Bryant v The Housing Corporation [1997] UKEAT 780_96_2001

EAT
Bryant v The Housing Corporation
[1997] UKEAT 780_96_2001 · 1997-01-20
MR JUSTICE MORISON (PRESIDENT): Although this is a Preliminary Hearing with the consent of both parties, we are going to deal with this as though it were the full hearing of the appeal. The reason why we take the view that that course is sensible is because the decisions appealed against are interlocutory in nature and it would be desirable that the substantive complaint which Mrs Bryant wishes to pursue against The Housing Corporation, her former employers, should be heard and determined as soon as is practicable. By having a further hearing of this matter before another body of the Employment Appeal Tribunal, would simply delay the progress of the substantive complaint.The matter which we have to consider has caused us some difficulty. Mrs Bryant was dismissed by The Housing Corporation, by whom she had been employed, as from 22 October 1995, which was the effective date of termination of her contract of employment. She presented to the Industrial Tribunal an Originating Application. That was received by the Industrial Tribunal on 21 October 1995 and in Box 1 she gave the types of complaint she wanted the Tribunal to decide as:

"A) Unfair Dismissal

B) Unlawful deduction from wages/breach of contract

C) Sex Discrimination"

We are not concerned with Item B. Paragraph 12 of the IT1 Form invites complainants to give details of the complaints which they are making and Mrs Bryant accordingly prepared, apparently on her own behalf, the particulars requested in paragraph 12. The format of her particulars is, we think, of some significance. She gave particulars in the first place of unfair dismissal. That was a document which runs to some six pages. She then gave a detailed calculation of her claim under paragraph B, and then in order to give particulars of her third claim, sex discrimination, put in a typescript set of particulars running to one and a half pages.Mrs Bryant has, in this way, therefore divorced the three matters from each other and, broadly speaking, they do not tie in one with another as part of a piece. The nature of her complaint of sex discrimination is of sexual harassment by her line manager; in particular in relation to an incident in November 1993. But in her complaints she makes it plain that it is her case that her employers sought to stifle her complaint that she had made internally in the company of sexual harassment and was effectively being asked to seek alternative employment, and therefore it was open to her to have alleged that her dismissal arose out of and was part and parcel of, the discrimination which she was undergoing.It is to be noted that there is no reference in any of the three complaints which she was making to Section 4 of the Sex Discrimination Act , which deals with victimisation. When the matter came before the Industrial Tribunal for directions, the Respondents had taken a time limit point in relation to the allegations of sex discrimination. The Industrial Tribunal concluded that time had expired for the making of those complaints. The Tribunal's decision was promulgated on 20 May 1996 and the essence of the decision may be summarised in this way: the act complained of occurred at the latest on 5 July 1994. That is a reference to the fact that on that day the Appellant received what she describes as a "grudging letter" but offering no apology. The incidents giving rise to it, the Tribunal said, happened even earlier. The Applicant did not pursue the matter then for fear of reprisal from the Respondent.The Tribunal is satisfied that the act complained of was not the Applicant's dismissal, nor can it be said that there was a continuing act. They then addressed their minds to the question as to whether it would be just and equitable to extend the time limit and concluded that it was not: choosing as grounds for their decision that the Applicant is a professional woman who can be said to be aware of her rights. Secondly, she was aware of her grievance at the time, and thirdly, the delay in presenting a claim was her decision in the light of her employment position.At the Industrial Tribunal proceedings, the Appellant had been represented by an organisation which describes itself as Employment & Labour Law Consultants Ltd. The name of the representative from that organisation was Mrs Suzanne Kynes-Dobbie. When she appeared before the Industrial Tribunal she spoke to Counsel who was instructed on behalf of The Housing Corporation. She indicated to him that if the Tribunal were to rule that the complaints of sex discrimination in the IT1 could not be pursued because of a time limit problem, she would be inviting the Tribunal to consider the question of victimisation. We infer that she must have had in mind victimisation in this sense that the dismissal was allegedly a consequence of her having made a complaint of unlawful sex discrimination against her employers in the past.If her IT1 did not implicitly contain such a complaint, then what she would have been inviting the Tribunal to do was to amend the IT1, so as to include that complaint. If that application for leave to amend had been made, it would have been made two months out of time. There is a three month time limit for making such complaints. The act complained of on this basis would have been the dismissal, and the application for leave to amend made five months after the dismissal had taken effect.The Industrial Tribunal not having considered the question of victimisation on the first hearing, Mrs Kynes-Dobbie wrote to the Industrial Tribunal the following day and said she would ask the Chairman of the Tribunal to accept that in setting out her unfair dismissal claim and her sex discrimination claim, the Applicant has raised by way of facts and complaints, sufficient grounds to claim relief for victimisation under Section 4(1) of the Sex Discrimination Act and the enclosed schedule refers to these details:
"This matter was raised during the Preliminary Hearing; no ruling was made upon it. Moreover the claim of victimisation is an intrinsic part of the Applicant's reasons for maintaining inter-alia that the reasons for dismissal mask the true reason for the termination of her employment, although nowhere in the pleadings is a claim under Section 4(1) of the Sex Discrimination Act expressly stated. For these reasons we would ask the Chairman to exercise his discretion to amend the Originating Application in accordance with the enclosed schedule."
The schedule which was enclosed contains in paragraph 3 a submission that there would be no injustice to the Respondent if the Tribunal exercised its discretion in favour of the Applicant because:
"i) the Respondent has known of the Applicant's contention that she was unfairly dismissed for bringing a complaint of sexual harassment and not for the reasons stated in the Notice of Appearance"
The Industrial Tribunal Chairman acceded to the request that he should consider the application for leave to amend the IT1, and his decision on that issue is contained in a letter sent to the parties on 19 April 1996. The essence of that decision is that the application was refused and I quote:
"He is satisfied that the matter was not raised at the preliminary hearing,, and no ruling was requested. The case as pleaded reveals no grounds for such a claim. The application is out of time and it is not just or equitable to extend the time limit.

