MRS H BAYLISS v LONDON BOROUGH OF HOUNSLOW & OTHERS [1999] UKEAT 1177_98_2210

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1177_98_2210Case No Appeal No. EAT/1177/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS H BAYLISSAPPELLANTLONDON BOROUGH OF HOUNSLOW & OTHERSRESPONDENT
Before
His Honour Judge J Altman Mr W Morris Professor P D WickensDate 22 October 1999
[1]APPEARANCES For the Appellant MR A GUMBITI-ZIMUTO (of Counsel) JUDGE ALTMAN: This is an appeal from the decision of the Employment Tribunal sitting at London North on ten days between April 1997 and April 1998. In that decision, the Employment Tribunal dismissed by way of preliminary hearing, before hearing the substance of the remaining matters, the Appellant's complaint of race discrimination and victimisation under application 62133/94/LN for want of jurisdiction because the complaint was out of time. They also declined to extend the time on the ground that it was just and equitable to do so. The decision of the Employment Tribunal is of some 30 pages in length and gives a great deal of detail about the history of this matter, and it is unnecessary for us to deal with it in any great detail. The claims all relate to the period when the Appellant was an employee of the London Borough of Hounslow and the main person who was criticised by the Appellant as having been racially discriminatory in her behaviour was a Mrs Lemmings. The background of all that transpired is the fact that complaints by this Appellant were investigated by the Local Authority, and to a large extent were confirmed, and Mrs Lemmings was subject to some severe criticism. We should also add that there appears to be evidence that during the period of her employment, and the Appellant would say because of what happened during her employment, the Appellant suffered severe mental illness, what is described by her Counsel before us as a 'breakdown'.[2]In those circumstances we can understand the frustration of the main body of those matters being dealt with by way of preliminary hearing, for in their decision, when they came to deal with the preliminary hearing, the Employment Tribunal specifically said that they were not considering the merits. On page 16 in paragraph 11 the way in which the Employment Tribunal dealt with this matter was set out. It appears that before the main hearing got underway, the Tribunal gave to the parties the decision and the reasons orally, and it said at the bottom of page 16 of the Tribunal decision:
"The Tribunal did not form any view on the merits of the Applicant's allegations against the Respondents which are in dispute."
They then went on to say:
"All the allegations made be the Applicant against the Respondents, as given in evidence, and in her IT1, and in her further and better particulars… and in her chronology of events… occurred prior to the statutory three month time-limit period (8 August to 7 November 1994) immediately prior to the presentation of her IT1 to the Tribunal on 7 November 1994."
They then conclude by asserting that from 20 August 1994 the Appellant was on sick leave and never returned to work.[3]Issues fell for consideration on the evidence before the Tribunal as to the possibility of subsequent events keeping alive by way of continuity earlier acts, whether themselves new acts of discrimination, or behaviour or conduct which served to provide the essence of a continuous act. We have been referred to the following. In the further and better particulars, furnished by the Appellant, in paragraph 17 there was reference to incidents on 20 and 28 June 1994 involving weekly supervision sessions, but then, in paragraph 18 it was alleged as follows:
"On numerous occasions thereafter, and in particular at weekly supervision sessions, the Applicant repeatedly informed and reminded Helen Gill of the intolerable atmosphere that she was required to work in."
It is suggested to us by Counsel for the Appellant that within those particulars is an allegation of a continuing course of conduct which deserved to be considered on its merits and could not be said to be, on the face of it, out of time.[4]In paragraph 11(2) of their decision on page 17 the Employment Tribunal dealt with another date, which is 19 August 1994, for an act of alleged discrimination on that date would have been within time and may arguably, if part of a continuous course of conduct, have kept alive earlier allegations. The finding of the Employment Tribunal is that the Appellant was approached on that day by Ms Lemmings who asked her in an angry manner:
"By the way, why am I the only one who is having all the flack? What about the others who are calling you names?"
