MR A BUTLER v (1) MISS A PRESTON (2) EGLANTIER LTD [1999] UKEAT 1332_98_1811

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1332_98_1811Case No Appeal No. EAT/1332/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A BUTLERAPPELLANT(1) MISS A PRESTON (2) EGLANTIER LTDRESPONDENTS
Before
Mr Justice CharlesLord Gladwin of CleeDate 18 November 1999
[1]APPEARANCES For the Appellant MISS J BROWN (of Counsel) Instructed By: Mr D P Burton Messrs Kirby Solicitors 32 Victoria Avenue Harrogate HG1 5PR For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT MR JUSTICE CHARLES : The parties to the proceedings before the Employment Tribunal where the Applicant therein, a Miss Preston and two Respondents, the first Respondent being a Company called Eglantier Ltd and the second Respondent who is the Appellant before us, a Mr Butler. The appeal before us is by Mr Butler against a finding of an Employment Tribunal sitting at Liverpool on 27 July 1998, the Extended Reasons for which were sent to the parties on 17 August 1998. The decision of the Employment Tribunal was in the following terms:
"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."
[2]Mr Butler appeals against that finding. The first Respondent company does not appeal and one can understand why that is the case. This is because Miss Preston's dismissal was within the three month period before the presentation of the proceedings. I should add that today this Tribunal contacted a Mr Pearson of the Respondent company who sent us a fax, setting out arguments relating essentially to the substantive hearing.[3]The decision of the Employment Tribunal was made pursuant to a direction that there should be a Preliminary Hearing on the following points.(1) To determine if the claim for sex discrimination against the second Respondent, Mr Butler, was presented within the three month time period and(2) To consider if the Applicant had sufficient length of service to claim unfair dismissal. We are only concerned with the first matter.[4]The direction as to what should be dealt with at the Preliminary Hearing is clear and it focuses attention on the claim made against Mr Butler and whether that was in time.[5]As was pointed out by this Tribunal in the judgment given by Mr Justice Lindsay on the Preliminary Hearing, it is far from clear that this is the question that the Employment Tribunal posed itself and decided when the matter came before it by way of Preliminary Hearing. Further this lack of clarity in the approach of the Employment Tribunal is compounded when reference is made to the comments of the Chairman, on the affidavit put in by Mr Butler and those comments are referred to by Mr Justice Lindsay in his judgment on the Preliminary Hearing and are as follows:
"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'."
[6]I turn to deal with some dates. I do so by reference to the IT1. The Applicant in the IT1 makes assertions of sexual harassment against Mr Butler between July and the date upon which she complained about them (namely 16 October 1997). The finding of the Employment Tribunal on the Preliminary Hearing is that the alleged events founding those complaints ended on 14 September of 1997. In her IT1 the Applicant asserted that three months from 16 October, when she made an oral complaint about Mr Butler to a Mr Pearson of the Respondent company, she was given notice terminating her employment. That would date the beginning of the notice as 16 January 1998, but in fact evidence was given before the Employment Tribunal and the finding of the Employment Tribunal is that the notice was given on 16 December 1997, terminating the employment of Miss Preston, the Applicant, on 31 January 1998. The application was presented on 15 April 1998 and thus within three months from 31 January 1998, but outside the period of three months from the giving of the notice on 16 December 1997 and the last occasion upon which an allegation is made by the Applicant that she was harassed by Mr Butler, that being 14 September 1997.[7]A question which stands out from only an examination of those dates is "What connection, if any, does the Applicant assert Mr Butler had with the termination of her employment?". The IT1 is silent as to this and the only allegations in it made directly against Mr Butler are in respect of the period between July and September (or possibly October) 1997, which is well over the period of three months before the claim was presented.[8]In the IT1 the claim is put in this way (and this is in paragraphs 21 and 22 of the supplement to paragraph 11 of the IT1):
"21. I contend that I was treated less favourably on the grounds of my sex by the Company's decision to terminate my employment. 22. Accordingly my claim is for:- (a) A declaration that the respondents unlawfully discriminated against me on the grounds of 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."