The case will proceed on the basis set out at the hearing of the 21 March 1996."

There is an appeal to the Employment Appeal Tribunal against both decisions of the Industrial Tribunal. The first decision which makes no reference to the victimisation claim and the second decision by which the Chairman refused leave to amend to make such a claim.We have had the benefit of submissions from Counsel on both sides in this case. It was submitted to us, first of all, on behalf of the Appellant, that indeed if one looked carefully at her IT1 and put together the two sections which had become divorced one from another, that it was possible to see that she was in fact making a complaint that she was dismissed, not for the reason given by her employers, but because they wanted her out as a result of her having made a complaint of sex discrimination and harassment. Secondly it was said that we should prefer the Affidavit material that we have been provided with, to show that the Appellant's representative did on the first occasion refer to the complaint of victimisation and to Section 4 of the Sex Discrimination Act 1975 . It was said that in any event even if such a point had not been made to the Industrial Tribunal, the decision of the Industrial Tribunal to refuse leave to amend was wrong in law, in that the Industrial Tribunal Chairman had misdirected himself and had failed to appreciate that the time limit that he was dealing with in the application for leave to amend was different from the time limit which he was concerned with on the previous occasion, and we were asked to over-turn his decision.In relation to the Respondents they submit firstly that the original IT1 did not expressly make plain that there was a complaint of victimisation under Section 4, or make plain that there was any linkage between the dismissal and the complaints of sexual harassment. In support of that, they refer to the letter from Mrs Kynes-Dobbie who, as indicated, recognised that there was nowhere in the pleadings a claim which expressly referred to Section 4(1). Secondly, that we should accept what the Chairman has said about what took place at the first set of proceedings namely, that no reference had been made to a victimisation claim and no express reference to Section 4. We were asked to say that the Chairman's recollection was to be preferred to that of the Appellant's representative. Thirdly, the decision of the Industrial Tribunal given on the second occasion, was a decision with which we should not interfere; it was an Interlocutory decision. It was for the Industrial Tribunal to decide whether any amendment should be permitted or not and we should not lightly over-rule such a decision, being a matter of discretion. Even if it was said we were minded to allow the appeal, then it should go back to the Industrial Tribunal for further consideration of the matter.The difficulty which we have in this case is caused, we think, by the way in which the Applicant has presented her IT1, divorcing and separating out in formal terms the various allegations that she was making. It seems to us that had she put together her IT1 in relation to unfair dismissal and to sex discrimination and simply told the story, it would have become manifestly obvious that there was a question to be asked as to whether there was a linkage between the alleged sex discrimination and the dismissal. There were events which she was alleging occurred, which suggested that the employers had wanted her out because she had made such a complaint. Accordingly, even though the words setting out the necessary causative link between the making of the complaint of discrimination and the dismissal were absent from the IT1, bearing in mind that this was an applicant who was representing herself, we have no doubt that if in those circumstances the question had arisen as to whether the Tribunal should entertain her claim of victimisation, any Tribunal would have concluded that it should.It seems to us that the second difficulty with which we have been confronted is caused by what can only be considered to be the incompetence of the representative of the Appellant. If it was the representative's intention to raise a complaint of victimisation, then she should have done so in terms which were plain, so that the Chairman dealt with it. If it became apparent that despite her submission the Chairman of the Tribunal had not understood that she was making such a contention, then it was her duty to make sure that the contention was properly before the Tribunal before she moved on to other submissions. It seems to us extremely regrettable that on the first occasion the representative of the Appellant did not have in her hand a suggested