DEPARTMENT OF SOCIAL SECURITY & OTHERS v MRS SLINDA PHOTAY [1999] UKEAT 724_99_2411

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 724_99_2411Case No Appeal No. EAT/724/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DEPARTMENT OF SOCIAL SECURITY & OTHERSAPPELLANTMRS SLINDA PHOTAYRESPONDENT
Before
Mr Justice LindsayDate 24 November 1999
[1]APPEARANCES For the Appellants MR T DE LA MARE (of Counsel) Office of the Solicitor Department of Health Room 523 New Court 48 Carey Street London WC2A 2LS For the Respondent MS S HUGHES (Solicitor) Commission for Racial Equality 3rd Floor Lancaster House 67 New Hall Street Birmingham B3 1NA MR JUSTICE LINDSAY (PRESIDENT) : This is the appeal by the Department of Social Security ['DSS'] and five named individuals, who are or have been employees of the DSS, against the decision of the Employment Tribunal at Birmingham, which was sent to the parties on 5th May 1999 and dealt with two separate IT1's. In each case, the applicant was Mrs S Photay; all told there were five individual defendants. In one case they were Messrs Walters, Cook, Atherton and Ms Hems as respondents; in the other case there were the same individual respondents but there was added Mr Stevens. The decision, to which we need to refer in greater detail later, was unanimous, and stated:
"(1) the tribunal has jurisdiction to hear the complaints against the first respondent [ DSS ]; (2) the tribunal has jurisdiction to hear the complaints against the 2nd to 6th respondents [ namely, the individuals ]; (3) it does not strike out the application presented on 19 October 1998."
[2]In brief, the decision was as follows; in that Mrs Photay had raised complaints relating to racial discrimination and sexual discrimination. Each of the enactments on which she relied contains a time bar; complaints have to be made within the relatively limited period after the events complained of. The respondents, the DSS and the five individuals, took the point that the claims raised were indeed time barred. A preliminary hearing was arranged to deal with these points as matters of jurisdiction, with the result that we have mentioned.[3]There were two IT1's, as we have mentioned, and in the second of them Mr Stevens is added and the reference to a striking out in the tribunal's decision was reference to an application to strike out the second of the two IT1's.[4]Before going further, it is as well to set out the relevant legislation. Taking the Sex Discrimination Act 1975 as a model; first of all there is s.

(a) :

"An employment tribunal shall not consider a complaint under section 63 unless it is presented to the tribunal before the end of- (a) the period of three months beginning when the act complained of was done; …"
Subsection (5) of s. 76 says:
"A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it just and equitable to do so."
S.

(b) says:

"For the purposes of this section- … (b) any act extending over a period shall be treated as done at the end of that period, … 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 he does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done."
[5]The terms of the Race Relations Act 1976 s. 68(1)(a), s. 68(5), s. 68(6) and s. 68(7)(b) exactly mirror those provisions of the 1975 Act.[6]The tribunal did decide that it was just and equitable to consider the complaints even if, contrary to their primary views so far as concerned the claims against the DSS, they were out of time.[7]It will have become apparent from the structure of the legislation that unless the appellants here can succeed in displacing the holdings of the Employment Tribunal that it was just and equitable for the tribunal to consider Mrs Photay's case against him or her or it, then it matters not whether the complaints were otherwise in or out of time. So that we will deal first with the question of whether there was any error of law in the tribunal's findings as to justice and equity (to use that as shorthand for the consideration that we have referred to in the subsection).[8]The tribunal introduced this subject in their paragraph 91:
"To assist the parties, the tribunal has gone on to consider whether, if it is wrong in this finding, it would consider that in all the circumstances of the case it is just and equitable for the tribunal to consider the applicant's complaints."
