Pearce v Mayfield Secondary School [1998] UKEAT 947_97_2610

EAT
Pearce v Mayfield Secondary School
[1998] UKEAT 947_97_2610 · 1998-06-24

JUDGE PETER CLARK :

This is an appeal by Ms Shirley Pearce ['the applicant'] against a decision of a Chairman (Mr R H Trickey) sitting alone at the Southampton Industrial Tribunal on 4th June 1997, dismissing her complaint of sex discrimination brought against her former employer, the Governing Body of Mayfield Secondary School ['the respondent'] on the grounds that it was out of time and that it would not be just and equitable to extend time. Sex Discrimination Act 1975 s. 76(1) and (5). The Chairman's reserved decision with extended reasons was promulgated on 8th July 1997.

Chairman sitting alone to hear a preliminary issue

It is quite clear that under rule 6(1) and 13(8) of the Industrial Tribunal Rules of Procedure 1993 a tribunal may hear and determine a preliminary issue relating to the entitlement of a party of bring proceedings, and that such a determination may be made by a Chairman sitting alone even where there is a conflict of evidence to be resolved. Tsangacos v Amalgamated Chemicals Ltd [1997] IRLR 4 ; to be preferred to the earlier case of Mobbs v Nuclear Electric PLC [1996] IRLR 536 .It follows that the tribunal was legitimately constituted in this case, and the question of limitation may properly fall to be considered under the rule 6(1) procedure. That said, we draw attention to the following recent observations by the appellate courts, with which we respectfully agree;(1) the question as to whether it is just and equitable to extend time for the making of the discrimination complaint is an example of a case where the industrial jury's input may be crucial. Sutcliffe v Big C's Marine [1998] IRLR 428 , paragraph 18, per Morison P.(2) In general the presumption must be that parties are entitled to have the whole of their case heard and determined at the same time. Ibid , paragraph 19.(3) Employment Tribunals should be discouraged from trying to identify preliminary points of law in cases in which the facts are in dispute and when it is far from clear what facts will ultimately be found by the tribunal and what facts should be assumed to be necessary to form the basis of the proposed point of law. Smith v Gardner Merchant Ltd [1998] IRLR 511 , paragraph 5, per Ward LJ.

The Complaint

The applicant was employed as a science teacher at the Mayfield School from 1975 until her retirement on grounds of ill-health on 16th May 1996. She is a lesbian. The nature of her complaint is that over a period of years she was subjected to persistent harassment by pupils, mainly by verbal abuse, but also, on occasions, physical abuse, which was directed to her sexuality. She contends that she reported most of these incidents to the school's management, but received no support. Eventually she went off sick due to stress on 17th May 1995 and did not return to work before her application for ill-health retirement, made in December 1995, was accepted on 30th April 1996, leading to her finally leaving the employment on 16th May 1996. She presented her Originating Application to the Employment Tribunal on 19th March 1997.By their Notice of Appearance the respondent took the point that the complaint was time-barred; contended that discrimination on the grounds of sexuality was not discrimination on the grounds of sex within the meaning of the 1975 Act and denied the factual basis for discrimination, whether on the ground of the applicant's sex or sexuality.By an amendment the respondent gave fuller particulars of their case on the facts. In particular, they denied that the applicant was subjected innumerable incidents of harassment by pupils; denied that the school was liable to such incidents as were alleged to have occurred outside school hours, and denied that such incidents as were reported to senior staff were not effectively dealt with.

Tribunal Hearing

Given the substantial factual issues raised by the pleadings it was for the Chairman to decide how the preliminary issue as to limitation was to be determined. Ms Drew, Counsel for the applicant, proceeded on the basis that for the purposes of the preliminary issue the allegations made by the applicant in her Originating Application should be assumed to be true. In these circumstances she did not call evidence, but relied upon the contents of the Originating Application and submissions, both oral and in writing. It is her case before us that she offered the applicant for cross-examination, but the offer was not taken up. The respondent called Ms Mary Millard, the school's deputy head teacher, to give evidence before the tribunal.