amendment to the IT1 so as to make the linkage between the dismissal and the discriminatory conduct abundantly clear. Furthermore, it seems to us that having let the matter slip, it was not satisfactory that the Chairman should be invited to deal with the application for leave to amend in the way in which it was then dealt with. It seems to us that this was a matter which required proper argumentation to inform the Chairman of the reasons why, it would appear on analysis, that there was implicit in the IT1 a linkage between the dismissal and the sex discrimination, and even if that were not so, that it was a case which obviously required to be heard and determined since there was a considerable overlap between the two matters and it would not do justice to the parties to examine the unfair dismissal complaint without also dealing with what she thought was the reason why she had been dismissed.It is not at all surprising in the light of that incompetence, that the Industrial Tribunal Chairman should, as in our judgment he has, erred in law in arriving at his second decision. It seems to us that because he was not presented with the analysis which was plainly required of any competent adviser, he concluded that the case as pleaded revealed no grounds for such a claim. On the contrary, it seems to us that on careful analysis the case as pleaded did reveal some grounds for such a claim. Again, when he says that the application is out of time, he ought to have had his attention drawn to the difference between the time limit provisions in relation to the allegations of sex discrimination in the IT1 on the one hand, and the time limit that he was concerned with in relation to a victimisation claim, where the act complained of was the dismissal, on the other.In the latter case it was, as we have indicated, a period of some two months and no more. Accordingly, it seems to us, that the learned Chairman was wrong when he sought simply to apply the same just and equitable reasons that he had previously given for refusing to extend the time limit to the circumstances with which he was then faced. Therefore, it seems to us, we are in a position where through those two matters in particular, the Tribunal has erred in law.We are of the view that the appeal should be allowed. That the Appellant should be permitted to amend her IT1, so as to plead, expressly, that her dismissal was by reason of her having made a complaint of sexual harassment against her line manager. We would allow that amendment to be made. We do not accede to Mr Birtles' submission that it would be appropriate to send the matter back to an Industrial Tribunal. We have arrived at the conclusion that, in the circumstances, it would be wholly unjust not to allow the Tribunal to investigate the true reason for the dismissal, and it seems to us that she is entitled to maintain that the reason for her dismissal was by reason of sex discrimination in general terms.We have arrived at this decision with some reluctance we should add, because it seems to us from the employer's point of view, that they have themselves been, to some extent, the victims of the incompetence with which Mrs Bryant had hitherto been represented. It is through no fault of theirs, as it seems to us, that the Industrial Tribunal ruled as they did. It was perfectly proper for them to raise the time limit point and to invite the Tribunal to exclude the complaints of sex discrimination, as they did. But it seems to us that that should have provoked a proper and thorough debate on the question as to whether it was being alleged that the dismissal was attributable to her complaint of sex discrimination. That was a matter which we believe should be investigated by the industrial Tribunal and accordingly we do not think any purpose would be served by remitting the matter back to the Industrial Tribunal for their consideration.We express the hope that this difficult matter will be listed and dealt with in a speedy way as one can normally rely upon the Industrial Tribunal in this region to do.Finally, we should draw attention to the fact that in the previous order made by this Tribunal, it was ordered that the Chairman's Notes of Evidence be called for if the matter proceeds to a full hearing of the Employment Appeal Tribunal. That direction has been overtaken by events; very sensibly neither Counsel has pressed upon us that there would need to be Notes to enable us to adjudicate on the matter. We make it plain that the Chairman's recollection is to be preferred to that of the Applicant's representative. We do not think that the victimisation case was ever advanced on the first occasion and the Notes of Evidence would not have been of assistance, accordingly.