This finding there referred to was a finding in paragraph 90 that so far as concerned the complaints against the DSS, they were a continuing act and hence were to be ruled upon as if they had occurred at the end of the period covered rather than at the beginning or at any other stage.[9]The justice and equity of considering a case otherwise out of time is very much a feature best left to the assessment of the tribunal which heard the case. In this case, the tribunal heard it over some three days. Mr De La Mare, for the DSS and for the individual appellants urges that there were a number of important factors that were not taken into account in this decision. What had been said in paragraph 93 was this:
"The tribunal has looked at all the circumstances and reminded itself of the statutory provisions. It has carefully balanced the 3 month time limits provided in section 68(1) of the Race Relations Act and section 76(1) of the Sex Discrimination Act, the applicant's medical difficulties, whether or not a trial of the issues can be fairly carried out, the interests of all the parties, and all other matters adduced before it. Having done this, and subjected the matter to anxious consideration, should it be necessary to do so, the tribunal would conclude that it is just and equitable in all the circumstances of the case for the tribunal to hear the complaints against the first respondent."
For the moment, we will look simply at the case as it concerns the DSS. Mr De La Mare says that Mrs Photay's inactivity over various periods is not sufficiently mentioned, indeed, not mentioned at all. In particular, he says, a gap between June and August 1998 is not dealt with by the tribunal. He says the fact that Mrs Photay was advised by her union (and hence ought to have such knowledge as could be attributed to the union attributed to her) was not taken into account. There are, he says, inconsistencies between Mrs Photay's alleged illnesses and her ability, apparently, to instruct representatives at various junctures in the long chronology. There is plain prejudice to the DSS, he says, and the case is a stale one. These are factors which, he says, are not taken into account by the tribunal in their decision that it is just and equitable to permit the case as against the DSS to go ahead.[10]Insofar as these points were in fact taken below, the tribunal, in effect, although rather somewhat tersely, says it considered them. What they said was:
"93 … and all other matters adduced before it. …"
[11]Moreover, Ms Hughes, on behalf of Mrs Photay, has taken us to several passages of the earlier factual findings in the course of the tribunal's decision, which they must have surely had in mind when toward the end, in paragraph 93, they spoke of "all other matters adduced before it."[12]Conversely, if such matters Mr De La Mare now mentions as undealt with were not raised below, well then, they could not now be raised here.[13]So far as the medical side of things is concerned (and it is to be remembered that paragraph 93 speaks of "the applicant's medical difficulties") it is to be borne in mind that Mrs Photay has been off sick since 8th July 1997 with work related stress, which is obviously a factor which is likely to influence the justice and equity of her being permitted to continue her case.[14]Moreover, we are entitled to have in mind the powerful dictum of Lord Russell of Killowen in Retarded Children's Aid Society v Day that when one comes to analyse a tribunal decision it is not right to jump to the conclusion that what is not expressly mentioned cannot therefore have been in mind. It is fair also to point out that what perhaps is the most important issue of all, namely, to quote from paragraph 93: "… whether or not a trial of the issues can be fairly carried out …" is specifically mentioned by the Employment Tribunal.[15]The assessment of the justice and equity of hearing complaints which are otherwise out of time, is very much a matter, which, so far as concerns factual aspects, is, as we have said, best left to the tribunal itself. We cannot say that they took into account any material which they should not have taken into account. Notwithstanding Mr De La Mare's argument, we are unable to conclude that they omitted from their minds, as opposed to from what they expressly described, any material that they should have weighed in the balance. We see, in fact, no error of law in their conclusion so far as concerns the DSS.[16]Turning then to the individual respondents, they were dealt with in two divisions in effect namely all of them, save Mr Stevens and then Mr Stevens. We adopt the same division. First of all deal with the case as against all the individuals but for Mr Stevens.[17]The tribunal deal with their position in paragraphs 94 to 97. Their position, so the tribunal held, differed significantly from that of the DSS. In paragraph 95 the tribunal says:
"The position of the individual respondents differs from that of the first respondent, in that the acts of the individual respondents were not, in respect of the applications made against them as individuals, continuing acts which are such that the complaints are in time as is provided for in section 68(1) of the Race Relations Act and section 76(1) of the Sex Discrimination Act."