The Tribunal decision

It was common ground that the Originating Application was presented outside the ordinary three month time limit provided for in s. 76(1) of the 1975 Act, the latest date on which time began running being the termination of employment on 16th May 1996.As to the question whether it was just and equitable to extend time the Chairman identified the following principal factors falling for consideration:(a) the extent of the delay;(b) the reason for the delay including steps, if any, taken by the applicant, the nature of any advice and any developments in the law;(c) the effect on the parties of a decision either way.He then proceeded to deal with each of those headings before arriving at his conclusion that it would not be just and equitable to extend time. We shall return to the Chairman's analysis of these factors in the context of this appeal later in this judgment.

The powers of the Appeal Tribunal

It is axiomatic that our jurisdiction to interfere with Employment Tribunal decisions is limited to correcting errors of law. Industrial Tribunals Act 1996 . S. 21(1). In approaching this particular appeal we bear in mind the words of Phillips J. in delivering the judgment of Employment Appeal Tribunal in Hutchison v Westward Television Ltd [1977] IRLR 69 , paragraph 11:
"The third thing we have to say about s. 76(5) is this. Because it is such a wide discretion conferred upon an Industrial Tribunal, the task which an appellant has in such a case is a heavy one. Really he must show, if he is to succeed upon appeal, that the Industrial Tribunal demonstrably took a wrong approach to the matter, or that it took into account facts which it ought not have done, or that it failed to take into account facts which it should have done, or, as a last resort which is always open upon an appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed Tribunal could have reached it."

