MRS D CANNIFFE v EAST RIDING OF YORKSHIRE COUNCIL [2000] UKEAT 1035_98_1704

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 1035_98_1704

Case No Appeal No. EAT/1035/98

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS D CANNIFFEAPPELLANT

EAST RIDING OF YORKSHIRE COUNCILRESPONDENT

Before

Mr Justice Burton Mr I Ezekiel Mr P M Smith

Date 17 April 2000

[1]APPEARANCES For the Appellant MISS K MONAGHAN (of Counsel) Instructed by: Humberside Law Centre 95 Alfred Geldes Street Hull HU1 1EP For the Respondents MISS M MacPHERSON (of Counsel) Instructed by: Legal Services East Riding of Yorkshire Council County Hall Beverley East Yorkshire HU17 9BA MR JUSTICE BURTON : This is an appeal against the unanimous reserved decision of the Employment Tribunal at Hull when it dismissed the applications by the Appellant, both in respect of sex discrimination and disability discrimination against the Respondent, East Riding of Yorkshire Council, her then employer. I shall deal separately with the questions of disability discrimination and sex discrimination, and deal first with the question of disability discrimination.

[2]There is no doubt at all that the primary complaint which this Appellant had was in respect of the sexual harassment that she underwent at the hands of a Mr K, which resulted in the dismissal of Mr K after an investigation by the Respondent, and that formed the basis, as I shall explain, of her application by way of sex discrimination against the Respondent, who accepted vicarious liability for the acts of Mr K. But there was in addition an application by the Appellant, who is profoundly deaf, in respect of failures by the Respondent in relation to that disability.

[3]It appears that there was some case put forward below by way of an allegation of breach under section 5(1) of the Disability Discrimination Act 1995 ['the 1995 Act'], but, insofar as that case was put forward at all before the Tribunal and we are not entirely clear about that, and insofar as the Tribunal dismissed such a complaint, we are satisfied that there was no Notice of Appeal put forward in that regard. Early in this appeal we refused the Appellant's application for leave to amend her Notice of Appeal and/or for a ruling that an appeal in respect of a failure by the Tribunal adequately to deal with a complaint under section 5 was already covered, without amendment, by her Notice of Appeal. We refused her application on both those grounds and consequently it has not formed a substantive part of this appeal.

[4]What did go forward by way of appeal was her complaint that the Employment Tribunal erred in dealing with her complaint under sections 5(2) and 6 of the 1995 Act. This arose out of a number of adjustments which the Appellant requested the Respondent to introduce over a period of time. The structure of the Act is briefly as follows, that by section 5(2) it is provided:

"(2) For the purposes of this Part, an employer also discriminates against a disabled person if- (a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and (b) he cannot show that his failure to comply with the duty is justified."

I interpolate to say that the issue before the Employment Tribunal did not relate to whether any failure was justified, as to which no case was put forward, but as to whether there had been a failure to comply. Section 6(1) of the 1995 Act provides:

"(1) Where- (a) any arrangements made by or on behalf of an employer, or (b) any physical feature of premises occupied by the employer, place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect."

Section 6(3) sets out examples of steps which an employer may have to take and section 6(4) provides:

"(4) In determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (1), regard shall be had, in particular to- (a) the extent to which taking the step would prevent the effect in question; (b) the extent to which it is practicable for the employer to take the step; (c) the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities; (d) the extent of the employer's financial and other resources; (e) the availability to the employer of financial or other assistance with respect to taking the step."

[5]The Employment Tribunal made findings in paragraph 7(l) of its decision as to what steps were taken by the Respondent belatedly to address all the issues raised by the Appellant, and those are set out at (i) to (vi) of that paragraph.

(m) :

"We were not able to find that the Applicant has been so disadvantaged by her disability that it has prevented her from doing her job effectively or from being considered for promotion or advancement with the Respondent."

This was either a somewhat inadequate dealing with the complaint made under section 5(1), to which I have already referred, or was to be regarded to be part and parcel of the conclusions that there had not been a breach or a failure to comply with section 6(1).