The tribunal then held that as the case against the DSS was going ahead, so ought also that against the individuals, so that they could clear themselves. What the tribunal said was this at paragraph 97:
"… This hearing will involve consideration of the complaints regarding the individual respondents. It is important that they have full opportunity to answer the allegations to be made against them. This has been considered by the tribunal as a factor to be weighed by it, in addition to the other arguments and facts adduced to it. In these unusual circumstances the tribunal does consider that it is just and equitable that the tribunal hears the complaints against the individual respondents as well as the first respondent."
[18]With respect to the tribunal, that reasoning seems to us to be unacceptable. Here we have a feature relied upon by the tribunal which is going beyond assessment of the facts, which is the particular province of the tribunal and which embraces, as it seems to us, false reasoning. The individuals concerned will, if giving evidence in the case, be able, as witnesses, to defend themselves in what, if they are struck out from the case, will then be a case that involves only claims against the DSS. If they are not called to give evidence, then the tribunal will doubtless bear in mind that they have not been in a position to defend themselves and would moderate any findings accordingly. If, as the tribunal seems to have held, concern for the protection of individual respondents is a motivating factor, then surely the greater protection for them is that they should not have any claims against them at all. The tribunal seems here to be saying that so long as an out of time claim against A is permitted to go ahead but involves an attack on B, then it is right that time should be extended also for a claim against B. That thinking is the one factor which the tribunal specifically identifies as one of deserving of express mention in the case of the four individuals. That seems to us to represent an error of law. It may also have neglected to take into account the practical possibility that if Mrs Photay is unable to claim against the four individuals then it may be that she would amend her attack on the DSS so as to no longer to rely as fully as before on the alleged shortcomings of the four individuals.[19]Subject to one remaining consideration, which we shall next mention, we will set aside the tribunal's decision as to the justice and equity of extending time as against the four individuals other than Mr Stevens.[20]That one remaining consideration is this. In reply Mr De La Mare said that in practice - and we can see the force of the point - it will be necessary for the DSS to call all or at least some of the five individuals who are at the moment respondents. For the DSS not to do so, he said, could surrender the case to Mrs Photay.[21]Our setting aside of the decision as to the four individuals is to be conditional upon the DSS offering an undertaking in writing to Mrs Photay's advisers that if it is possible for the DSS to do so and if it is required in writing by Mrs Photay's advisers that such should be done not later than 14 days before the hearing, then the DSS will call as its witnesses such of the four as shall have been so requested to be DSS witnesses by Mrs Photay's advisers. If that undertaking is not forthcoming within seven days after the parties receive the transcript of this judgment, then we would wish to have the matter restored to us for further argument. We consider that such a ruling is a balance both enabling Mrs Photay to be able to extract what she can from her erstwhile colleagues in order to support her case, and yet is a ruling that does not expose those four as individuals to out of time claims, which so far as the tribunal has so far held, do not, in their case, involve any continuing practice or policy or rule of discrimination.[22]Turning to the case of Mr Stevens, he is dealt with in paragraph 98 of the tribunal's decision where it says:
"The tribunal has looked at the case of Mr Stevens separately and although the matter is very finely balanced, it conclude that it is just and equitable for the complaints against him to proceed so that he can have the opportunity to answer the allegations made against him."