The IT1 goes on to state that the Applicant would be serving a Sex Discrimination Questionnaire.[9]The position is therefore reached on those documents that:(1) The Applicant makes allegations against Mr Butler during the period July to October 1997 (or possibly up to September 1997).(2) The Applicant makes no allegation against Mr Butler in connection with her dismissal and I add that, so far as I have seen, no such allegation is included in the questionnaire she served or in the evidence she gave before the Employment Tribunal.(3) Mr Butler asserts that he had nothing to do with the Company after December 1997 and had nothing to do with the Applicant's dismissal. In this context Mr Butler is supported by Mr Pearson of the Respondent company who, in the responses to the questionnaire served by Miss Preston and also in his letter to us of today's date, indicates that the case as he understood it being made by the Applicant was that (and he says this in 18 November letter):
"… this was something I could not comprehend as Miss Preston's action against me, (Eglantier), was on the grounds that I had terminated her employment as a result of her complaint of harassment, by Mr Butler, to me. …"
[10]Therefore understanding of the Respondents and, so far as we can understand from the papers, the nature of the Applicant's case is that her employment was terminated by Mr Pearson on behalf of the Respondent company because of the complaints she had made against Mr Butler.[11]Against that background it is unsurprising that Mr Butler asserted that any claim against him under the Sex Discrimination Act was out of time and one would have expected the matter to be dealt with by the Employment Tribunal, by considering the dates of the acts complained of by the Applicant against Mr Butler and then possibly the issue as to whether or not it was just and equitable in all the circumstances to extend time.[12]In any claim under the Sex Discrimination Act (and particularly when the issue of time limits is being considered) it has been noted in a number of cases that it is important to identify the act complained of. An example of such a decision is Cast v Croydon College [1998] ICR 550. Another is (so far as we are aware) an unreported decision of the Court of Appeal (6 November 1997) in Akhtar v Family Services Unit . In identifying such an act complained of it is also important to bear in mind that in a case where a number of acts are alleged to have taken place and are complained of, they are not all to be taken to have taken place on the date of the last act. If section 76(6)(b) of the Sex Discrimination Act is to apply more than a series of acts is necessary and the general position is that there is a need to establish a policy or practice. Additionally, as is pointed out in the skeleton argument put in on behalf of Mr Butler, there is a distinction to be made between the continuation of the act relied on and the continuation of its effect. I mention those matters by way of background because, although it appears that there was no argument here that section 76(6)(b) applies to emphasise the need to carefully consider what the acts complained of are.[13]The Employment Tribunal correctly point out that the general position when a dismissal is the act complained of is that the date of the act is the date of the dismissal, not the date of the giving of the notice of dismissal. However there might be potential for an argument that if an act complained of was that someone procured that a notice of dismissal be given, that that would be a free-standing act taking place at the date of that procurement, or that that act of procurement should also be treated as taking place when the dismissal took effect. In this case if there was an allegation that Mr Butler procured the dismissal and the correct date of that alleged act was the earlier one (i.e. the date on which the procurement took place) issues as to whether or not it would be just and equitable to extend the time would arise.[14]This discussion in this case is fairly theoretical but I have indulged in it in considering what this Tribunal should do because, if one stands back from this case on the information that we have and on the evidence that was presented before the Employment Tribunal, one can see that there were acts complained of in the period July to September 1997. Also there is a possibility (although nothing stated) that an act complained took place at or shortly before the date of the notice of dismissal (i.e. that it was procured by Mr Butler). In their reasoning the Employment Tribunal take none of these points and simply focus on the act of dismissal. Importantly, they take no account of the point as to what part, if any, Mr Butler had in that act or in the notice which resulted in the dismissal and, so far as one can see from the evidence they had no evidence before them that Mr Butler was in any way responsible for giving the notice or procuring that it was given.