Butler v Preston & Anor [1999] UKEAT 1332_98_1404

EAT
Butler v Preston & Anor
[1999] UKEAT 1332_98_1404 · 1999-04-14
MR JUSTICE LINDSAY: We have before us by way of a Preliminary Hearing the Appeal of Mr M A Butler, who was Second Respondent in the matter Miss A Preston -v- Eglantier Ltd and Mr M A Butler . There was a decision of the Employment Tribunal promulgated on 17th August 1998. The decision was directed to a preliminary point and it was this - "The unanimous decision of the Tribunal is that the application under the Sex Discrimination Act 1975 was presented in time and should be heard on a date to be fixed before a different tribunal."The matter begins with Miss Preston's IT.1 on 14th April 1998. It was directed to two persons, Eglantier Ltd and Andrew Butler, and it was for redundancy payment, unfair dismissal and sex discrimination. The employment had ended on 31st January 1998. There was no suggestion in Miss Preston's IT.1 that Mr Butler was her employer but rather she complained that he was a manager of and a shareholder in the company employer, Eglantier Ltd. The complaint was as to events involving Mr Butler in July 1997 and September 1977. She said that on 16th October 1997 she had complained to another shareholder in Eglantier Ltd about Mr Butler's behaviour and that on 16th January 1998 she was given notice to expire on 31st January 1998.Speaking of the period immediately after the 16th October, she said:
"From that time on I had very little contact with Mr Butler. Exactly three months to the day after the complaint, [that is to say, the complaint to Mr Pearson, the other shareholder about Mr Butler's behaviour] I was given my notice and my employment finished on 31st January. I was told that I was being made redundant as there was no need for my position to exist any longer. However, Mr Preston admitted to me that I was being made redundant due to the position that had arisen between Mr Butler and myself."
There was no indication that the Company had been asked by Mr Butler to dismiss her or that in any way Mr Butler had procured the dismissal or had even been aware of the reason for it.Miss Preston claimed 5 things. She said in her para 22:
"Accordingly, my claim is for: (a) A declaration that the Respondents unlawfully discriminated against me with regard to my sex; (b) A declaration that I was unfairly dismissed; (c) A declaration that I am entitled to redundancy payment; (d) A declaration that I am entitled to holiday pay for days accrued but not yet taken; (e) Compensation."
Of those, only (a) the declaration about unlawful discrimination on the grounds of sex and possibly (e) could conceivably involve Mr Butler as a party. That was her form of IT.1 as expanded by an accompanying sheet.On 14th May 1998 and 11th June, the Company, Eglantier Ltd, by Mr Pearson, a director, asserted in writing to the Employment Tribunal firstly that Mr Butler never was a director or even an employee but merely, from time to time, an independent sales contractor; secondly, that the office in Chester had closed in January 1998 (and it was in relation to work in and around Chester that the complaint was made) and thirdly that the Company, from the 17th October 1997 and as confirmed in January 1998 at the latest, had indicated to Mr Butler that it would no longer allow him to be associated with the Company.On 18th June 1998, there was a Notice of Appearance by Mr Butler, the Second Respondent. It claimed that Mr Butler ceased to have any involvement in the affairs of Eglantier Ltd from a date in December 1997. It claimed that he had been its sales manager, that he had had no influence on Miss Preston's employment ceasing and, most importantly for immediate purposes, that her complaint against him was out of time under Section 42 of the Sex Discrimination Act. It has to be remembered that her IT.1 had said that she had had little contact with Mr Butler after 16th October 1997, that the sexually motivated events had been even before that, that her IT.1 was on 14th April 1998 and that the time limit is 3 months.On 26th June (although this is unseen by us) a Chairman directed a preliminary question as to whether, inter alia, the Sex Discrimination Application against Mr Butler, (one has to emphasise, against Mr Butler) had been presented in time. There was no direction of a question as to whether the claim as against the Company was in time, only the claim against Mr Butler.On 27th July there was a Hearing at the Employment Tribunal and on 17th August, the decision was promulgated and it was unanimous, as I have mentioned earlier, that the complaint was in time and should be heard before a different Tribunal.The reasons that were then given require a little examination. The reasons begin as follows:
"The Applicant seeks a declaration and compensation (amongst other remedies for other complaints) for alleged sexual harassment and/or discrimination by the Respondents which they both deny. It was intended that the Application was submitted out of time (and that issue and another which is to be the subject of a separate decision) came before us for examination as a preliminary point."
That is not quite correct. The Application was, of course, an application against both Eglantier Ltd and Mr Butler. It was never an issue whether the complaint as against Eglantier Ltd was out of time. The only time-bar point that was proper to be considered by the Employment Tribunal at the Hearing of 27th July 1998 was whether the complaint against Mr Butler was time-barred. The complaint against the Company - namely unfair dismissal on 31st January 1998 followed by a complaint on 14th April 1998 - was plainly not time-barred. It was thus crucial to keep separate the two Respondents and to deal only with the time-bar as against Mr Butler. If this matter goes further, then many questions may arise as to Section 4 of the 1975 Act about victimisation, which was not mentioned in Miss Preston's complaint, and about Section 6 - Discrimination by an Employer - and therefore, not a thing available against Mr Butler, and about Section 41. But in dealing with the point that was the only point in front of them the Employment Tribunal concluded in their paragraph 5:
"Having regard to the facts and the law and in particular that 14th April 1998 is within the 3 months from 31st January 1998 we unanimously decided that the complaint under the Sex Discrimination Act was presented in time and should be determined on its merits after a Full Hearing, the date of which is now to be fixed, before a differently constituted Tribunal."
That, it seems to us, is a highly confusing conclusion. What is the complaint under the Sex Discrimination Act to which they refer? Is it a reference back to para 1, which failed to separate the separate positions of the two separate Respondents? If the complaint is the giving of a notice terminating employment (which, after all, would seem to be what the Employment Tribunal had in mind, because that is what they refer to in their para 4 when they say "When an alleged discriminatory act is the giving of notice terminating a person's employment") then one has to ask, what on earth has that got to do with Mr Butler? He was not alleged to be the Employer. There is no evidence recited that he was the Employer. There was no allegation in the IT.1 that he had procured the dismissal and no evidence is recited that he had procured the dismissal. No holding of fact emerges that he had procured the dismissal. It is even left open whether he was employed because in para 2(e) of the Reasons, the Employment Tribunal says "Mr Butler's employment by the First Respondent is another issue which remains to be resolved". He himself is not recited as having been responsible for anything after 14th September 1997.

