MR D CHEBLI v (1) EUROSTAR (UK) LTD (2) MR S BROOKS [1999] UKEAT 307_99_1406

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 307_99_1406Case No Appeal No. EAT/307/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D CHEBLIAPPELLANT(1) EUROSTAR (UK) LTD (2) MR S BROOKSRESPONDENT
Before
His Honour Judge J Altman Mr D J JenkinsDate 14 June 1999
[1]APPEARANCES For the Appellant MR D HARRIS (Representative) Instructed by: Mr M Bradbury Nominated Caseworker Lesbian & Gay Employment Rights Unit 1G Leroy House 436 Essex Road London N1 3QP JUDGE ALTMAN : This is an appeal from the Employment Tribunal sitting at London (South) on 7th, 8th, 9th and 10th December 1998, in which they dismissed ten complaints of unlawful sex discrimination. As to the first eight of those they found that they had no jurisdiction to consider them because they were out of time; as to the remaining two they found that the allegations did not amount to sexual discrimination and that even if they did they had no consequence relevant to their final decision. The appellant was in the course of working a probationary period for the respondents when this matter first came to light. In due course, he was dismissed and it is following his dismissal that these complaints arise.[2]The appellant began work on 23rd June 1997, his employment was terminated on 14th January 1998 and he was probationer throughout that period.[3]I refer to the first eight complaints:(1) The first refers to a complaint, which was in two parts, being comments by two women. The first, the tribunal found was on 15th September 1997 and the second they found to be at the latest 25th September 1997. It is unnecessary for us to set out the actual terms of these comments. There are a large number of them. They relate to what has been loosely generalised in the course of the proceedings under the heading of "descriptions of effeminacy" on the part of the appellant. They were, so far as we can judge, wholly outrageous and it is a bit surprising in relation to some of them that at the time they were relayed to management, management did not take any action about them, but possibly felt that the best thing to do was to ignore them.(2) The next is a complaint of failing to deal with those comments and the tribunal found as a matter of fact that the latest date upon which that failure could have occurred was 25th September 1997. Complaint has been made in this appeal that the tribunal should have found that failing to act as existing over a period of time as a continuing act of discrimination. But that was dealt with by the Employment Tribunal in that they found in paragraph 20(v) that the only continuing consequence was that the comments remained on the file. They found that that could not be turned into a continuing act simply by using phraseology such as "allowing" or "permitting". The act of putting the comments on the file they have identified as a point of time. Of course the failure to deal was a failure to deal with, vis-à-vis, the women who had made the comments and not of any broader kind.(3) The third complaint related to an incident, a comment again, having been made on 18th December 1997 in which a request for feedback was made and that was at a specific date.(4) The fourth was a reply from an employee to that request, dated the same date.(5) The fifth was an allegation flowing from that, that the respondents failed to deal with that comment, but the tribunal found that the last date for that was the 23rd December 1997 and they dismissed any suggestion of a continuing act in the way to which I have already referred.(6) The sixth complaint related to a review conducted by management of the appellant's performance on 23rd December 1997.(7) On the same date there was an allegation of failing to deal with an earlier comment, a reiteration of failing to deal on that date with comments earlier referred to.(8) The eighth and final complaint in this group was the act of extending the probationary period, presumably as an alternative to full permanent employment, and the date for that was 23rd December 1997. It is complained that that was also a continuing act, but, the same point remains; the decision to extend took place on a particular date and the tribunal so found.[4]In the Employment Tribunal's decision, having analysed with some care all those various matters, the tribunal directed their attention to the law on the matter. They identified, as I have reiterated, the dates of the allegations relied on by the appellant and they found that the complaint was not made within the three months time limit set out in section 76 of the Sex Discrimination Act 1975 , the Originating Application being dated 8th April 1998 and received at the office of Industrial Tribunals (as it then was) on that date. That is the application of clear legal provisions to the facts as the tribunal found them.[5]The tribunal then went on to consider, bearing that in mind, whether they should extend that time in accordance with the discretion they have under statute. The tribunal found that the appellant did not discover about these matters until 7th January 1998; they found that the appellant was not dismissed until 14th January 1998; and they found that he could not be criticised for not raising the matters during his employment.[6]The tribunal then went on to consider the subsequent period of time and they analysed what took place in paragraph 22 of their decision. The appellant went on the very date of his dismissal to an advice centre; he returned there a week later and saw an adviser to whom he showed the documents he had been able to photocopy which contained the comments to which I have referred; the adviser took advice himself and wrote on 29th January 1998. However, the appellant then went on holiday until 1st March 1998. He then went to see the advice centre again, he went on to another centre; and it was not until 8th April 1998 that the Originating Application was sent to the tribunal office.[7]On that basis, the Employment Tribunal exercised their discretion and they came to the conclusion that they should not extend the time. They said:
"24. … the Tribunal notes that the Originating Application was not presented for over three months after he became aware of those facts. …"
Bearing in mind all the circumstances, the tribunal decided not to extend the time. However, in doing so, they noted that all those matters formed part of the remaining two allegations of unlawful sexual discrimination.[8]We find that it cannot be reasonably argued that the Employment Tribunal in their approach to both their findings of fact and in the application of legal principle to those facts committed an error of law such as to provide the basis of an arguable appeal. Accordingly we dismiss the appeal on those grounds at this stage.[9]I turn now to the remaining two allegations of discrimination which come before us by way of preliminary hearing today. The first relates to a decision about an allegation of lack of training, support and supervision, and the second relates to the decision to dismiss.[10]In their decision the Employment Tribunal set out the arguments of the parties. They referred back to the various comments and the tribunal came to its judgment. It seems to us that they approached this matter as if it were a matter of gender orientation, and came to the conclusion that it was not a matter of gender or sexual orientation as discrimination.[11]Before the Employment Tribunal the respondents argued that the correct approach to deciding whether or not there was sexual discrimination was to determine whether there was a comparator and to define that comparator. The appellant argued that the allegations of effeminacy were gender specific and therefore not a matter for the requirement of a comparator.[12]The respondents said that it was rather like sexual orientation. The appellant said it was rather like sexual harassment.[13]The Employment Tribunal appear to have elided the question of effeminacy with that of homosexuality in response to the submissions of the respondents as to the dictionary definition, but we do not understand that that is a correct rendering of ordinary definitions of those terms. Therefore, it seems to us, there was before the tribunal a clear argument as to whether or not a comparator was necessary.[14]The tribunal having rejected the submissions of the appellant, they then went on to consider the definition of a comparator. In paragraph 35 of their decision they said:
"The Tribunal is of the view that the appropriate comparator in this case is either a woman who displays characteristics of the opposite sex … or, simply, a woman."
