THE CHIEF CONSTABLE OF THE WEST YORKSHIRE POLICE v MS W [1999] UKEAT 1144_99_0612

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1144_99_0612Case No Appeal No. EAT/1144/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE CHIEF CONSTABLE OF THE WEST YORKSHIRE POLICEAPPELLANTMS WRESPONDENT
Before
Mr Justice CharlesLord Gladwin of CleeDate 6 December 1999
[1]APPEARANCES For the Appellant MR D JONES (of Counsel) Instructed By: Mr A K Hussain Force Solicitor West Yorkshire Police Police Headquarters Laburnum Road Wakefield WF1 3QP For the Respondent MR P GILROY (of Counsel) Instructed By: Mr R Critchley West Yorkshire Police Federation 5B College Grove Road Bishopsgarth Wakefield WF1 3QP MR JUSTICE CHARLES : We have before us an Interlocutory Appeal. The parties to the proceedings are the Chief Constable of the West Yorkshire Police and a Ms W who was (and I think still is) a Police Constable on that Force. The appeal is against a decision of the Employment Tribunal sitting at Leeds. The Extended Reasons for that were sent to the parties on 22 September 1999.[2]The matter in contention between the parties before the Regional Chairman, whose decision is the subject of this appeal, is whether or not a Preliminary Hearing should be heard as to jurisdiction and thus as to Section 76 of the Sex Discrimination Act.[3]To succeed on an appeal of this type, which is against the exercise of a discretion by a Chairman of an Employment Tribunal, the Appellant must demonstrate that the Chairman has erred in law either by posing himself or herself the wrong legal question, by taking into account matters which should not be taken into account and/or leaving out of the account matters which should have been brought into account.[4]Alternatively, to succeed the Appellant has to demonstrate perversity in the sense that the decision is outside the range of decisions open to an Employment Tribunal properly directing itself in law.[5]The Appellant relies on both heads in this appeal, namely error of law or perversity and thus Wednesbury unreasonableness. As to that, the Appellant points to the fact as included in the Extended Reasons that in the first set of proceedings, which were the only set of proceedings before the Chairman of the Employment Tribunal, the only matter within the three-month time limit is that included in paragraph 4.51 of the extensive grounds of complaint. Those grounds run over seven pages and, in our judgment, it is clear from them that, in addition to making complaints based on a number of acts, the Applicant is alleging a practice or a policy to bring herself within Section 76 (6) (b) of the Sex Discrimination Act 1975. That appears, for example, from paragraphs 4 and 7of the grounds of complaint.[6]Following the hearing before the Employment Tribunal the Applicant has issued a new set of proceedings on 22 November 1999. The grounds of complaint in that IT1 run to just over three pages and raises allegation and therefore, in terms of Section 76, acts complained of up to 9 November 1999 and thus well within the three month period relating to those proceedings.[7]The Applicant asks in those proceedings that they be heard with the earlier proceedings. In our judgment, it is sensibly common ground between the parties that the two sets of proceedings should be consolidated which is a reflection of the co-operation referred to in paragraph 6 of the Extended Reasons which are the subject matter of this appeal.[8]Paragraphs 1 to 5 of those Extended Reasons are the relevant paragraphs and they are in the following terms:
"1. Mr Hussain for the respondent has argued that there should be a preliminary hearing in order to determine whether the application was presented in time, that is within 3 months of the act complained of. 2. He has suggested that it is not entirely clear that there is an act of discrimination complained of within the 3 month limitation period. Furthermore, he adverts to the fact that the applicant made an official complaint which was heard by an Assistant Chief Constable. At the end of that process the applicant signed a document withdrawing her complaint. She describes that process in paragraphs 4.43 and 4.44 of the grounds of her originating application. Mr Hussain argues that there should be a preliminary hearing in order that the tribunal might hear why it was that the applicant did not present a complaint of sex discrimination within 3 months of those events. 3. It seems to me that there is an act complained of within the 3 month limitation period. Paragraph 4.51 reads: 'I have recently been advised (within the last few weeks) that a male officer on the Unit, John Larson, whose tenure is to expire shortly after mine, has been granted a year's extension … .' In the context of her complaint, the applicant is there saying that she was treated less favourably than a male officer because she had earlier said that it had been made clear to her that her tenure at the Motor Cycle Unit would cease. Whilst there may be issues of fact arising out of that pleading, it does appear to me to be within the 3 month limitation period. 4. The only arguments which would then arise is whether that was a discreet act of discrimination or whether it was part and parcel of a continuing act. The applicant will seek to argue that it was the latter. If it was not, she would seek to argue that it would be just and equitable that the tribunal should nevertheless grant her relief in respect of the other acts, out of time, of which she complains. 5. Either way, the tribunal would have to hear all the evidence in order to make those decisions. Furthermore, it has been said that the parties are entitled normally to have their cases heard at one hearing. Mr Hussain points out, quite rightly, that this case is likely to take at least four weeks and that some saving of time might be had by the hearing of a preliminary issue. Given the nature of the case, however, I cannot see that any saving is likely to be made. Indeed, there is a risk that two days might be wasted."