[6]In paragraph 9 the Tribunal concluded as follows:

"… we are clear that there may have been discrimination prior to the coming into effect of the legislation, and that there may have been an ongoing failure on the part of the Respondent to make adjustments for what we find was a substantial disadvantage to the Applicant in being profoundly deaf. But the requirement on the Respondent is that contained in s.6(1) which it to take such steps as is reasonable, in all the circumstances of the case, for him to have a take in order to prevent the arrangements or features having that effect. Clearly, the complaints about which the Applicant makes are those in the nature of s.6(3)(h) in acquiring or modifying equipment, but we have looked at that in the light of what is reasonable in all the circumstances of the case and also have had regard to those particular items listed at s.6(4) as factors to which regard shall be had including paragraph (b) the extent to which it was practicable for the employer to take this step and (c) the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities. We consider that the response of the Respondent in dealing with these matters has been slow, but that it has responded in the ways indicated in our findings of fact and that the steps taken were not unreasonable in the circumstances of the case which include both the long absences from the place of work by the Applicant, who has really been present at work for only some four months out of twelve months since the coming into effect of the DDA on 2 December 1996, and with whom it was necessary to have consultation in conjunction with the Occupational Health Unit to establish the steps which might reasonably be taken to assist her. Had she been at work throughout the period and this degree of slowness in responding to the statutory obligation had been there, then we may well have taken a different view and have considered that the steps taken by the Respondent were not reasonable. But in these circumstances we consider that we are unable to take such a view. It is clear that steps to address her problems have now been made and that there are continuing steps being made and that this will be a continuing process of re-appraisal. That there may have been a lack of awareness of her problems is evident, but this is also to be seen in the context of the time that the Applicant spent in the workplace and of the very real steps that have now been taken to assist her."

The Tribunal conclude further in paragraph 10 that:

"very real endeavours have now been made by the Respondent to address this practical problems that the Applicant has, by virtue of her disability. On this basis we are not satisfied that the Respondent has failed to make such reasonable adjustments as are required by the legislation, or has allowed the Applicant, in the context of her kind of work, to be treated less favourably than it would treat others who do not share her disability."

[7]The Appellant complains that the setting for the finding of disability discrimination is in paragraph 3 of the Tribunal's decision, in which it refers to King v Great Britain China Centre

[1991] IRLR 513

at 518, and the guidance there given by the Court of Appeal. It indicates that that guidance related to discrimination on the grounds of race, but concluded that the principles remained the same. It is certainly right to say that those principles apply to cases involving sex discrimination, although as Miss Monaghan has pointed out, perhaps not relevantly so in this case, where the only issue, as we shall consider in due course, was section 41(3) of the Sex Discrimination Act 1975 ['the 1975 Act']. It does not appear, although we make no concluded decision today, that the guidance in King does a great deal to assist a Tribunal in relation to any questions involving disability discrimination, but certainly not to the question as to whether there has been a breach of sections 5(2) and 6(1) in the light of sections 6(3) and 6(4). But we conclude that the unnecessary recitation of the King principles, did not, in this case, not least because they first considered sex discrimination and then returned later to consider the question of disability discrimination, cause any error on the part of this Tribunal. This Tribunal, it appears to us, addressed, properly and sensibly, the questions which were, centrally on disability, whether there had been a failure to comply with requirements under section 6. The findings, which we have recited, make it clear that they were considering the proper questions in the proper order.

[8]Complaint is made by Miss Monaghan of the use of the words "not unreasonable" , but that, it seems to us, only reflects the fact that the onus of proof is on the Appellant. The position here simply is that the Tribunal was satisfied that there was a duty on the employer to make adjustments, but that it concluded that such steps had been taken, albeit belatedly and sufficiently so, taking into account the factors to which it expressly refers in section 6(4). We do not conclude that there is any error of law in relation to the way in which this Tribunal dealt with the question of disability discrimination.

[9]We turn to sex discrimination. It appears on the evidence of the Appellant that Mr K subjected her to serious assaults or threat of assaults over a relatively lengthy period of time. The Tribunal however concluded, in an interlocutory decision which has not been appealed, that the only incident of harassment of that kind of which she could make complaint before the Employment Tribunal, because of the time limits involved, was that which occurred in September 1997. She was, it seems, off work ill between January and June 1997 and the first and only such incident after her return to work was in September. As I indicated earlier in this judgment, the Respondent accepted vicarious liability in respect of the behaviour of Mr K.

[10]The only issue therefore before the Tribunal was whether the Respondent was able to take advantage of the defence available to it under section 41(3) of the 1975 Act. I read section 41 insofar as it is material:

"(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval. … (3) In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence of that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description."