. They then went on to say this:
"Whilst it might have been unwise of Ms Lemmings to have initiated that conversation, she did so on Mrs Baldwin's advice and those comments by Ms Lemmings were not capable of being an act of race discrimination or victimisation…"
The Tribunal then go on to point out that in the case of Ministry of Defence v Jeremiah [1980] ICR 13, the word 'detriment' meant putting someone to a disadvantage and they go on and say:
"That was a question of fact and degree for the Tribunal. This Tribunal is unable to find that those remarks made by Ms Lemmings were by per se an act which subjected the Applicant to a detriment."
[5]It is argued on behalf of the Appellant that the Tribunal appears there to have been exercising a judgment as to the merits of the allegation. The incident of 19 August 1994 was placed before the Employment Tribunal as an allegation of discrimination and by making a finding that the claim was out of time, it is argued that they must have made as a condition precedent to making that finding, a finding by the Employment Tribunal that there was no merit in that Application. That is said to be tantamount to striking out an allegation on the grounds that it has no reasonable prospect of success which it is not within the jurisdiction of the Tribunal to do. It is the sort of finding that comes very often, Mr Gumbiti-Zimuto says, at the end of a hearing, but not one that could form the basis of a finding as a preliminary matter in relation to striking out. We are satisfied that that raises an arguable point of law. Did the Tribunal err in making a judgment about the merits of the complaint of 19 August when determining that the complaint dated 17 November was out of time?[6]There are other matters also. It is pointed out to us that in the Witness Statement of the Appellant at page 78 there is reference to events on 13 November 1994 of threatening phone calls which on the face of them appear to have been frightening. There is also, we are told, evidence that earlier in November, on about 4 November, there was an incident where employees of the Local Authority drove past the Appellant, went around the round about and drove past her again, which was dealt with as a disciplinary matter. It is argued before us that whilst some of these matters may have occurred after 7 November, some occurred before and, in any event, if they were not incidents of direct discrimination, they were both admissible evidence in support of the proposition of a continuing atmosphere at work. I should add that these matters are also referred to in paragraph 93 of the Witness Statement.[7]On the basis that there is no reference to those matters in the decision of the Employment Tribunal, we come to the conclusion that on the face of it there is an arguable point of law. However we are a little puzzled about this aspect of the case because these incidents form no part of the specified allegations contained in the Appellant's own further and better particulars. The absence of them there or in the decision of the Tribunal leaves us to be concerned as to the extent to which, if at all, they formed part of the hearing.[8]Accordingly, as this matter proceeds to a full hearing before the Employment Appeal Tribunal, we would request the Respondents to address their reply to the issue as to what part, if any, these allegations formed in the proceeding. If they accept that they did form part of the proceedings, so be it. We have been told that these allegations, which were read out in a Witness Statement, were not contradicted, and so on the face of it they seem to be part of the proceedings. In the event that the Respondents dispute that they form part of the proceedings, then we direct that a letter be written to the learned Chairman, asking him to check with his notes and write a letter to the Employment Appeal Tribunal summarising the extent to which those matters were referred to during the course of the proceedings. It does not seem to us necessary at this stage to direct actual transcription of the Chairman's notes.[9]Finally, on the same issue, we were referred to the section I have already read, paragraph 11(1) of the decision in relation to section 68(7)(c) of the Race Relations Act 1976 which deals with the period within which proceedings are to be brought and which provides that:
"A deliberate omission shall be treated as done when the person in question decided upon it; and in the absence of evidence establishing the contrary, a person shall be taken for the purposes of this section to decide upon an omission… when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done."