[9]The first assertion that is made on behalf of the Appellant is that the Chairman of the Tribunal erred in law in identifying the allegation contained in paragraph 4.51 of the grounds as an act complained of within the three month period. That, as is pointed out on behalf of the Respondent to this appeal, is not quite as the argument was put to the Chairman (see paragraph 2 of the Extended Reasons). What was submitted to us by way of skeleton argument was that that allegation was simply an evidential point rather than an act complained of.[10]The counter argument is that inherent within the positive assertion in paragraph 4.51 is an assertion that by omitting to reconsider the Applicant's wish to have her tenure extended the Respondent discriminated against Ms W so that paragraph 4.51 is an act complained of. In our judgment that is arguable and the Chairman has not erred in identifying paragraph 4.51 as containing within it an allegation of an act complained of within the three-month limitation period.[11]The second point that is put as being an error of law relates to the beginning of paragraph 5 of the Chairman's Reasons where he says:
"Either way, the tribunal would have to hear all the evidence in order to make those decisions"
. In particular it is said that if this case did not raise issues of practice or policy that would be an incorrect statement of law because it would not necessarily be the case that a Tribunal would have to hear all the evidence to decide whether or not it was just and equitable to extend time in respect of allegations or acts complained of which go back over a number of years (and which we understand to be over 40 in number) when only one allegation is within the time limit. On that hypothesis we would be inclined to agree that that would be an error of law but, it seems to us, that that is not the correct way to approach these Extended Reasons which have to be read as a whole.[12]Within those Extended Reasons, as we read them, the Chairman clearly identified the case that here the Applicant was asserting that there was a practice or policy. Part of his reasoning, it seems to us, is that in determining that issue (which is disputed) it would be necessary for the Tribunal to look at the allegations set out in the IT1 because, as can be seen from paragraphs 4 and 7 of the IT1 albeit in an unparticularised way the Applicant relies on all of those matters to establish a practice or policy.[13]It therefore seems to us that within the thinking of the Chairman (and indeed this seems to us to appear expressly from paragraph 5) was the point that in respect of the allegation that there was a practice or policy the Tribunal would have to hear evidence as to all or most of those matters and time and costs would not be saved by embarking upon a preliminary point as to jurisdiction.[14]We have therefore concluded that on a proper reading of the Extended Reasons they do not demonstrate an error of law.[15]We turn to consider perversity. This is obviously a difficult ground for any Appellant to establish and, in our judgment here, the Appellant has failed to establish that ground primarily for the same reasons namely that the conclusion not to have a preliminary hearing as to jurisdiction is linked to the allegation that there was a policy or practice. In our judgment before seeking to determine whether there was a practice or policy as alleged on the hypothetical basis that the allegations in the IT1 are true it would be necessary and appropriate to give the Applicant the opportunity to particularise her case and thus provide the linkage alleged and her reasoning why the acts establish a practice or policy. Further, even after this had been done, there would be a real risk that with hindsight it would be considered that the identification and hearing of a preliminary point on such a hypothetical basis as to whether there was a practice or policy and thus jurisdiction had been a time consuming and costly mistake.[16]It seems to us that it is within the range of discretion open to a Chairman faced with an assertion of practice, coupled with an assertion that the incidents alleged can be used evidentially to establish that practice, to conclude that the most sensible way of proceeding with the case would be to hear the evidence or put another way, the most sensible way of proceeding with the case would not be to embark upon points as to jurisdiction with a view, as seen through the eyes of the Respondent, of removing from the case a number of allegations as complaints or in their entirety.[17]Accordingly, in our judgment, this appeal should be dismissed. We would however wish to add some further points for the consideration of the Tribunal that hears this case.[18]During the course of the hearing before us to a large, if not exclusive, extent as a result of questions posed by me as to the way in which the case will be managed, we heard submissions not directed to whether or not there should be a preliminary issue as to jurisdiction with a view to removing certain of the allegations from the case as complaints or entirely, but submissions as to case management.[19]In this context Counsel for the Applicant helpfully undertook that he would prepare a statement of case. It seems to us that both applications would benefit from the preparation of a statement of case. To give an example, such a statement of case should make it clear why it is asserted that the allegations made as to the conduct of other Officers of equivalent rank in the Unit found an allegation and a finding that there has been, and is, a practice or policy. When that is done it seems to us that that should assist the Tribunal in their assessment of the evidence. It would also assist, as we see it, the Respondents in preparing their case. The first IT1 contains a number of particulars but, for example, does not contain some of the appropriate and necessary linkage. We do not criticise it for that. It seems to us that this is a matter which needs to be considered at the case management stage rather than at the initial stage of putting in an IT1, particularly when one bears in mind that a number of IT1s are home-drawn documents.