging that function it is settled that the Appeal Tribunal does not expect Industrial Tribunals to do more than state relevant findings of fact and to explain the application of legal reasoning to the facts, sufficient for the losing party to know why he has lost and why his opponent has won.

(2) Consistently with this it is a legal cliche that the Appeal Tribunal does not adopt a fussy, pedantic approach in determining whether the Industrial Tribunal's decision on the dispute is legally right or legally wrong.

The detailed points

Our conclusions on the detailed submission are as follows:-

(1) The issue of discrimination

As already indicated in our comments on Ms Omambala's submissions, there is no legal error in the Tribunal's approach or decision. The Tribunal made findings of fact about the treatment which the Applicant had received, but which male fire fighters, in relevant similar circumstances, did not receive. The Tribunal considered the explanations for that treatment. The reason advanced to and rejected by the Tribunal for much of the treatment was that the Applicant was substandard: para. 45.7. The Tribunal were entitled to conclude that the ground of treatment of the Applicant was based on her sex. There was no misdirection or misapplication of the law; only a result which did not recommend itself to the Appellants.

The same comments apply to the findings of victimisation and detriment on which we have already made comments when dealing with Ms Omambala's submissions. The Tribunal were entitled to find that psychiatric damage was suffered by the Applicant in consequence of the treatment to which she was subjected, that that damage was detriment and that the treatment she had suffered was a result of her having complained of discrimination. On the specific point concerning the "good news/bad news" remark, the Tribunal were entitled to find that that was a discriminatory remark which caused detriment to the Applicant, even though the remark was not addressed directly to her. A discriminatory remark made about a person can cause them detriment, such as by undermining their position in their employment.

(2) Jurisdiction

The Tribunal has the widest possible discretion to extend time limits under S.76(5). If they were entitled in law to grant an extension, then the further point taken on the alleged misdirection in relation to continuing acts becomes academic. We shall therefore deal first with the question of discretion.

In our judgment, the Tribunal were entitled to grant an extension of time, if they considered that it was just and equitable to do so, as long as there was no error of principle or perversity in the exercise of that discretion.

It was not necessary for the Applicant to show, as she would have had to show in a case of unfair dismissal, that it was not reasonably practicable for her to have brought her case earlier within the three-month period. The Tribunal has a discretion to extend time without any prior formal application and is entitled, without hearing direct evidence on the point, to make inferences of fact about the reasons for delay from the relevant findings of primary fact about the treatment of the applicant during the course of the employment relationship.

There is no legal error in considering the question of extension of time at the end of the hearing rather than at the beginning of it. In this case it is relevant to note that the Council's open admission of liability was not confined to matters occurring within three months before the application was presented. The case was clearly an unusual one from the start. It had been indicated that 12 days would be needed for the hearing. The Applicant had brought her case while she was still in the employment of the Council. There are disincentives in pursuing such a claim. It can lead to victimisation and in fact did so in this case. Even if it does not lead to victimisation, it can obviously cause difficulties at work if the applicant wishes, as this Applicant wished, to continue working.

(3) Continuing acts

In our judgment, there was no error of law in the Tribunal's determination of the issue of continuing acts. The Tribunal appreciated the distinction between continuing acts and one-off acts. Thus, it found Mr East's negative report was a single act with continuing consequences. The Tribunal were entitled to find that the carry down, extra drills and rostering over a period were continuing acts extending over a period. There was no error of law on this point.

(4) Expert evidence

Dr Mezey gave psychiatric evidence. Such evidence is admissible. It was not objected to at the time when it was given. The Tribunal were well aware, as appears from para. 8.3 of the Full Reasons, that it was for them to decide and not for Dr Mezey or anyone else to decide whether the Applicant had been subjected to acts of sex discrimination.

(5) Bias

The legal position on bias is this -

(1) The appellants have to establish a real danger of bias in terms of possibility.

(2) No bias was alleged against either of the lay members.

(3) After the withdrawal of a number of allegations of bias, only three areas were left for argument - the car parking incident; the question of Mr McMunn and the comment on Mr Shutt as a witness.

We deal briefly with each in turn.

(a) The car parking incident

This incident is dealt with in the Affidavits. We need not repeat that detail.

In our view, this was a storm in a teacup. It would certainly have been better if the Chairman had not become personally involved in the matter, which should have been dealt with by a member of the Tribunal's administrative staff. But it has not been established that the Chairman's involvement carried with it a real danger of bias. The incident had nothing to do with the Appellants or their case. It involved the new Chief Fire Officer, who was not a witness in the case and was not alleged to be responsible for any of the alleged acts of discrimination.

(b) Mr McMunn

We are satisfied from the Affidavits and the Chairman's comments that there was no real danger of bias in relation to this question. In the event the Tribunal did not find any act of discrimination in the McMunn incident.

(c) Comments about Mr Shutt

We are also satisfied that there was no real danger of bias indicated by this comment. We add that it would have been preferable if the Chairman had not made any comment about the witness, but the fact he made a comment is not a ground for vitiating the decision.

(4) Perversity

The general complaint of the Appellants is that all the findings of fact against them are "plainly perverse decisions".

In our view, this ground of appeal is an abuse of the appeal process. It is an attempt to secure a rehearing of the whole case before this Tribunal for the purpose of persuading this Tribunal either to substitute a different decision or to send the matter back for rehearing by another Tribunal. That is an impossible task and an impermissible request.

It is common ground that a Tribunal may find a decision perverse if no reasonable Tribunal, on a proper self-direction, could have come to the decision. This occurs if a decision is not supported by any evidence or if the decision is contrary to uncontradicted evidence or is simply irrational or absurd. The Appellants have not shown even a prima facie case for establishing perversity on any of these grounds. We do not, therefore, find it necessary to examine each of the grounds of appeal in turn on the perversity point.

For all these reasons, this appeal is dismissed. We shall hear applications in relation to costs and leave to appeal at a later stage, after we have handed down this judgment. We apologise to the parties and their advisers for the delay in handing down this judgment.