South Tyneside Metropolitan Borough Council v Fokias & Anor [1998] UKEAT 15_98_0403

EAT
South Tyneside Metropolitan Borough Council v Fokias & Anor
[1998] UKEAT 15_98_0403 · 1998-03-04
MR JUSTICE MORISON (PRESIDENT) : This is an interlocutory appeal. It is an appeal against a decision of an Industrial Tribunal Chairman who made a number of directions on 17th November 1997. His decision is recorded in writing. Although the reasons he gives are not expressed to be extended reasons, we are happy to deal with this appeal, because the reasons which have been given are sufficiently clear and extensive for us to be able to understand precisely why the Industrial Tribunal Chairman made the contentious order that he did.Part of the directions he gave which is in contention is that the applicant, Ms Fokias, who is the respondent to this appeal, should be given leave to reinstate her claim of victimisation in proceedings which have been brought against three named respondents, a Head Teacher, a Board of Governors of a School which is concerned teaching those with learning and behavioural difficulties (in respect of whom all the pupils are, as I understand it, statemented) and South Tyneside Metropolitan Borough Council, who by virtue of statutory regulations find themselves in the unenviable position of having to pay any award of compensation that may be made, although they themselves may not have borne direct responsibility for the matters giving rise to Ms Fokias' complaints.The circumstances in which this appeal comes before us may be shortly summarised. Ms Fokias is a teacher working at the School and there was a pupil at the School who was male who was causing her difficulty in the sense that, she says, he was sexually harassing her. She presented a complaint to an Industrial Tribunal complaining of sex discrimination and/or victimisation, and underneath that she had written "Employers exposed me to risks of a sexual nature and failed to act"; and in the body of her complaint, she said this:
"The employers exposed me to risks of a sexual nature and failed to act when I made complaint. The employers failed to exercise their duty of care; because of this failure to act I made comment in a staff meeting on the failure and this comment resulted in me being disciplined by my employer. There may be further complaints but employers have failed to respond to S.D. 74 [ Sex Discrimination Act 1975 ] questionnaire submitted on 6th January 1997."
The Authority and the other respondents, not surprisingly, asked for further and better particulars of the complaint which was being made, and sought to ascertain on what basis it was being suggested that Ms Fokias had a viable claim for victimisation.In response to the request, in June 1997 Ms Fokias' union representative set out the substance of alleged less favourable treatment about which she was complaining in four paragraphs:
"That Mrs Fokias was subject to direct discrimination when she was sexually harassed by a male pupil during the months of October and November 1996. The senior pupil concerned on a number of different occasions during this period would brush against Mrs Fokias, touch her bottom with his hand or his body. He would stand directly in front of Mrs Fokias and moving extremely close would wave his hands in front of her face and say 'Smile Miss, big smile'. He would move very close to Mrs Fokias and blow in her ear and say 'hello' again asking her to smile. He would follow her around the school yard during 'break time'.
She complained to the senior management of the school on three separate occasions. Mr Palmer did not make any response to these complaints. When on the 14th November, 1996, a staff briefing the misbehaviour of Richard Johnson was being discussed Mrs Fokias made comment that she had raised the issues of being sexually harassed by the same pupil but had had no supportive response from the school management."The last two paragraphs of this story read as follows:
"Mrs Fokias made a further comment that if the harassment continued she would feel obliged to slap the boy's face as she would any other man who continually sexually harassed her.
Because of this statement Mr. Palmer brought disciplinary proceedings against Mrs. Fokias. She received an oral warning. This was upheld on appeal to the governing body. The behaviour of the boy towards Mrs. Fokias on the day the appeal was upheld continued to go unpunished."She then described as the detriment which she sustained as a result of the discrimination the fact that her health was adversely affected, as was her effectiveness as a classroom teached undermined. She was saying that the pupil's behaviour to which she was subjected was sexually motivated and was not behaviour to which a man would be vulnerable. When asked the question as to the material provisions of the Sex Discrimination Act 1975 on which reliance was placed in the way in which the case was put, her representative referred back to the four paragraph history and stated:

"The applicant is not complaining of victimisation."