The argument raised by Counsel, is that where the complaint as set out at the beginning of that section 11(3) in the words of the Employment Tribunal was "the Applicant's claim against Hounslow was to the effect that it did not carry out any investigations etc," that was an allegation of a continuing omission during its period.[10]It is arguable that the Employment Tribunal in looking at that period should have evaluated it in relation to the section I have quoted in order to determine whether there was an omission to act during that period which could be said to be in time. The Employment Tribunal, it is argued, could only have evaluated that at a full hearing and that, in reaching the conclusion that the claim was out of time it is said that they must have formed a judgment on the merits of the argument as to the conduct of the local authority during that period of time. On the face of it, the Tribunal's decision was that the complaint of 7 November was entered when the disciplinary proceedings were still ongoing and had not been concluded. It is argued that on a proper application of that section the determining facts are not simply what was going on at the time the application was entered, but the whole period of time of the investigations.[11]So on that ground alone, namely whether the Employment Tribunal considered all the facts when assessing whether the claim was in time on the one hand, and whether they wrongly evaluated some of the merits of the claim in dealing with that issue on the other, we permit this matter to go forward for appeal.[12]There are other bases upon which this appeal is brought. It is said that in any event if the claim was out of time, the decision that it was not just and equitable to extend the time so as to validate the application was one which no reasonable Tribunal properly directing itself could have reached and there are two grounds upon which that is put forward. In their decision at page 18, from sub paragraph 4 to page 19 sub paragraph 11, the Employment Tribunal consider this issue. It is said they have not considered any prejudice to the Respondents. However, having weighed the matter against the Appellant's in any event, a finding of no prejudice to the Respondents could not have helped the Appellant and a finding of prejudice to the Respondents could only have enforced the decision reached by the Employment Tribunal. So that although that issue was not spelled out it did not make, we find, any difference to the decision.[13]The next matter that is referred to is the Tribunal's finding in relation to the illness of the Appellant, in paragraph 7:
"As to her mental state and depression, it is to be noted that she was nevertheless able to have meetings with her well-wishers and advisers during the relevant period."
And it is said that that flies in the face of the clear medical evidence that was before the Tribunal at the time, and the way it is phrased demonstrates that the Tribunal paid scant regard to the clear medical evidence following upon severe illness and mental breakdown which was well documented before the Employment Tribunal.[14]We recognise that the way in which that paragraph is expressed is not very solicitous. This was a long hearing and a very long decision and sometimes it is not easy for a Chairman to reach the pinnacle of elegant expression at every point of a decision. It seems to us that what the Chairman is really saying is that taking account of the Appellant's mental state and depression, nonetheless there is evidence to be set against that of her ability to take certain actions which they spell out in the other paragraphs, and which leads them to conclude that the failure to enter the Originating Application is not solely attributable to that illness. That was the reality, it seems to us, of their finding and in those circumstances was a finding which does not evince any error of law. They clearly exercised a balancing act and came to a judgment on that matter to which they were entitled to come. We have no views one way or the other about whether they were right or wrong or whether we would have agreed or disagreed had we been in their position. All we say is that there was no error in law in the way in which they determined that matter.[15]Thirdly, there is an allegation which Counsel has qualified as relating only to the appearance of bias. This allegation has been set out in relatively considerable detail by the Appellant and the Chairman has provided a detailed response. I say at the outset that it is always difficult for an Appellate body such as this to evaluate this sort of allegation and to see whether it contains an error of law in a way that will make the parties feel that it has been done fairly. After all, Chairman of Employment Tribunals and Appellate Tribunals share much of their positions in common, and although they may not know each other, there is undoubtedly a risk, where the procedure that is followed is the one in this case, that the parties may be left thinking that this allegation has not received due consideration. But we wish to emphasise that the allegations in this case have been taken very seriously and the particular allegations upon which the Appellant now relies have been spelled out to us. In the main, it is unnecessary for us to consider the response of the Chairman. We are content to deal with the matter on the face of the allegations that are made.[16]Ground 19.3 refers to what is alleged to be, if I may so describe it, an ill-judged joke about tranquillisers which, because the Appellant was taking tranquillisers, it is said, caused her unnecessary distress. This is one allegation, which the Chairman and members deny, but we are told that one of the Counsels attending remembers, some such comment having been said. We were not there, we do not know. But even if some comment of that kind was made in the course of an enormously long hearing, it would have been unfortunate. That does not seem to us to be an illustration of the appearance bias. It is therefore unnecessary for us to consider whether or not that was said.