[15]In the light of that definition, the tribunal considered the two complaints. As to the ninth complaint, they said this:
"36. … The tribunal is satisfied that there is no evidence from which the Tribunal could find that either a woman displaying male characteristics or any woman would receive more less or any different training than the training actually given to the Applicant. In those circumstances the Applicant's ninth complaint fails because the Tribunal does not find that there was a discrimination."
[16]The tribunal then went on deal with the tenth complaint, which was that the dismissal was connected to, or caused by, the various sexually specific comments made in the feed-back memoranda. They found that the argument put forward by the appellant was either(i) that the various comments would not have been made in the first place but for dislike of/prejudice against the appellant due to his perceived effeminate characteristics and that those adverse comments influenced the decision to dismiss the appellant, or(ii) those involved in the discussion leading to the decision to dismiss the appellant were prejudiced themselves against a man displaying such characteristics and used the adverse comments to support a discriminatory act.[17]The tribunal then set out their conclusion in paragraph 38. They referred to the opportunity of a further probationary period in full knowledge of the comments that had been made and they go on to say:
"The Tribunal considered carefully all of the evidence and concluded that there had been considerable doubts expressed throughout the Applicant's employment as to his performance, in particular in relation to his inability to communicate clearly and problems with working under pressure, and the Tribunal is satisfied that the termination of the Applicant's employment arose solely as a consequence of his performance with the "out of uniform" incident being the final straw against the background of the Applicant's performance record."
I pause to point out that this last incident was a disciplinary matter, which followed from the appellant's working without his uniform on one occasion. The tribunal went on to say:
"The Tribunal accepts the reason given for the termination of the Applicant's employment and does not find that the feed-back comments were instrumental in the termination of the Applicant's employment. …"
[18]Finally, and returning to the issue of whether or not the tribunal should have found that the first eight complaints were in time, Mr Harris, who has addressed on behalf of the appellant, submits that the tribunal should have looked at whether or not there was a discriminatory practice to be inferred from the various comments continuing over a period of time. That does not appear to have been a matter that was specifically taken before the Employment Tribunal, but they did look at matters of continuation, it seems to us, in any event, and that point does not seem to us to arise for argument.[19]We are satisfied that there are arguments of law which emerge from the issues raised before the Employment Tribunal including the definition of comparator and whether these matters are properly described as gender specific so as to obviate the need to investigate the position of a comparator. However, it seems to us that we must look at the consequences of those interesting points on the decision itself.[20]We are satisfied that the Employment Tribunal based their decision ultimately on the judgment that the actual reasons for dismissal and the elements of training, support and supervision had nothing to do with sexual discrimination from whatever source. It seems to us, therefore, that even were the appellant to succeed in arguing the points of law, which have been urged before us in relation to whether the matters were gender specific or whether the comparator was correctly defined, this could have no bearing upon the Employment Appeal Tribunal's response to the decision of the Employment Tribunal which was based on other reasons. The Employment Tribunal, upon all the evidence, made a finding of fact, which was that the decision to dismiss and the elements of supervision, training and support was a separate matter and had nothing to do with any possible sexual discrimination. That is not a matter of law.[21]Mr Harris sought to argue that had they approached the legal test differently the Employment Tribunal might then have viewed the evidence differently. Being realistic and looking at what the tribunal found, we can find no substance in that whatsoever.[22]Accordingly, we have come to the conclusion that there is no arguable point of law to justify this appeal proceeding to a full hearing before the Employment Appeal Tribunal and we therefore dismiss it at this stage. JUDGE ALTMAN : We have been asked for leave to appeal to the Court of Appeal. It is true that we found that there were arguable points of law within the reasons of the Employment Tribunal. However we also found that however those points were resolved, they did not affect the final decision, which was on the basis that dismissal was due to conduct and capability. It is well established that on a preliminary hearing the Employment Appeal Tribunal will not list for hearing an arguable point of law, which cannot affect the final outcome. That was the basis of our decision and leave to appeal is refused because there does not seem to be an arguable point of law with a reasonable prospect of success on that issue.