That, as it seems, is very close to saying that a tribunal must always extend time so as to enable a respondent to defend the claim against him. That paragraph suffers from, at least, the error in law, which we identified in the case of the other respondents. We set aside the "finely balanced" decision concerning Mr Stevens. But, again, on the like undertaking, mutatis mutandis , as we specified in relation to the other four individuals.[23]A question arises then; do we remit to the tribunal for it to reconsider the extension of time against the individual respondents? We bear in mind that already three days has been spent on jurisdiction without the substantive case yet being in sight. The chief factor identified in favour of extending time to permit claims against the individuals has proved to be unavailable to the tribunal if, at any rate, we are right in law in regarding that consideration as being an error of law. That suggests that, that factor apart, the tribunal would have declined to allow the case to proceed against the individuals. That persuades us that to remit is unnecessary. That being so, given the undertakings that we have mentioned, we simply set aside the decision as to extension of time, so far as concerns the individuals, on the undertaking we have described, but make no remission to the tribunal.[24]We now turn to the striking out application which concerned only the second of the two IT1's. In practical terms, the consideration of this has largely been overtaken by events. Ms Hughes accepts that the second claim is proper to be struck out against four of the five individuals, namely the four who were already parties under the first IT1. She wishes to apply later to add Mr Stevens to the first IT1. But, of course, if the claim against Mr Stevens is barred by time, as we have held, then there is little point in doing that. Mr De La Mare does not oppose that the complainant, Mrs Photay, should be able to ventilate before a tribunal such parts of the second IT1 as are against the DSS but which are not already included in the complaints in the first IT1.[25]The question of the strike out, on that basis, has largely become academic. It seems to us the practical course is to set aside the tribunal's decision (which was not to strike out); to allow the appeal, so far as the strike out as against the four individuals is concerned, indeed, given the fact that there is no point in trying to pursue Mr Stevens, the strike out may as well be permitted to operate as against all five individuals, but that the case in the second IT1 as against the DSS should not be struck out. We leave to the parties later to sort out the inconvenience of having two IT1's; it might be that the better course is to have a comprehensive reorganisation of the pleadings so that, in effect, only one case goes forward that contains all the claims together. It is fair to say that, looking at Mrs Photay's complaints, they are at the moment of the most ill-assorted and rambling nature and it would behove the Commission for Racial Equality, who have taken her case in hand, to spend some time seeking to reduce the claim to workable levels so that the DSS and the tribunal who hears the matters can know precisely what is said to have occurred by whom and against whom and on what dates and so on. Whether that is best left to particulars or to a grand reshuffle of the pleadings, we leave to the parties and to the tribunal to consider.[26]Now that leaves the subject of whether the matters complained of are within s. 76(6)(b) - "acts extending over a period" - and hence are such as to be treated "as done at the end of that period" and hence, in turn, would be such that the IT1's here would be within the three month period prescribed by s. 76(1) and hence, yet again, that the complaints therefore would not need any extension of time for them to be considered by a tribunal. The corresponding Race Relations Act sections are s. 68(7)(b) and 68(1).[27]This is never an easy subject and we have had half a dozen or more authorities quoted at some speed before us. We would embark on an answer to the difficult questions, if we had to, but we do pause to ask whether we have to. Even if the DSS succeeded, in view of our decision as to the justice and equity of the case, it would not assist the DSS at all, because if it loses "justice and equity", as in our view it has done, then success on "continuing acts" would be of no avail to it. The case would still go forward to be heard. So far as concerns the case against the individuals, well then, the appellants have already succeeded. It might be asked, what if Mrs Photay wishes to argue that the individual acts were acts done over a period. Well, as to that, it was held that that was not the case and there is no cross-appeal on that subject. Although, no doubt, the DSS would welcome some guidance in this area, we do not think that it is wise to give such guidance where, first of all, it could only be obiter and, secondly, where the question arises only on a matter arising out of a preliminary question rather than a full holding of the kind that one associates with the substantive hearing itself. We leave this difficult part of the argument to be ruled upon in some case where it truly needs to be ruled upon. That, we think, is the safer course and we do not add to the already large literature in this part of the law. Accordingly, to revert to the tribunal's decision, the appeal as to: "(1) the tribunal has jurisdiction to hear the complaints against the first respondent;" is dismissed. The appeal against: "(2) the tribunal has jurisdiction to hear the complaints against the 2nd to 6th respondents;" is allowed, although we have mentioned the nature of the undertaking that is inherent in our allowing it. We make no remission to the tribunal on that point. As to (3), the strike out, the position is that we set aside the decision as against the individuals, but replace it in the manner that we earlier indicated.