Stanger v Nottinghamshire County Council [1997] UKEAT 910_97_2411

EAT
Stanger v Nottinghamshire County Council
[1997] UKEAT 910_97_2411 · 1997-11-24
MR JUSTICE LINDSAY : We have before us ex-parte as a matter of a preliminary hearing an appeal by Mr W.I. Stanger against his employers, Nottinghamshire County Council.There was a one-day hearing on 30 May 1997 at Nottingham, under the chairmanship of Mr D.R. Sneath, where the Industrial Tribunal came to a decision which was promulgated on 18 June 1997 and the first paragraph of the decision, which was unanimous, was that the Tribunal had no jurisdiction to entertain Mr Stanger's complaint.It is necessary to give a brief procedural history to the matter. On 17 February 1996 Mr Stanger presented an IT1, an Originating Application, alleging harassment on behalf of his employer. On 6 March 1996 the Industrial Tribunal made an Order that he should supply particulars of that charge by 21 March 1996 but he did not do so and on 19 April 1996 the Industrial Tribunal had a hearing and struck out that Originating Application, the IT1, that decision being promulgated on 25 April 1996.On 12 March 1997 the Industrial Tribunal received a new Originating Application, an IT1, claiming breach of contract and the Office approached Mr Stanger and indicated that particulars would be needed, but particulars were not supplied. Instead, Mr Stanger completed a new IT1 crossing out "Breach of Contract" and instead saying "Disability Discrimination".Mr Stanger, unhappily, suffers from epilepsy. It is, in part, stress related and the more stress there is the more likely it is that he has attacks, and, indeed, it is the sad position, which he has explained to us this morning, that recently attacks have increased to be as common as once a month or so, which is greater than had been the case in the past. It might, indeed, be the case that the very existence of the proceedings is itself contributory to his disability. That, though, is by the by. The position is that in his IT1, his Disability Discrimination complaint, he gives details for everything and gives dates for everything except a last paragraph was added that said this:
"Monitoring of work was not appropriately communicated. There was inhibiting behaviour by management and my disability was not appropriately considered as well as many elements of poor management."
Well, hardly surprisingly, given the very broad language there used, a preliminary point was directed to be heard and on 30 May the hearing took place, as I mentioned, and on 18 June there was the decision of the Industrial Tribunal which I have mentioned. On 23 June Mr Stanger lodged his Notice of Appeal. He has appeared in person throughout.The great difficulty that Mr Stanger is faced with is that the Disability Discrimination Act 1995 was only enacted on 8 November 1995 and by Section 70(3) of that Act its general provisions were to come into effect by way of the Secretary of State appointing particular dates for their commencement. Sections 4 and 5 of the Act, which are the sections on which Mr Stanger would need, principally, to rely, were not brought into effect at any date earlier than 2 December 1996. Not all of the subsections were, even then, brought into effect, but no part of Sections 4 and 5 came into effect before 2 December 1996. Moreover, there is nothing retrospective about the Act so that if some matter of a kind that can now be complained of under the Act plainly took place before the Act came into effect then there is nothing that can be done about it.The enforcement provisions of Section 8 of the Act similarly have nothing retrospective about them and came into effect only after 2 December 1996. It is a feature of the Act, (and similar provisions are found in sex discrimination cases and racial discrimination cases) that the complaint has to be made within three months after the act complained of: see Schedule 3 Part 1, paragraph 3(1). There is a discretion to extend the period - see paragraph 3(2) - and there is a particular provision in paragraph 3(3) whereby one looks to the end of a period where something occurs over a period.With those considerations in mind, one then has to turn to Mr Stanger's complaint to see what dates could be put to the acts complained of. True it is that, in point of language, his complaint (looking at boxes 8 and 9 on page 14) is that matters run to the present. Box 9 says:
"If your complaint is not about dismissal, [and, of course, it was not, because Mr Stanger is even now employed by the Council] please give the date when the action you are complaining about took place (or the date when you first knew about it)."
And his completion there says:

"August 1993 to the Present."