Miss Monaghan submitted to us, and we accept, first, as I have already summarised, that the dicta in King were not specifically relevant to a case in which the only issue was whether the Respondent could take advantage of that defence. We do not consider that it was necessary, in those circumstances, for this Tribunal to recite the well known dictum, but that no harm has been done by its doing so. Secondly we accept that the construction of the 1975 Act should be approached purposively, by virtue of the words of Waite LJ in Jones v Tower Boot Co Ltd

[1997] IRLR 168

at 171, and broadly.

[11]The facts which were canvassed before the Tribunal occurred in somewhat strange circumstances. It appears that the Tribunal made witness orders for the Appellant to be entitled to call certain witnesses who were in fact the Respondent's employees. The result was that the Appellant called witnesses whom the Respondent would otherwise have been in a position to call and/or would have called. These witnesses included a Mr Dennet, Mr Gregson and a Mr Elder as well as a Mrs Martin. The Appellant gave evidence as did those witnesses. Because the Appellant called those witnesses she was not in a position to cross-examine the witnesses and was thus left with the evidence they had given as her evidence. The Respondent was in a position to cross-examine those witnesses, but insofar as those witnesses did not come up to proof or say that which the Appellant would perhaps have expected them to say, the Respondent was naturally not going to cross-examine them into saying things that they had not said. At the close of the evidence for the Appellant the Respondent looked at the evidence, concluded that the witnesses that they would have wished to have called had largely being called, in those favourable circumstances, on behalf of the Appellant, and consequently did not call evidence themselves. This is not a case similar to that which has been adverted to in other cases where the Respondent calls no evidence, and puts the Appellant to proof; this is a situation in which the Respondent has effectively had called for it evidence which it would otherwise have called, and at the close of the Appellant's case the corpus of evidence is there on which it seeks to rely, and that is the evidence, coupled with the documents in the agreed bundle, before the Tribunal. It appears that there were certain documents which were in the bundle, all of which related to the sex discrimination case, which the Appellant would have wished to have referred to in her closing speech and which the Tribunal refused to read on opposition being made to it by the Respondent, on the basis that the documents had not been adduced in evidence specifically by witnesses, notwithstanding that it had not become clear until the close of the Appellant's case that the Respondent would not in fact be calling any witnesses.

[12]We make no criticism of the way in which the evidence was called before this Tribunal, for reasons which are already clear from my description as to what occurred. It may well be that the whole problem arose as a result of the making of the original witness orders which would have been probably better not made, so that the Respondent could call their own witnesses themselves. But what we do say is that we find it very difficult to understand, leaving aside the question as to whether witnesses were expected to be called or not, how it can be that documents in an agreed bundle could not have been permitted to be put before the Tribunal at the end of the hearing. Whether those documents would have been strictly admissible in the High Court, and it may well be that even in the High Court that they would have been, it seems to us certainly that they would have been sufficiently admissible to be put into evidence and relied upon in a closing speech in the Employment Tribunal. But in the event, it has become clear, as a result of the submissions of both parties before us, that no harm was done, and the documents which have now been identified as being those which the Appellant would like to have referred to below do not in fact go to any issue of any substance.

[13]I turn then to the issues that have been put before us. Miss Monaghan submits that the Tribunal asked itself the wrong questions. It concentrated wholly, as she submits, on the question as to whether anything that the Respondent did or could have done would have made any difference. In particular, reference is made to the words in paragraph 8:

"We failed to see that any better implementation of such policies would have any effect in relation to the very serious criminal behaviour perpetrated upon the Applicant."

The consequence of such approach by a Tribunal, Miss Monaghan submits, is twofold: (1) It is an incorrect approach to the statute in any event because it seeks to rewrite the statute by saying that the Respondent, who is otherwise vicariously liable for acts of sex discrimination, will be able to take advantage of the defence if it shows that anything it did or did not do would not have made any difference, which is not what the statute says. (2) In practice, Miss Monaghan submits, the result of such approach is that the worse and more unusual the conduct, albeit because of the wide interpretation as a result of Jones v Tower Boot Co Ltd of the 'course of employment' the employer will be found vicariously liable for it, the easier it will be for such an employer to take advantage of the defence under section 41(3). That, Miss Monaghan submits, and we accept, does not appear to be right on either head.

