MISS L M WATERS v JAMIE GRIFFIN (2) CENTRE MARKETING (UK) LTD (3) ROSELAND LEISURE LTD [2000] UKEAT 1364_99_1205

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 1364_99_1205Case No Appeal No. PA/1364/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS L M WATERSAPPELLANTJAMIE GRIFFIN (2) CENTRE MARKETING (UK) LTD (3) ROSELAND LEISURE LTDRESPONDENT
Before
Mr Justice LindsayDate 12 May 2000
[1]APPEARANCES For the Appellant MS D GRENNAN (of Counsel) Instructed By: Messrs Every & Phillips Solicitors 1 Albion Street Exmouth Devon EX8 1JL For the Respondents NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENTS MR JUSTICE LINDSAY (PRESIDENT) : I have before me an appeal in the matter Waters against Griffin and Centre Marketing (UK) Ltd. Louise Mary Waters on 6 May 1999 lodged an IT1 alleging sexual harassment against two Respondents,(1) Mr Jamie Griffin and(2) Centre Marketing (UK) Ltd. The allegations against Mr Griffin were of the crudest kind, including his pulling down Miss Waters' trousers in the office, an event which, hardly surprisingly, she said, was humiliating and embarrassing.[2]On 7 June 1999 a second IT1 was lodged bringing in this time Centre Marketing (otherwise known, it was claimed, as Roseland Leisure Ltd). The same events were asserted as had been asserted in the first IT1.[3]On 10 September 1999 there was a hearing at the Employment Tribunal. Roseland dropped out but the complaint as to unlawful sex discrimination was upheld. Centre Marketing was ordered to pay to Miss Waters the sum of £244.10 and Mr Griffin was ordered to pay her £1,034.14. The trouser allegation was upheld. It might be thought at first that the Tribunal, having examined into or heard evidence of Miss Waters' psychological state, made some observations which were favourable to her on the point; in paragraphs 5 and 6 of the Tribunal's Decision it says:
"5. She asserts that the first respondent's conduct on 17 March undermined her confidence such that she now feels a different person and that she has been unable to obtain regular employment since. She has taken up three jobs but on each occasion has suffered panic attacks and has had to leave. For her the incident on 17 March was the last straw and she was unable to take any more negativity – a reference to other problems which she was experiencing at the time. The applicant consulted a solicitor on 22 March and presented her complaint of unlawful sex discrimination on 5 May. 6 In the light of the foregoing relevant facts we are entirely satisfied that the applicant suffered unlawful sex discrimination at the hands of the first respondent. …"
That last sentence is the beginning of paragraph 6, but it does speak of the "foregoing" matters as if they were found facts. However, moving on to their paragraph 8, the Tribunal said:
"8. The second head we have considered in assessing the compensation due to the applicant is injury to feelings. As to this, we have had some difficulty in accepting the applicant's evidence as to the extent of the psychological trauma suffered by her as a consequence of the first respondent's conduct."
And then, a little later: The applicant claims that since the incident on 17 March she has suffered from depression and on one occasion attempted suicide by way of an overdose of medication, but she produced no supporting medical evidence either from her doctor or her counsellor to support that claim and the only corroborating evidence was given by one of the witnesses who testified in her favour." And then, finally on this subject, a little later:
" … the applicant came across to us as a confident and capable young woman and we were unable to accept that she had suffered the loss of confidence and depression to the extent which she claimed."
This aspect of things is relevant, as will later appear. That was the hearing on 10 September 1999.[4]On 24 September 1999 the Decision was sent to the parties. On 28 October, as it would seem, Counsel completed a draft Notice of Appeal. The 3rd November is a date written on the Notice of Appeal, later received. On 4 November, say Miss Waters' Solicitors, they posted a Notice of Appeal, first class post, to the Employment Appeal Tribunal. On 5 November 1999, a Friday, the six weeks expired. The Notice of Appeal had not been received but on the Monday, the 8 th , the Notice of Appeal was received at the EAT. It raises issues as to the quantum of the awards in Miss Waters' favour.[5]On 26 November the EAT wrote to the Solicitors acting for Miss Waters saying, as is usual, that an application for an extension of time would be necessary and on 30 November her Solicitor set out grounds for an extension. In the ordinary way the matter progressed and on 14 February 2000 the Registrar declined an extension and on 16 February there was an appeal lodged against that refusal. On 4 May a skeleton argument was received on Miss Waters' behalf from Ms Grennan, who has appeared for Miss Waters today.[6]Looking at the matter, one can see that the delay is short and, not uncommonly, to have posted on the 5 th would have lead to an arrival on the 5 th . Had that occurred the matter would have been in time. There is no explanation given of why the Notice of Appeal itself was not faxed. It is said that there were ancillary papers that would have made it unsuitable but it would have been easy enough to fax the Notice of Appeal itself and to have left everything else for hard copy later. But in terms of practical effect, I am entitled to take the view that for the papers to have arrived late on the Friday afternoon, the 5 th , would have been in time but would really have been of no practical benefit over their receipt first thing on Monday the 8 th , which is what happened here.[7]I need to pay some attention to the allegations as to Miss Waters' psychiatric state. Given that the Tribunal appeared to have doubts about her evidence on that subject, it is perhaps remarkable that no medical evidence has been laid in front of me today, as to, for example, her being distressed during the relevant six weeks' period, from the sending out of the Decision of the Tribunal on 24 September 1999 to the expiry of that six weeks period on 5 November, and I am bound to say that I have given some thought to the possibility of adjourning the appeal simply to give Miss Waters the opportunity of adducing medical evidence relevant to that period. But all too easily matters such as this can, in terms of costs and delays, get out of hand and out of proportion and instead of adjourning for that reason I shall accept the argument that her medical state was relevant during the six weeks' period and that she was, if not totally disabled, certainly in a state in which she would have found it difficult to complete instructions for a Notice of Appeal in the six weeks' period. Bearing in mind the shortness of the delay and the absence of a practical difference between the receipt on the 5 th , in time, the Friday, and the receipt, as it was, on the 8 th , the Monday and also in the light of the view I take of it being disproportionate to adjourn for medical evidence and instead accepting the submissions made on that score, I set aside the Registrar's decision and extend time for the lodging of a Notice of Appeal to 8 November, thereby validating the Notice of Appeal that was received on that day.