Barrow v Thameslink Healthcare Services NHS Trust [1998] UKEAT 1232_98_3011

EAT

Barrow v Thameslink Healthcare Services NHS Trust

[1998] UKEAT 1232_98_3011 · 1998-11-30

JUDGE J. ALTMAN: This is an appeal from a decision of the Employment Tribunal held at Ashford, Kent on 7 September 1998. The decision was to not permit the bringing of a complaint of sexual discrimination outside the 3 month time limit. This matter has come before us by way of preliminary hearing to consider whether there is a reasonably arguable point of law such as to give the Employment Appeal Tribunal jurisdiction to entertain and determine the appeal at a full hearing.

Mr Camp has argued the matter before us, fully and helpfully on a number of grounds set out in the Notice of Appeal. Briefly the Applicant was employed by the Respondents and on 3 October 1997 began a period of sickness absence. On 24 February 1998, she resigned from that employment, but claims that this constituted a dismissal, which was a resignation in form only, so as to amount to constructive dismissal. On 3 March, she instituted a claim for unfair dismissal and breach of contract, relating in large part to the fact that she was not permitted to take part in what is called the networking function which she would normally have expected, she says, to have had to undertake as part of her employment.

On 25 June 1998 a complaint of sexual discrimination was added to the original complaint and this was accompanied by a letter dated 25 June to the Industrial Tribunal as it then was, which is at page 24 of our bundle, saying that the Applicant had been advised that her claim did not make it clear that there was sexual discrimination in relation to the failure to honour the networking aspect of her post. She first apologised for not making it clear in her original submission and asserted that the fact that she was female was a major factor in her not being allowed a networking role and secondly dealt with other matters.

The Applicant then on 24 July, wrote a letter containing essentially what were the particulars of her complaint. She alleged in the second paragraph that the sexual discrimination was constant from the date of employment to the date she left, and in paragraph 3, related the sexual discrimination to her not being allowed to have a network support role. She alleged that Mr Laning had said that that was his domain and that she would not be involved contrary, she said, to her job description. In the last paragraph of that page she goes on to say that at one time there were two students in placement, one female and one male, but Mr Laning had remarked that he would never have females in his department again, they were too much trouble. She then goes on to point out the engagement and recruitment of a male and his replacement by another male and that further students were all male, that the Estates Informations/Telecoms/ Network service is male dominated, that only secretaries are women, and finally she contends that networking was perceived by various members of management, whom she names, as a male orientated job that women had no part in.

Whilst there had been in the Originating Application detailed allegations about her complaint of not being involved in networking, the facts upon which that is asserted to be sexual discrimination were of course raised for the first time in that letter.

It is unnecessary for us to repeat the findings of the Industrial Tribunal but the dates to which I have referred are clearly relevant. In their decision, the Employment Tribunal assert that the application for sexual discrimination was seven months out of time. That appears to be an error, but it is obviously of no significance because the actual dates, in reality, were being addressed by the Tribunal. In the Notice of Appeal the complaint is that at best the period was only four months after the time. In fact the relevant dates are 3 October 1997 on that particular argument and the 25 June 1998, which makes the period about five and three quarter months out of time.

Mr Camp on behalf of the Appellant does not ask us to really do anything more than take that particular factor into account overall. It is clear to us that the Tribunal were looking at the genuine periods. It may be that simply as a matter of a wording they made a simple error in saying that it was seven months out of time rather than it was not made for seven months and was therefore a period of four months out time which is what Mr Camp would have wished, but there is no arguable point of merit it seems to us on that slip.

However, a more substantial point was made by Mr Camp, namely that the Tribunal found that the matters of complaint constituted a continuing act of discrimination and he argues that therefore it must follow as a matter of law that it continued until 24 February 1998, because whilst the Applicant was off ill, if it was a continuing act, it must have continued during the period of her sickness and he has helpfully referred us to the case of Cast -v- Croydon College

[1998] ICR 500

and he directed our attention particularly to page 509 between letters D and F. The way the Employment Tribunal in the appeal before us dealt with the matter is as follows.

"We have derived from the authorities the principle that a succession of specific instances can indicate the existence of a practice which in turn can constitute a continuing act. Whether in fact this was the case, could only be decided at a full hearing, but we consider that we have to give the Applicant the benefit of the doubt at this stage, and we are prepared to find that her complaint about the networking aspect of her employment is a complaint about an act extending over a period. That period must have come to an end however, on 3 October 1997. Any discriminatory practice cannot have been aimed at the Applicant after that date since she no longer worked for the Respondent after that date."