So, on the face of things, one has a complaint that runs up to the present but it is fair to say that the employers (looking at page 18 of their IT3), reserved the right to ask for full particulars of the grounds on which the application was to be made. At the hearing itself, it is obvious from the way the matter was conducted that Mr Stanger was asked to provide more detail of the dates and periods in respect of which his complaint was made. It would have been unfair to the employer to leave matters as vague as Mr Stanger's IT1 had left it.At the hearing before the Industrial Tribunal evidence was given (looking at paragraph 8 on page 6):
"The applicant suffers from epilepsy. His condition is aggravated by stress. Currently he says that he is suffering from stress related tinnitus as well. He has been encouraged by the respondent to forget his complaints but there does not appear to be anything about that advice which he characterised as victimisation."
And now comes the important sentence:
"He complains, however, that, merely by sending the letter of 30 December 1996, the respondent was harassing him. He relies on that letter because the Disability Discrimination Act 1995 only came into force on 2 December 1996. Its effect is not retrospective. His real complaints relate to events prior to that date."
So that Mr Stanger, having been asked to provide dates in relation to the acts complained of at the hearing before the Tribunal, nails his colours to one particular mast, namely the sending of the letter of 30 December 1996 and one can see that he had to find some date after 2 December 1996 if his complaint was to go forward.In his Notice of Appeal Mr Stanger identifies paragraph 8 (from which I have just cited) as being correct. So that his complaint was indeed based on the letter of 30 December 1996. As to that the Tribunal find in their paragraph 11:
"We can see nothing in the letter of 30 December 1996 which can be construed as less favourable treatment. Nor is there anything in it which can be said to relate to the applicant's disability."
We have asked for, and Mr Stanger has kindly provided, the letter of 30 December 1996 which was not earlier in our papers and we find nothing in it that suggests that the Industrial Tribunal got its assessment of the letter wrong.So the position is that, the Industrial Tribunal, looking to find some relevant complaint after the Act came into force, asked Mr Stanger on the point and he directed them to the letter of 30 December 1996. They find nothing discriminatory in that letter. What they say is:
"This application appears to be nothing more than a continuation of that dispute [the earlier dispute] by other means. Thus, there is no complaint of disability discrimination before us relating to events on or after 2 December 1996."
The Tribunal go on to say that they thought that the application was frivolous. We do not need to go into that but Mr Stanger has a real difficulty. He has to show us that there is some real practical likelihood that the Industrial Tribunal erred in law in the conclusions that they came to, namely that he was relying on the letter of 30 December 1996 and that the letter of 30 December 1996 did not assist him.The Industrial Tribunal obviously had the letter in front of them and at page 5, paragraph 7 they recite its effect as follows:
"They include a letter dated 30 December 1996 in which the head of personnel told the applicant that the formal written warning had by then been reviewed and was to be regarded by everyone as spent. The letter recorded that there had been no recurrences of the conduct which led to the issue of the warning and that the applicant's work performance since that time had been satisfactory."
That seems to be an adequate summary of the letter. We have looked at the Act. Like the Industrial Tribunal we find ourselves unable to find any discrimination against Mr Stanger, as a disabled person, of such a kind that complaint could have been made under the Act, given that the Act came into force as late as it did and given that he was relying on the letter of 30 December 1996 as the chief complaint that he raised.Accordingly, we find no error of law. To some extent that the matter should go no further cannot be described as unsatisfactory. Mr Stanger's present stress and the attacks of epilepsy and their frequency are, of course, related to one another and, in dismissing his appeal, we recognise that sympathy is to be extended to his position but also, we very much hope (and there is some ground for this hope) that when the stress of proceedings has departed, well then so also might, to some extent, the epilepsy which is stress related.So, not only do we find no point of law to enable the matter to go forward, but there is a practical reason, in addition, why the matter should, perhaps, now be laid to rest. We dismiss the appeal.