[17]There is then reference to the alleged illness of the Appellant and the Chairman enunciates the times when there were breaks that he had recorded. It is quite clear from the response of the Chairman that he believed that he and the members had accommodated the disability of the Appellant, but what is more important, it is quite clear from what he has said that he wished to accommodate the disability of the Appellant and that therefore, on the face of it, if anything occurred which caused the awful experience that was described by the Appellant on that ground, we cannot attribute it, even on the face of the allegation, to the appearance of bias in the way in which the case proceeded.[18]So far as ground 19.5 is concerned, there is an allegation that the Chairman harshly said to the Appellant that it is time that she face up to the facts of life. The Chairman denies this and was referring to the fact that the Appellant was being told that she had to face up and accept the undisputed facts. There is a dispute between what the Appellant says and what the Chairman says on those narrow words within which is a world of difference. We cannot envisage any way of resolving that dispute which would enable any impartial bystander to come along at this stage and say anything other than that there must have been a misunderstanding. If the Appellant is able to put itself in the place of the Employment Appeal Tribunal for a moment, we hope that it will be recognised that there is no way in which it can be concluded on that sort of dispute that there was an appearance of bias.[19]We turn now to ground 19.14 in which there is reference to the way in which the procedure was handled and the decision of the Chairman was expressed about preferring the evidence of one witness to another and that he was interrupted during the course of his decision and responded in a way that is described as 'objectionable'. Having expressed the decision during the course of the hearing, that interruption, whilst we can appreciate the Appellant's anxiety, it seems to us was one which was out of order in the way in which Tribunal's normally conduct their affairs. We cannot see any evidence of bias therefore in that, although it is an illustration of the discontent of the Appellant with the actual findings and approach to the evidence of the Tribunal but parties often do not agree with the judgment of a Tribunal.[20]19.19 complains that when the Chairman said that the earlier race and victimisation complaints were out of time, that even though he was corrected by Counsel on both sides, he maintained the position. That is not an allegation of bias, that is simply an allegation of failing to come to the conclusion on that issue which the Appellant wished him and the lay members to come to and is not an allegation of bias. Then in paragraph 19.22 there is a disagreement about the evidence, but that is a matter for the Tribunal to deal with and is not, it seems to us, evidence of bias.[21]There is then in paragraph 21 reference to the question of medical illness and the complaint in paragraph 22 that the word illness was placed in inverted commas. We do not know why it was placed in inverted commas but we cannot see that as an example of bias and we have dealt with the other aspects of the reference to the mental illness.[22]Finally, it is complained of that the Chairman said he found considerable merit in the claim that the allegation was frivolous and vexatious. Perhaps that was an upsetting way to put it for the Appellant after coming to the end of ten days of hearing and we can well understand the feeling that if a Chairman felt any part of the case was frivolous and vexatious he would not have allowed it to go on for so long. The upshot was that there was no order for costs and we cannot see any bias evident in that little phrase.[23]Finally, there is one matter raised in the grounds of appeal which form the basis of an application before us to introduce a new ground of appeal, namely that, in their decision, the Tribunal failed to consider the position of an obvious comparator in relation to the allegation of discrimination. Reference is made to it in the context of an allegation of bias in 19.21 in the grounds of appeal in which there was complaint about reference to the talking about posts or employment and the way in which Ms Lemmings was dealt with.[24]We have come to the conclusion that at this stage it would be quite wrong to permit an amendment to grounds of appeal of such a fundamental kind at such a late stage without any preparation or detailed notice having been put forward and we refuse to permit the Notice of Appeal to be amended. Accordingly this matter will proceed on the grounds relating to the approach of the Tribunal to the dismissal of the complaint for being out of time, the earlier complaints. It will be listed for one day, Category C, subject to the procedures requesting the Respondents to submit their answer to the issue of the alleged November incident. There is at this stage no order for Chairman's notes but Skeleton Arguments should be furnished not less than 14 days before the hearing.[25]This is a very old case and accordingly we have decided to accept the submission that the listing for appeal should be fast-tracked. We anticipate that in any event that will give time for the steps relating to enquiry from the Chairman to be made if necessary and the time for the response of the Respondents will be 14 days from the promulgation of this judgment.