[15]It appears from the Chairman's notes that the very limited submission and evidence to pray in aid the ability of the Tribunal to extend time was in the evidence given by Miss Preston. It was that she could not put in her IT1 before mid-April 1998 "because I needed the money ie my February salary. That was the only reason I delayed until mid-April".[16]The approach to extending time under the just and equitable head is that the relevant court or tribunal has to have regard to all of the circumstances. These include the reason for the delay, the nature of the claim and an assessment of the prejudice caused if an extension is given or if one is refused.[17]So far as this appeal is concerned considerable efforts have been made by several people to seek to contact Miss Preston at the address she has given to this Tribunal. In September this Tribunal notified her of the date of this hearing. Those that instruct Counsel acting for Mr Butler attempted to contact her at the end of last week or the beginning of this week and Counsel's Clerk helpfully tried to contact her yesterday. All of these attempts have failed.[18]We are satisfied that the Tribunal erred in law in a number of respects in considering this Preliminary Hearing. First, it did not focus upon the claim against Mr Butler. Secondly, having failed to do that, it then did not go on and identify what the acts complained of in respect of Mr Butler were and thirdly, it does not seem to have gone on to consider any just and equitable extension in respect of the earlier acts or how they were to be connected with the dismissal. Accordingly we allow the appeal.[19]The further issue we there have to decide is whether or not we should remit the preliminary issue identified, namely whether the claim under the Sex Discrimination Act against Mr Butler was out of time to a differently constituted Employment Tribunal or deal with the matter ourselves.[20]We have decided that we should deal with this matter ourselves because, on the face of the IT1 the claim against Mr Butler based on what he is expressly alleged to have done relates to the period ending on 14 September and is well out of time. The only explanation offered before the Employment Tribunal to extend time is the one we have referred to, which does not deal with why an application was not made within three months from September 1997 or October 1997 when the complaint was made. Miss Preston remained in employment throughout that time which may have been a factor why the claim was not issued and one which the court or tribunal would take into account. But having regard to the history of this matter, including Miss Preston's non-appearance on this appeal, in our judgment the prejudice to her of losing the claim against Mr Butler based on the allegations she has made expressly is considerably outweighed by the prejudice to Mr Butler of having to continue to face claims and assertions which he denies, which are now of some antiquity and as to which he would be put to expense as a party.[21]The possible addition to the claim that we have identified (i.e. an allegation that Mr Butler procured the dismissal) would also be out of time unless it is to be treated as taking place when the dismissal took place. But more importantly this claim has not been made and the information before us indicates that Mr Pearson made the decision to dismiss and that decision was not procured by Mr Butler.[22]An additional factor in our reasoning is that the claim remains extant against the Company and, although it is possible that if Miss Preston were allowed to proceed with her and succeed on her claims against Mr Butler based on her express allegations (or the possible claim we have mentioned) Miss Preston might receive additional damages to those awarded in respect of her claim against the company based upon the dismissal should it succeed it is unlikely that the additional damages would be substantial.[23]Therefore having regard to the matters we have identified if this matter were to be remitted, we are of the view that an Employment Tribunal would be bound to conclude that there is no evidence before it to connect Mr Butler to the dismissal and that time to bring claims based on her express allegations should not be extended.[24]Accordingly we have concluded that we should allow the appeal and to dismiss the claims that Miss Preston has made against Mr Butler.[25]To cover the possibility that Miss Preston has received no notice of this appeal, due to some mishap beyond her control or otherwise, what we propose to do is to direct that this Order should not be drawn up until 21 days after a letter notifying Miss Preston of the conclusion that we have reached is sent to her, at her last known address and if in that period of 21 days she notifies this Tribunal that she wishes to apply to be heard on this appeal, the Order should not be drawn up until she has had the opportunity of being so heard. I will also direct that if she makes that application initially it should be made on the basis that Mr Butler need not attend himself or through a representative and she should attend to explain to me why it was that she was not able to attend on this hearing.