Higgins v Fitzgibbon Associates & Anor [1999] UKEAT 1433_98_0803

EAT
Higgins v Fitzgibbon Associates & Anor
[1999] UKEAT 1433_98_0803 · 1999-03-08
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT): This is an appeal in relation to the case of Higgins against Fitzgibbons Associates and Remploy Interwork, case number: 2205519/97. The purpose of this hearing is to determine whether Miss Higgins has an arguable point of law in an appeal which she wishes to make against the unanimous decision of an Industrial Tribunal held at London (North), which concluded that it had no jurisdiction to consider her complaints as they had been presented out of time.Miss Higgins had presented to the Industrial Tribunal on 18 November 1997 an Originating Application complaining of dismissal, discrimination on training and sexual harassment. She named as the Respondents, Fitzgibbon Associates and Remploy Interwork. The events about which she was making complaint had occurred during the course of her employment which terminated on 20 June 1997. Accordingly, her Originating Application had been presented more than 3 months from the dates of the events referred to.The Industrial Tribunal set out with some care what happened after her employment came to an end. They noted that the Applicant was asserting that the real reason for her dismissal on 20 June was not redundancy but rather because she had rejected the sexual advances of her manager. She sought advice immediately following termination of her employment. Between 4 June and 5 September she was in contact with an organisation called Assert, Islington Mental Health Advocacy Project. She spoke on 9 July to Islington Peoples' Rights Advocate and on 17 July she met with the Finsbury Library Law Centre to discuss her problems. On 21 July, she began looking for a solicitor in relation to an incident which involved damage to her hair. On 14 August, she spoke to The Mary Ward Legal Centre and from 20 August, she was in contact with an organisation called Disability Action, Islington. On 10 November, she spoke to Disability Advocacy Network and for the first time, she told the Tribunal, she was advised about the possibility of making a sex discrimination complaint. After she presented her Originating Application, she spoke to solicitors at the Citizens Advice Bureau.The Tribunal said this:
"In essence the Applicant's claim was that none of the organisations prior to the Disability Advocacy Network gave her advice about sex discrimination complaints. She accepted however that when she received her ??? from Assert, who she saw between some time in June 1997 and September 1997, that they noted she had raised the issue of sex discrimination but that she did not wish to take the matter further. They gave her no advice on that issue. The advocate asks us to believe that all these advisers failed to tell her of her rights and that as a result she was unable to present her Originating Application in time. She also asks us to accept that she was too unwell to pursue the matter and that she was adversely affected by the death of two of her grandparents.
The Tribunal indicated that they could not accept that two law centres, experienced in dealing with sex discrimination matters, would not have referred to them if those complaints had been raised with them. Furthermore, they noted that she had informed the Finsbury Law Centre that "her boundaries were invaded" which the Tribunal correctly described as terminology which demonstrates an awareness of sexual abuse and harassment. They went on to say that the advocate was asking the Tribunal to accept that the solicitor she consulted in relation to the small claims against the employment service against Fitzgibbon Associates in relation to her hair, restricted their advice explicitly to the matter before them.Finally, the Tribunal said that they were left with an impression that the Applicant had sought advice as regards problems she encountered at work, but it was not until she consulted with the Disability Advocacy Network that she received the advice she wanted to hear and therefore raised the complaint.They said that although many of the matters were based on an impression formed by the Applicant. Her final assertion relates to a specific approach in her flat by her manager, alleging that he would like to have casual sex with her. If the Applicant had truly encountered a situation like that, it is so explicit that no adviser being made aware of this incident could have failed to advise her as to her appropriate legal remedies.The Tribunal were told by the Applicant that it was because she had now had therapy that she was in a position to bring her claim and articulate what had caused her sanity problems, but the Tribunal did not accept that given that the Applicant also said that she raised matters with the Disability employment adviser with her manager's contract manager and with the Remploy contact at the time or shortly after the sexual misconduct occurred.They said that the Applicant was clearly unwell. However during the whole of the summer of 1997, she felt well enough to