The Appeal

The first point taken by Ms Drew in this appeal is that the Chairman took a wrong approach to the factual basis for the determination of the preliminary issue. If he was to make findings of fact material to his determination evidence should be heard on both sides. To that, Mr Kane responds that Ms Drew had the opportunity to call the applicant but chose not to do so; she cannot now complain having made that decision. We shall return to the factual basis for the Chairman's decision when considering the further grounds of appeal.The extent of the delay :Ms Drew submits that the Chairman fell into error both as to the factual basis on which he approached this question and in his application of the law. As to the factual basis, she returns to her first point. The applicant alleged in her Originating Application that she had complained of acts of harassment by pupils to senior management, but there was no evidence that action would be taken to prevent further harassment. She informed her trade union Regional Officer on 1st July 1995 that she felt unable to return to work in September as a result of the repeated abuse and her lack of confidence in senior management. In these circumstances it was submitted on her behalf that management's failure to take effective action amounted to a policy or practice which meant that there was a continuing act of discrimination until termination of employment on 16th May 1996.The Chairman, however, appears to have accepted the evidence of Ms Millard that all reported incidents were investigated. He put the matter this way in paragraph 12 of the reasons:
"I cannot see any shred of evidence to suggest that there was a continuing failure by the Respondent exposing the Applicant to a risk after June 1995."
In our judgment this exemplifies the danger of determining a preliminary issue without first hearing the relevant evidence on both sides and making clear findings of fact. The Chairman was referred to and considered the Employment Appeal Tribunal cases of Ford Motor Co. Ltd. v Shah (EAT/530/05. Unreported. 18th December 1995. Mummery J. presiding) and Littlewoods v Traynor [1993] IRLR 154 , for the propositions, respectively, that an act of discrimination may extend over a period after the original act of discrimination if, during that period, the employers have failed to implement remedial measures fully, and that determination of whether there is a single act of discrimination having continuing consequences or a continuing act must involve consideration of the particular circumstances.We he concluded that by apparently accepting the respondent's factual case without first hearing all the evidence in order to make proper findings of fact, the Chairman failed properly to consider the relevant circumstances as a necessary prerequisite for determining whether these were single acts of potential discrimination, terminating in June 1995, or a continuing act which did not come to an end until termination of employment in May 1996. That error is material to his overall conclusion in this case, since one of the factors which he took into account was the extent of the delay, which he found to be from June 1995 as opposed to May 1996.Reasons for the delay :One of the factors which it is permissible to take into account in considering whether it is just and equitable to extend time in a sex discrimination case is the nature of any advice which the applicant has received. Hawking v Ball & Barclays Bank [1996] IRLR 258 . To that extent the position differs from those branches of employment law, such as unfair dismissal, where the question is whether it is reasonably practicable to present the complaint within time. See British Coal Corporation v Keeble [1997] IRLR 337 , explaining the approach of the Court of Appeal in the unfair dismissal case of Biggs v Somerset County Council [1996] IRLR 203 .In Biggs the issue was whether it was reasonably practicable to present a complaint of unfair dismissal in time when, at that time, part-time employees' rights were circumscribed by the domestic legislation. That limitation was effectively disapplied by the House of Lords in R v Secretary of State for Employment ex parte Equal Opportunities Commission [1994] IRLR 176 . It was held, in Biggs , that the decision of the House of Lords stated the law as it had always been since 1976 and that it would be contrary to the principle of legal certainty to allow past transactions to be re-opened and limitation periods to be circumvented because the existing law at the relevant time had not then been explained or fully understood.Here, it is the applicant's case that during the first half of 1995 she took advice from both her trade union and the Lesbian and Gay Employment Rights Group ['LAGER'], to be told that a claim of sex discrimination based on her sexual orientation was not covered by existing sex discrimination laws, whether domestic or European. She accepted that advice and took no steps to present a complaint to the Employment Tribunal until shortly after the publication of the judgment of the High Court (Lightman J.) in R v Secretary of State for Defence ex parte Perkins (No.1) [1997] IRLR 297 .In Perkins the applicant for judicial review, a medical assistant in the Royal Navy, sought to challenge the British Armed Forces policy to discharge any person of homosexual orientation. He contended that such a policy contravened Article 2(1) of the EEC Equal Treatment Directive 76/207 ['the Directive']. Lightman J. referred certain questions to the European Court of Justice.The Chairman's approach to this aspect of the case, set out in paragraph 13 of the reasons, was that the advice given to the applicant was not necessarily inaccurate, but was in reality not so advanced or sophisticated as that which might have been given to the parties in Perkins . Secondly, he thought it arguable that the applicant had the opportunity to make this claim immediately after the decision of the European Court of Justice in the transsexual case of PvS and Cornwall County Council [1996] IRLR 347 (judgment given on 30th April 1996). He further distinguished Hawkins on the basis that there the applicant was advised that she had no basis for a claim; in the instant case that the applicant received no such advice.In our judgment the advice received by the applicant from her trade union and LAGER