[14]We are satisfied that the proper approach is:(1) to identify whether the Respondent took any steps at all to prevent the employee, for where it is vicariously liable, from doing the act or acts complained of in the course of his employment;

(2) having identified what steps, if any, they took to consider whether there were any further acts, that they could have taken, which were reasonably practicable. The question as to whether the doing of any such acts would in fact have been successful in preventing the acts of discrimination in question may be worth addressing, and may be interesting to address, but are not determinative either way. On the one hand the employer if he takes steps which are reasonably practicable will not be inculpated if those steps are not successful, indeed, the matter would not be before the court if the steps had been successful, and so the whole availability of the defence suggests the necessity that someone will have committed the act of discrimination, notwithstanding the taking of reasonable steps; but on the other hand the employer will not be exculpated if it has not taken reasonable steps simply because if he had taken those reasonable steps they would not have led anywhere or achieved anything or in fact prevented anything from occurring.

[15]Miss MacPherson on behalf of the Respondent, submits that in fact the Tribunal, albeit that it did address the question of whether anything that was done could have in fact prevented the Respondent, did ask the right questions notwithstanding. As a result of putting together both their submissions, we can set out in this judgment the area of dispute between them.

[16]First, the Tribunal did address the question of the existence and dissemination of policies in respect of personal harassment. Miss Monaghan has submitted that insofar as there was a policy in respect of personal harassment, it did not come into force until May 1997 and that on an assessment of the evidence by reference to Notes of Evidence, which were provided to be given for the purposes of this appeal, it cannot be said that the harassment policy was expressly drawn to the attention of either the Appellant or Mr K.

(h) , namely:

"The Respondent has a Disciplinary Procedure, a Grievance Procedure and a Personal Harassment Policy. We were satisfied that the nature of these had been explained to the employees. "

Was not an conclusion which was open to the Tribunal to find on the evidence. Alternatively, was an insufficient conclusion because there was no conclusion that it had been revealed and explained to material employees, in particular to Mr K and the Appellant. Indeed in the next sentence the Tribunal go on to say:

"We do however accept the Applicant's evidence that she may not have been aware of the Personal Harassment Policy and that this may have been due to her absence when the policy was first introduced."

[17]Miss MacPherson however, has drawn our attention to the fact that the Personal Harassment Policy, albeit not formally implemented until May 1997, was in existence and indeed Miss Monaghan so accepts, in draft form at the very least in April 1996. Further, Miss MacPherson has drawn our attention to the Staff News of April 1996 which makes it clear that the existence of the Personal Harassment Policy was publicised generally to employees by the Respondent at that time. Further, there was evidence given, which, Miss MacPherson submits, the Tribunal was entitled to accept, by Mr Gregson, that the policy was referred to employees at team meetings. In those circumstances, Miss MacPherson submits, not only was there evidence to support the conclusion by the Tribunal, but that the nature of the conduct of the Appellant, to which the Tribunal drew specific attention as being very serious indeed, must be such that in fact he would not have needed a specific drawing to his attention of the policy in order to know how serious it was, how prohibited it was and how much to be avoided it was. Indeed, Miss MacPherson draws to our attention the fact that the Appellant herself gave evidence that Mr K told her he knew that he could lose his job as a result of what he was doing.

[18]In those circumstances, it is clear that the Tribunal did make a finding that the Respondent did do something, namely have a policy, and did draw it to the attention of employees; and if this had stood alone it would have been possible for the Respondent to be able to say that they did all that was required of them, and that no one could have, in this case, have suggested, nor could it be suggested, that any better dissemination of the policy would have made any difference in terms of stopping Mr K from doing what he did.

[19]The second area of fact relates to what was described, it seems on the Appellant's behalf at the Tribunal, as a culture; a culture in which complaints would be trivialised and in which conduct could be allowed, consequently, to get out of hand.