seek advice from a number of different bodies in relation to a number of different matters, and she was well enough to give instructions to solicitors to issue proceedings in relation to her hair. It could not therefore be said that she was too unwell to pursue the matter for sex discrimination. If she was well enough to pursue other matter, she was well enough to pursue the sex discrimination complaint.In all the circumstances therefore, the Tribunal conclude that it did not consider that it would be just and equitable to extend time for presenting a complaint for sexual harassment beyond the 3 month period prescribed by the Act. They went on to say that her complaint against Remploy was limited to a complaint under the Disability Discrimination Act. She put forward no explanation as to why she delayed putting in such a complaint. She was seeking advice as they had already found. All of those advisers would have been very alive to the Disability Discrimination Act as it was a new piece of legislation. The Tribunal concluded as the Applicant has put forward no reasons why she delayed from the termination of her employment in June 1997 until 18 November 1997 to present her complaint against Remploy, the Tribunal did not consider that it would be just and equitable to extend the time period."They went on to say in the penultimate paragraph that the Tribunal was conscious that the Applicant suffered from a disability, namely, dyslexia, together with a number of other problems, and then they said this:
"The Tribunal was conscious that dyslexia can inhibit a person's understanding of written material but at the same time the Tribunal noted that the Applicant was a graduate and had the opportunity to observe her giving evidence. She presented as an intelligent and articulate person and had produced the use by the Tribunal, very full information. We do not consider that her disability has in any way hindered or prevented her from presenting her complaint within the prescribed time limit."
On her behalf on this appeal, we have been greatly assisted by the ELAAS representative, Mr Hodkinson. He stated that there was one arguable point and that was that the Tribunal had failed to carry out a sufficient enquiry themselves as to the nature of the disability which they recognised the Applicant was suffering from. Had they carried out such an enquiry, they would or might have been inclined to the view that she was not capable of presenting her case to the Industrial Tribunal. Furthermore, she might not have been capable of presenting her case to the outside advisers to whom reference was made in the decision. He submitted that it was wrong to understand serious dyslexia as involving only a problem in relation to written material. He said that those who suffer from an acute form of this problem will also have difficulty in relation to oral communication. That difficulty would be of understanding in a proper sense of what was being said and responding succinctly and concisely in response. Only in that context could the Applicant fully participate since in order to respond to a question, she herself would need to ask further questions of the questioner. That was not something she felt able to do, bearing in mind her anxiety appearing before an Industrial Tribunal. Accordingly, Mr Hodkinson submitted to us that we should allow the case to go to a full hearing but requiring the Applicant to swear an affidavit as to the nature of her disability and what had happened in the Industrial Tribunal, and exhibiting to that Affidavit any medical evidence. On that basis, we should allow the appeal to proceed.We are not prepared to accede to Mr Hodkinson's admirable submission. It seems to us that the Industrial Tribunal has as is evident from the extended reasons, to which we have made extensive reference, carried out a careful analysis of the circumstances leading to the late application of her Originating Application. They took care to find out precisely what had happened and paid tribute to the manner of Miss Higgin's presentation of the material. There is no indication in this decision that there was any problem in communication, either in her oral evidence and her representations, or in the written material with which the Tribunal was presented. The Tribunal is not expected to have to ask detailed questions about a person's disability if it does not appear to them to be causing any difficulty, and if the person concerned makes no suggestion that they were having any awkwardness or difficulty in presenting their case.As to the suggestion that her difficulty might explain the delay, it seems to us most unlikely that none of the people of whom she spoke as an adviser or potential adviser should have failed to spot her difficulty in communication, if such there genuinely was. It seems to us that the Tribunal have explored sympathetically and carefully the reasons why the Originating Application was presented late and have arrived at a conclusion which is impeccable and cannot be challenged by way of an appeal. Accordingly, for these reasons the appeal will be dismissed.