(b) of the Reasons where the Tribunal held:

The Applicant alleges direct discrimination/harassment by the Second Respondent in Chester on several occasions, the last being on or about 14th September 1997."The Notice of Appeal is supported by an Affidavit from Mr Butler, who appeared in person below, and the Chairman has written some comments on that Affidavit. To some extent, the Chairman's reasons in his recent comments perpetuate the failure to separate the claim against the First Respondent, as to which time-bar was not an issue, and against Mr Butler, the Second Respondent, as to whom alone the Industrial Tribunal should have been ruling. Thus, Mr Butler, in a "Schedule of Appeal", says:"They [that is to say the Employment Tribunal] failed to consider the position of the Second Respondent as distinct from the position of the First Respondent in deciding that the Application was lodged in time".and that met with the comment from the Chairman:
"The question "was it presented to the Tribunal in time" was, I understand, intended to determine whether the Tribunal had jurisdiction to hear the claim and is not to be considered as "against" an individual/different Respondent but vis-à-vis the Tribunal."
The Chairman adds:
"I respectfully refer to the Notes of Evidence given on the Hearing on 27th July 1998"
and he further adds:
"The EAT may consider that a copy or transcript of the Notes of Evidence on 27th July 1998 would assist in considering and determining this Appeal."
It does seem to us that there is here an arguable point that the Employment Tribunal did insufficiently distinguish the position of the two Respondents, to the disadvantage of Mr Butler. We determine that the matter should go to a Full Hearing and that the Notes of Evidence (or, if the Chairman's reference to a transcript suggests that there was a transcript, then the transcript) should be made available, but, one way or another, by Notes of Evidence or by way of a transcript there should be available what record there is of the Hearing before the Employment Tribunal.The matter therefore, goes to a Full Hearing.