(j) , where it says:

"(j) It is also part of the Applicant's case that the Respondent allowed a culture to exist in the workplace, where complaints would be trivialised. We are not satisfied by the response shown by the Respondent, once these serious matters were brought to its attention, or from the evidence from the evidence of the other employees called by the Applicant, that this was the case …"

There was plainly evidence before the Tribunal from a number of employees, but primarily it seems from Mrs Martin, a colleague of the Appellant, suggesting that this kind of behaviour, although nothing of course like as serious as that which in effect was accepted to have occurred in respect of Mr K, was not infrequent with the employers. On the other hand there was evidence given by the witnesses, those called in the circumstances that I have referred to by the Appellant, by whose evidence she was thus bound, that the kind of thing that occurred was no more than banter which nobody took seriously or by which no one was upset. If that was all it was, as indeed it was on the findings of the Tribunal, then there was no need for the Respondent to take any steps in relation to it, apart from having the policy and disseminating it, and consequently the Tribunal could not be criticised in failing to make a finding that the Respondent did not take such steps as were reasonably practicable in relation to stemming a culture which they found not to exist.

[20]The third area of fact is one, however, which is considerably more significant in relation to the evidence. The evidence, given by the Appellant, was that she had in fact confided, at a date which has never been clear to a friend of hers, Mr Dennet, as to what had occurred, so far as Mr K was concerned, and it seems, although again this is not entirely clear, that she says she had done so on a number of occasions, and indeed, disclosed to him each of the incidents that had occurred. I interpolate at this stage to make clear that Miss Monaghan has submitted, and Miss MacPherson has not challenged the submission, that although the earlier incidents such as there may have been were not entitled to be complained of on time grounds, so far as a claim for compensation is concerned, clearly their existence is relevant to the issue as to what steps by way of prevention of the incident that eventually occurred in September 1997 could or should have been taken by the Respondent. It appears that the unchallenged evidence was, again unchallenged because it was given by Mr Dennet as a witness for the Appellant, that he having been told of such matters as he was told in confidence, concluded that it was not appropriate to break that confidence, but he advised the Appellant that she ought to take steps to report the matter to her direct superior, but took no further step. The Tribunal accepted that evidence.

(i) , they make the following finding:

"(i) It is part of the Applicant's case that she had made complaints about Mr X on occasions of earlier incidents to those with which we are … now concerned. She made these complaints to her then Shift Controller with Humberside County Council. We accept his evidence that he made her aware of the steps she could take to bring a formal complaint and that he was instructed by the Applicant to treat the information she gave him as confidential and not to take matters any further. The Shift Controller concerned is also employed by the Respondent, but has not since 1995 been employed in a position involving any supervisory role in relation to the Applicant. He remains somebody, however, to whom the Applicant had access and who has helped her in the past, both with problems at work and her personal problems."

[21]Apart from Mr Dennet, some evidence was given in relation to two other gentlemen employed by the Respondent. It was suggested that Mr Elder had known at least of the kind of way in which Mr K behaved, if not of any suggestion that he so behaved in relation to the Appellant, and that he had known of such for some time. Mr Elder gave evidence to some such effect at the Tribunal hearing, as I have indicated on behalf of the Appellant. Mr Duncan, it seems, did not give evidence for the Appellant and was not called by the Respondent. There was again an assertion, but no more it seems, by the Appellant that Mr Duncan knew or must have known of the kind of person that Mr K was, and may have known about inappropriate conduct by Mr Kay towards the Appellant. The Tribunal made no findings in relation to Mr Duncan or Mr Elder.