during the first half of 1995 was that she did not have a claim for sex discrimination. We are unable to see the basis for distinction between this case and that of Hawkins on this aspect. Secondly, we accept Ms Drew's submissions that the Chairman confused the "reasonable practicability" test, as applied in Biggs , with the just and equitable test as explained in Keeble . Further, and in any event, the case of PvS did not establish that discrimination on the grounds of sexual orientation amounted to unlawful sex discrimination under European or domestic law, as the ECJ was later to hold in Grant v South West Trains Ltd [1998] IRLR 206 .We pause at this stage to explain the delay in deciding this appeal. We first heard oral argument on 10th February 1998. At that time the ECJ judgment in Grant was imminent. Having reserved our decision the judgment in Grant was handed down on 17th February. The Court rejected the opinion of the Advocate-General and held that discrimination based on sexual orientation does not constitute sex discrimination under European Community law.As a result of that judgment we invited further written submissions from the parties directed to this question; whether, in the light of the ECJ decision in Grant , even if the Employment Tribunal erred in its approach to the exercise of its discretion under s. 76(5) of the 1975 Act it is open to this Appeal Tribunal to affirm the Employment Tribunal's decision on the ground that the substantive complaint is unsustainable.Having received those written submissions we reconvened the tribunal for a further oral hearing which took place on 24th June 1998. Again, we reserved our decision. In particular we were aware that the Court of Appeal had heard argument in the appeal of Smith v Gardner Merchant against the decision of the Employment Appeal Tribunal, Tucker J. presiding [1996] IRLR 342 , and that judgment was expected shortly.On 13th July 1998 Lightman J. revoked the reference to the ECJ in Perkins (No.1) in the light of the ECJ decision in Grant . R v Secretary of State for Defence ex parte Perkins (No.2) [1998] IRLR 508 .On 14th July the Court of Appeal delivered their judgment in Smith v Gardner Merchant [1998] IRLR 511 .Thereafter both parties made further written submissions on the effect of the Court of Appeal decision in Smith .In Smith the applicant, a male homosexual, was employed by the respondent as a barman. He complained of harassment by a fellow employee, directed to his sexuality. An Employment Tribunal held that the 1975 Act did not cover sexual orientation. The Employment Appeal Tribunal agreed. On appeal to the Court of Appeal the applicant abandoned those grounds of appeal wherein it was contended that Article 2 of the Directive prohibited discrimination on the grounds of sexual orientation, and that the 1975 Act should be construed in accordance with that interpretation of the Directive, in the light of the ECJ decision in Grant . However, the Court of Appeal nevertheless allowed the appeal and remitted the case to a fresh Employment Tribunal for rehearing.The Court reasoned that the proper comparison to be made in that case for the purposes of ss. 1(1)(a) and 5(3) of the 1975 Act was between a male and a female homosexual. It was not enough for the applicant simply to show that he was subjected to harassment and thus to a detriment. The Employment Tribunal's task was to ascertain first, as a matter of fact, what was the treatment received by the applicant; second was he treated less favourably than the woman with whom he fell to be compared, that is, a lesbian woman and thirdly, would he have been so treated but for his sex?Doing our best to apply that approach to the facts of this case determination of the substantive issue here requires the Employment Tribunal to decide, as a matter of fact, what treatment the applicant received, and in particular what steps were taken by the respondent's management, including Ms Millard, to deal with the applicant's complaints of harassment by the pupil; was she treated less favourably than would a male homosexual teacher have been treated; would she have been so treated but for her sex?It seems to us, in the light of the law as explained in Smith , that it cannot be said that the applicant's substantive complaint in this case is unsustainable. We therefore return the question raised in this appeal. Did the Chairman fall into error in his approach to the exercise of his discretion under s. 76(5) of the 1975 Act? In our view he did, both in relation to the extent of the applicant's delay in presenting her complaint, and the reasons for that delay, thereby vitiating his final conclusion. Our reasons for so finding are set out earlier in this judgment; we need not repeat them. It follows that it is unnecessary to consider Ms Drew's further submissions concerning the prejudice to each party, also dealt with by the Chairman in his reasons. In any event that is a matter which will be considered afresh by the next Employment Tribunal to whom we shall remit this matter.We were urged by Ms Drew to set aside the Chairman's decision, which we do, and go on to find that it is just and equitable to extend time under s. 76(5). That we will not do.One of the criticisms of the Chairman's approach in this case is that he did not hear all the relevant evidence and make the necessary findings of fact. It would be wholly wrong of this tribunal to reach a judgment on the question of extending time without the facts having been found. In reaching that view we have compared and contrasted the approach of Morison P. in Wade v West Yorkshire Police (EAT/899/96. Unreported) to the question of extending time in that case, and the judgments in the Court of Appeal delivered on 31st July 1998 (also unreported) disapproving that approach, and leaving the question of what is just and equitable to the Employment Tribunal.The final question is on what basis should the case be remitted to a fresh Employment Tribunal? In our judgment this is one of those case where the factual issues relevant to the issue of extending time under s. 76(5) are so inextricably linked with the factual issues arising in the substantive case, that the proper course is for the whole case to be heard by a full Employment Tribunal. The issue of limitation may then be considered at the same time as the substantive issue.