[20]However, it does seem to us that it would be likely to be of considerable assistance to the three Tribunal members before they embark upon this case, to know in detail the case which the Applicant is making. That is not to say that the statement of case means that the matter is writ in stone, but it will demonstrate, for example, the manner in which and the reasons why the Applicant would, for example, be inviting the Tribunal to infer discrimination or to infer a practice.[21]It seems to us that it was rightly put on behalf of the Chief Constable that there needs to be some form of linkage and connection to the individual acts asserted to establish a practice, and the Applicant cannot simply identify and prove 40 odd individual acts and say "There you are". There needs to be something more to establish a practice or policy and in our judgment, a statement of case should identify that. By way of further example the statement of case would indicate why it is arguable that inherent in paragraph 4.51, cited by the Chairman, is an allegation of sex discrimination or victimisation by omission. This may be immediately apparent to the experienced Chairman, it may be less apparent to his two Tribunal members.[22]It follows from what we have said that we are confident that a statement of case will be prepared on behalf of the Applicant. We are also confident and, indeed, would expect that if, and when, that is served the Respondent below would prefer a statement of defence.[23]Given the spirit of co-operation demonstrated before us, in the sense that both sides are clearly ably represented, and are therefore seeking to deal with this case by identifying issues and in an expeditious way, we would also imagine and hope that both sides would produce skeleton arguments for the assistance of the Tribunal at the start of the hearing.[24]Speaking at this stage for myself, if I was chairing such a Tribunal, it is likely that I would wish to hear from both parties at the beginning of the hearing in an attempt to identify issues and how matters are being put and to clarify what they both say as to the underlying issues of law. My hope in taking this course would be to assist me and my Tribunal members in assessing and following the evidence, or put another way to help us to know what we were looking for when listening to the evidence.[25]The course that this Tribunal takes is, of course, entirely a matter for them.[26]The potential difficulties in this case, both of fact and law, were however demonstrated by the discussion and submissions made in answer to questions as to what the issues were and we would urge the parties to draft a statement of case, a statement of defence and skeleton arguments in as detailed a way as is possible, to assist the Tribunal in identifying at the outset the issues which fall for determination in this case. So that, for example, at the very beginning, taking paragraph 4.7 of the grounds which assert:
"On 29 February 1996 I was called a 'tart' on two occasions by …" (and then a Police Constable's name is mentioned)" the Tribunal could identify from what is provided by the parties, why this assertion is relevant. First, "
Why is it relevant to the assertion that there is a practice or policy?". Second, "If it is not part of a practice or policy. What is the nature of the complaint based upon that allegation and why is it being said that that allegation is relevant as a background and why is it said that that allegation should be one in respect of which the discretion to extend time should be exercised?".[27]Against that background we would also hope that the parties would be able to identify, so far as is practical, matters of fact which are agreed or matters of fact which they both accept need not be gone into. We would hope that sensible arrangements are made as to the time-tabling of witnesses, in particular having regard to the fact that, as we understand it, a number of witnesses would have to be taken away from police duties to attend the Tribunal. We are confident that those sort of practical arrangements will be made by the Applicant herself and by those that advise her.[28]On instructions, Counsel for the Chief Constable has asked whether we will grant leave to appeal. The basis of that application is that the issue before us, so it is said, has not been specifically covered by the Court of Appeal.[29]It seems to us that there is considerable guidance in authorities to which we were referred and which supported a submission made on behalf of the Chief Constable that, in respect of a number of issues of this type there is no finite answer as to how a Chairman of the Tribunal should proceed. As we have said it appears to us for the reasons we have given that this Chairman did not err in law.[30]It is clear what the limits of this Tribunal's jurisdiction are and all we have done, as we see it, is exercise the established approach appearing from the authorities to which we were referred when considering an appeal against an exercise of discretion as to whether or not there should be a preliminary hearing as to jurisdiction and we do not think it appropriate therefore to grant leave to appeal in this case. If the Chief Constable wishes to seek leave he will have to seek it from the Court of Appeal.[31]Counsel for Ms W made an application for costs. The basis for that was that this appeal was unnecessary. It was said that this was so because of the difficulties that had to be overcome by an appellant in an appeal such as this which we have identified in this judgment.[32]It seems to us that this was not an appeal that can be categorised as being unnecessary or doomed to failure. Looked at through our own eyes, we would hope that it has produced something that was useful. If the substance of this appeal had been that the Chairman had been refusing to give any preliminary directions, rather than its actual subject matter namely his refusal to direct a preliminary hearing as to jurisdiction we think that a different result may (and we obviously say, only may) have occurred. It seems to us that the way in which the IT1 is drafted and its contents prompted the need for the jurisdiction of the Tribunal to be considered and the issue to be considered as to whether or not the matter should be heard by way of preliminary issue.[33]As our judgment indicates we have read the reasoning in a fairly generous, although we believe proper manner. There were arguable points raised on this appeal. The fact that the appeal has not been successful does not mean that it was unnecessary and we refuse the application for costs.