[22]It appears to us, given the context of section 41(3), the requirement under Jones v Tower Boot Co Ltd to apply a purposive construction and the serious nature of the kind of allegations made in this case, that it is important that a Tribunal carrying out its function under section 41(3) should be careful not to skip over any stages. It appears to us that the Tribunal has found that the Respondent took some steps and was satisfied that those steps that the Respondent had taken were reasonable. The Tribunal has not however asked itself the missing question, which is were there any other steps which could reasonably have been taken which the Respondent did not take? It appears to us that there is or could be a very substantial difference between two different scenarios at the workplace. One is where there is no knowledge on the part of employers or managers of risk of any harassment or inappropriate sexual behaviour by an employee, or indeed in particular by one employee towards another particular employee or employees. In those circumstances it may well be sufficient for there to be adequately promulgated a sexual harassment policy, particularly where it can be said that when a one-off incident occurs of a seriousness of the kind that occurred in this case, it must in any event have been known to any employee, never mind a reasonable or honest employee, that the conduct could not possibly be condoned or encouraged by employers. In those circumstances, it may be sufficient for the question simply to be addressed as to whether there was a policy and whether it was promulgated without more. There may, however, be an entirely different situation in which there was knowledge or suspicion in relation to a particular employee of his own predilections or temperament, and certainly of a risk that he might commit inappropriate acts towards a particular employee or particular employees. In this case, there was such a possibility, but the Tribunal did not, in our view, adequately address that possibility or ask itself the right questions. It may well be that on a proper consideration of the position of Mr Dennet and/or Mr Elder and/or Mr Duncan, it could be concluded that there was nothing more that those gentlemen could or should have done that was reasonably practicable to do. On the other hand it may well be that on a proper consideration it would be concluded that, because of the failure of those gentlemen to take any further steps, the Respondent who is vicariously liable for them, should be held not to have taken such steps that were reasonably practicable to prevent the kind of conduct which eventually occurred in September 1997. So far as Mr Dennet is concerned, there is the problem which the Tribunal recognised that he was a personal friend of the Appellant and was told matters in confidence and expressly on the basis that she did not want to complain. There is the further problem that we are unclear as to precisely when this incident or incidents of confiding took place. For example, it may well be that all the incidents of confiding took place in 1995 and that there were no more such incidents after April 1996 when, for the first time, this Respondent became the responsible employer. If that were the case there may be greater difficulty in suggesting that there was any failure by this Respondent or failure by Mr Dennet for which this Respondent could be vicariously liable. In any event, we are not at all saying at this stage, without further consideration, that Mr Dennet can be said to have failed. But it appears to us that there has been an inadequate consideration as to what Mr Dennet could or should have done. For example, he appears to have been line manager for Mr K. Could he or should he have taken steps to warn or at any rate to watch, Mr K thereafter, without notifying him necessarily of the complaint that had been made by anybody, never mind notifying or identifying him of the complaint coming from the Appellant? Could he or should he have taken steps to notify his fellow managers or the line manager himself of the Appellant, or his superiors, again perhaps on a no-names basis? Alternatively, is that asking too much of Mr Dennet, given that he was in fact only involved because he was a personal friend of the Appellant? So far as Mr Elder and Mr Duncan are concerned, the matter would need to be explored as to what steps, if any, they could or should have taken, in particular by way of ensuring a greater supervision of Mr K thereafter, or taking more notice of his apparent propensities so as to give him some warning or other. It may well be that on a proper consideration it will be found that there was nothing more that was reasonably practicable that this Respondent could have done, but we are not satisfied at the moment that the proper test was applied, which is, as we have indicated, a test which involves the questions:(1) what steps were taken?

(2) were there any further steps that were reasonably practicable that should have been taken and could have been taken by the Respondent? and in that context and that context alone, it would be relevant to ask whether any such further steps would have been of any consequence or have had any realistic chance of success. But even if they had not had any realistic chance of success, if in fact it was reasonably practicable for them to be done, they should have been done. That is the purpose of this legislation, and that is the difficult eye of the needle through which a Respondent employer who seeks to avoid a vicarious liability must travel in order to avoid that liability.

[23]In those circumstances, we conclude that the decision of the Employment Tribunal that the Respondent was able to take advantage of section 41(3) is ill-founded. But we are unable to say that on a proper consideration of all the facts on a rehearing of section 41(3) the Respondent will necessarily fail or the Appellant will necessarily succeed. It is in those circumstances that we set aside the Employment Tribunal decision, but direct that there be a rehearing, in accordance with the guidance given by this Tribunal, of the issue of the 1975 Act and section 41(3).

[24]It remains to say that Miss Monaghan has raised on this appeal, with the permission of Morison J at a preliminary hearing, the question as to whether section 41(3) itself offends against European legislation. Our preliminary view, and it is no more than preliminary because we have had no submissions on it, is that it is not likely to be found that section 41(3) so offends, and that the 1975 Act and the European legislation can be married. But we emphasise that no submissions have been made to us, and given that this was a matter that was not addressed to the original Employment Tribunal, and that it would only have been permitted to run on appeal had specific leave been given to do so, and that we have not concluded it necessary to consider such leave because of the view that we have taken on the basis of section 41(3), without consideration of the European aspect, we conclude that the right course is that this matter should return to the Employment Tribunal for consideration, and at the Employment Tribunal stage the question of the inter-reaction of the European legislation and section 41(3) can be considered.

[25]We think it appropriate to send it back to a freshly constituted Employment Tribunal and we trust that on this occasion the right party will call the right witnesses.