Even if Mr Camp is correct, the complaint is still out of time, but by almost exactly one rather than over five months. We accept that Company policy is regarded as having a discriminatory impact on employees during the course of their employment insofar as that policy is directed at them, as Mr Camp has said. This aspect of the appeal has caused us some concern. Although it is true, as the learned Chairman says, that the Applicant did not "work" after going on sick, the lines in fact, between continuing to turn in every day at work and continuing to be bound by a contract of employment during sickness absence, are to some extent blurred and unclear in practice. It may well be that there could be some argument that the sort of matters of which complaint were made should be regarded as continuing during the period of sickness absence because they were a continuing act. It has been said to us that there was evidence before the Industrial Tribunal in which the Applicant asserted in evidence that it was a matter of policy that she would not have a networking role, and that that was her case. Mr Camp complains that the Tribunal did not set out in terms what they found to be the continuing act and to an extent we sympathise with that argument. However, we have looked at the substance of the complaint which is essentially that contained in the letter of 24 July, it was of a number of instances alleged to have taken place of actual discrimination and evidence of other discrimination intended, we suppose, to be corroborative of the argument of the general approach. The argument in law, it seems to us, is not conclusive either way as to whether a particular continuing act in a particular case is one that can operate whilst an employee is sick but still subject to a contract of employment. It seems to us essentially to be one of fact in the particular case. Viewing this case overall the Tribunal were clearly directing their attention to the actual evidence that was before them, and they came to a finding as to the relevant periods about which it cannot be said that it was so wrong as to flaw the exercise of their discretion.

I have dealt already with the question of mathematics which was also therefore in ground two of the Notice of Appeal. I come now to ground three of the Notice of Appeal, in which it is said that the Employment Tribunal failed to take into account the fact that the complaint of sex discrimination arises out of facts that form part of the Appellant's existing claim for unfair constructive dismissal. The way in which Mr Camp put it before us was that this is a relevant matter for the exercise of discretion, because if an Applicant can say, "well look, it makes no practical difference, it is just because all the evidence and all the facts are there before the employers, it is just that we are giving it a different description" or as Mr Camp would say, putting a different tag on it, that is a very different position, from a situation where a completely new set of facts has suddenly been presented to Respondent employers a long time later so that they would have the difficulty of trying to unravel what had happened in the past in order to meet the claim.

We have considered the way in which this matter was dealt with by the Employment Tribunal. Reference to paragraph 5 was made in which it was shown that it was recognised that a new claim would now be out of time and in paragraph 8 the Tribunal said that they were not "impressed" by Mr Camp's submission, but that the matter is set out in the Originating Application presented on 3 March. They go on to say this:

"They are not set out as a complaint of sexual discrimination. They are simply complaints that the Applicant was badly treated by certain individuals in the Respondent's organisation, female as well as male."

Now, it seems to us that the Tribunal is not saying that the complaints are simply being given a different label. The proposition that they arise out of the same facts is only partly correct, because as I have already indicated we have found that the actual particulars of sexual discrimination contained many facts which were not contained in the original Notice of Appearance and it seems to us that that is the way in which the Tribunal dealt with the matter. They did not say that it is irrelevant, they did not say that they had taken no notice of the argument, they simply said that the facts were not set out as a complaint of discrimination but simply of bad treatment, and therefore they were not "impressed". That simply means that Mr Camp's argument failed on that point and there were clear grounds for it so to do as I have already illustrated.

It is then suggested that the Tribunal came to the conclusion that the Applicant had not been badly advised about time limits when she originally went to the Citizens Advice Bureau so as to justify a delay in making the Originating Application. They carefully set out their findings. Mr Camp says that that is really an ambiguity, not a contradiction set out in paragraph 9. We disagree. On the face of it, it seems to us the Tribunal were perfectly entitled to conclude that it was a contradiction and to have come to the conclusion that they could not be satisfied that the Applicant had been badly advised. Mr Camp complains that if the Tribunal were going to find a contradiction that goes to credit and therefore the Tribunal should, as it were, of its own motion have invited the Applicant to deal with this matter. The parties were both legally represented before the Tribunal and it cannot be argued that it was the job of the Tribunal to start investigating or asking questions. The evidence was presented to them and they were entitled to make their findings upon it, which they did and there was abundant evidence before them from which they could come to the conclusion that they were not satisfied that the Applicant was badly advised.

Mr Camp then finally put the matter the other way round and said that the Tribunal failed to take into account the fact that the Applicant was not properly advised in relation to a complaint of sex discrimination. Again there is a clear finding of fact by the Tribunal on that very point to which I have already referred. Mr Camp disagrees or asks us to disagree with that finding of fact, and that is not the function of the Employment Appeal Tribunal.

The Employment Tribunal dealt in their decision with the issues which arise for consideration when they exercised their discretion as to whether or not to extend the time. It should be remembered that the rules are couched in a way that can make a complaint out time and they specifically state that a complaint cannot be brought if it arises more than three months before the institution of proceedings. There is then a residuary discretion in the Tribunal to allow a complaint notwithstanding the expiry of the time limit. It seems to us that there is no material before us which would entitle us to say that the exercise of discretion in this case was so far outside the range of discretion which a Tribunal could reasonably exercise or was so remote from the facts before it, as to entitle us to interfere. However persuasive the arguments of Mr Camp we find that the Tribunal, in a carefully worded decision, exercised its discretion in a way which the Employment Appeal Tribunal could not find erred in law in any way in which the Employment Appeal Tribunal would interfere. Accordingly we are driven to dismiss the appeal at this preliminary stage.