The matter then proceeded towards a hearing date. The union representative who had provided those further and better particulars (it is suggested that Ms Fokias was unaware of what he was saying on her behalf) fell ill and the matter was then taken over by solicitors. They immediately appreciated that an application should be made to the tribunal to continue the claim based on victimisation. The way it is put is that as a result of her having done a protected act, namely complained about sexual harassment at work, she was disciplined by the employers in circumstances where, had she not done the protected act, she would not have been disciplined. That is the claim for victimisation and it is separate and distinct as Mr Cape has very properly submitted to us, from her other complaint of discrimination. She says also that she was discriminated against on the grounds of sex in the traditional sense by being disciplined and she relies, as we understand it, on matters which show that other males members of staff may have said similar things which had not led to them being disciplined.The matter came on for hearing before the Industrial Tribunal pursuant to an application which was made to the tribunal under Rule 4, and the tribunal Chairman, as I have indicated, permitted the claim for victimisation to be included amongst the matters relied upon the complainant.The basis for his decision is clearly and succinctly set out in the reasons to which I have referred. He said in paragraph 3:
"3 ... I am satisfied that the claim of victimisation arises out of the same set of facts as the rest of the claim of sexual discrimination brought in this matter. It was raised in the Originating Application and then later withdrawn. ..."
Mr Cape says that on analysis the claim of victimisation does not arise out of the same set of facts if one construes carefully the further and better particulars which had been provided in July.We understand his submission and see the force of it, but are not persuaded that it is a fair way of looking at what happened in July. It is and always has been her case that there is a story which she wishes to tell to the Industrial Tribunal which includes within it a complaint that she has wrongly been disciplined for something that was said in the staff room in circumstances which shows that she was, in some way or another, being picked on, either by reason of her sex or by reason of the fact that she had done a protected act. Accordingly, we do not accept that criticism made of the finding in paragraph 3.The Chairman then continued in paragraph 4:
"4 In the interests of justice I do not consider that the applicant should be prevented from reinstating this aspect of her claim. It is a question of correctly labelling and pleading the claim, I am not satisfied that in allowing the applicant to so amend the respondents will be unable to meet the claims or prepare their own cases. ..."
As to that, Mr Cape submits that whilst the tribunal was correct to have regard to the interests of justice, he submitted that for the same reasons as he challenged what was said a paragraph 3, this was not just a question of correctly labelling and pleading the claim, but the effect of adding a claim for victimisation is to open the door to a whole series of allegations about what has happened when other members of staff have made other remarks in the staffroom and, on one occasion, when a member of staff is alleged to have struck one of the pupils. He says that this has converted a three day case into a nine day case and that is a significant prejudice to the respondents.We are sympathetic to the contention that the door has been opened much more widely. It seems to us that that is certainly true. We have read yet further particulars which have been provided by way of supplementary particulars provided in December. It seems to us that the Industrial Tribunal might well think it appropriate, having regard to the state of the various allegations, to invite the parties to a directions hearing, at which directions can be given for the orderly trial and disposal of these complaints.It occurred to us during the course of the parties' helpful submissions, that there may be room for the parties to agree quite a lot of matters between them. As we understand it, it is the employer's case that the only reason why the applicant was disciplined for saying what she did, was because they were satisfied that what she said amounted to a threat to commit an unlawful act, namely, to strike a pupil by way of discipline. As we understand it, Ms Fokias would be likely to accept that it would be unlawful for a teacher to strike a pupil by way of discipline, and it may well be that she would also accept that if she had threatened to strike a pupil by way of discipline, and if that had been the reason why she was disciplined, she would have no complaint about being disciplined. If that were the position, it may well be that the employers would also for their part accept that if she had said something which was not to be taken as a threat to do an unlawful act, they themselves would not have regarded it as a matter for discipline; that if somebody had made a remark in the staffroom threatening, possibly at the extreme, to kill one of the pupils in the school no disciplinary action would have followed. The employers may well accept that the staffroom is a place for the exchange of badinage, for the letting off of steam of those who are working in stressful circumstances, and people are entitled to make, without threat of discipline, wild or extreme threats and imprecations against the pupils who have been irritating them during the course of their work.If the employers were able for their part to indicate that that was the position, then the Industrial Tribunal would readily perceive that the case in question is in a much narrower compass than might at first appear. Furthermore, the Industrial Tribunal might think it appropriate in this case, in particular, to require the parties, since they both enjoy the advantage, if that is what it is, of legal representation, to make and prepare in advance, and exchange, witness statements of those witnesses who are to give evidence. And if the tribunal were to have time before the hearing commenced to read the witness statements, it may be that they could then take those statements of evidence as read and move quickly to the stage of cross-examination. In such a way, it may well be possible for the Industrial Tribunal to envisage a hearing which is going to be substantially less than the nine days which the parties presently estimate.We are not ordering the Industrial Tribunal to take any particular step, but we do. respectfully, invite them to consider how they may best proceed in the interests of justice. This case is not to be an occasion for the washing of dirty linen in public, or for the pursuit of any individual grievance by any individual against any other individual. It is a case which involves sensitivities, as there are young people involved, and their behaviour may or may not become of relevance to the issues before the Industrial Tribunal. All steps should be taken to try and limit, as it seems to us, the ambit of enquiry so as to make sure that it is only those matters which are relevant and probative which have to aired in public in the tribunal room.Accordingly, we are quite satisfied that the learned Chairman has approached the exercise of his discretion entirely correctly. We think that there are steps that can now be taken. We invite the Industrial Tribunal to consider the question of a directions hearing so as to make sure that this case takes place in an orderly way and within a short timescale.