MS S ANDREW v LONDON BOROUGH OF HACKNEY [2000] UKEAT 743_00_1312

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 743_00_1312Case No Appeal No. EAT/743/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS S ANDREWAPPELLANTLONDON BOROUGH OF HACKNEYRESPONDENT
Before
Mr Justice LindsayLord Davies of CoityDate 13 December 2000
[1]APPEARANCES For the Appellant MR D TIYAMIYU (Friend) MR JUSTICE LINDSAY (PRESIDENT) : We have in front of us by way of a preliminary hearing the appeal of Ms Shirley Andrew in the case Andrew v London Borough of Hackney . Today Ms Andrew has appeared by Mr Dean Tiyamiyu, a friend, as a representative. Ms Andrew had been Assistant Chief Executive Equal Opportunities and Community Affairs at the London Borough of Hackney. It is material to know that that is a relatively senior office, as can be judged from the fact that she was on a salary of £47,000 per annum. She is not, in other words, some uninformed rustic who might not be able to expect to know what was going on around her.[2]In September or October 1997, at a time when she had already ceased to work for Hackney, she claims that Hackney refused to supply a reference for her relative to a job application elsewhere.[3]On 10th February 2000 she lodged two IT1s, one for sex discrimination and one for victimisation. The language of the two complaints is, broadly speaking, similar, although slightly tailored, in one case, to victimisation. It might be worth stating what she said in relation to victimisation:
"The London Borough of Hackney, my previous employer, failed to supply a reference on request to a prospective employer. The Council knew that I intended to give evidence in support of a former member of staff who had brought cases against the Council under the Sex Discrimination Act. I therefore, believe that that I have been victimised by the Council contrary to the Sex Discrimination Act, in that I have been treated less favourably than others in similar circumstances."[ Our emphasis ] The other IT1 said this: "… It is important to note that providing references for staff is standard practice in Local Government. …"
[4]The London Borough answered in their IT3 of 24th February 2000 and they said:
"1. The complaints are time barred 2. There is no factual basis for the complaints 3. The Respondents have at all material times treated the complainant fairly and in accordance with their practice, procedures and relevant legislation. Further, the Respondents say that the complaints are frivolous and vexatious and otherwise an abuse of the tribunals procedures."
[5]As one would expect from that reference there to complaints being time barred, a preliminary issue was arranged for 3rd April 2000. It was to be heard before a three-person panel under the chairmanship of Mr T P Ryan. It obviously had to deal with the questions of whether the victimisation and sex discrimination complaints were in or out of time and, if out of time, whether it would be appropriate, that is to say just and equitable, to hear them nonetheless.[6]On 3rd April 2000 the hearing took place and on 27th April 2000 the decision was sent to the parties.[7]It was, as it would seem, unanimous. It certainly is not referred to as being other than that. It was:
"The decision of the Tribunal is that it does not have jurisdiction to determine the Applicant's complaints of sex discrimination."
[8]On 9th June 2000 a Notice of Appeal was received and it asserts four grounds and we have also a skeleton argument and a supplemental skeleton argument prepared by Mr Tiyamiyu. In relation to the first ground it is probably best first to read one or two passages from the decision itself. In paragraph 13 the tribunal said this:
"13. We turn to consider the second factor which is one of cogency, and this is the one which causes us the most anxiety. Bearing in mind the nature of the claim, what a tribunal now dealing with this on its merits would have to do is to make a decision on the state of mind of those who decided either to provide or not provide the reference to Newham [ that was the prospective new employer ] in September and October 1997. Bearing in mind the time that has passed and the nature of the enquiry upon which a tribunal would be engaged, it is very clear to us that memories will either have failed or been affected by the passage of time, that the delay will, whatever the cause of it, have a substantial and deleterious effect on the cogency of the evidence. …"
Well, it is said that that is an error of law on the face of the record and the skeleton argument bases that chiefly on a citation from the case Equal Opportunities Commission v Birmingham City Council [1989] 1 All ER 769 HL in the speech of Lord Goff. The skeleton argument conveniently quotes the passage chiefly relied on:
"The intention or motive of the defendant to discriminate, though it may be relevant so far as remedies are concerned (see s 66(3) of the 1975 Act), is not a necessary condition to liability; it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the grounds of sex."
We have, of course, no quarrel with that extract from Lord Goff's speech in the House of Lords, but that citation does not begin to say that states of mind are, or even that motive is, invariably irrelevant, still less that the reasons why individuals acted as they did at certain times are always irrelevant.[9]The surrounding facts in this particular case before us had been described by the tribunal. In their paragraph 4, they said:
"4. … In 1993 the Applicant, who was then an Assistant Chief Executive with the Respondent, was given the option to compete for her post or take voluntary severance in a reorganisation. In 1994, in May, she opted for voluntary severance. Between 1994 and 1996 she took short-term jobs by way of management training consultancy work. On 5 August she entered a Compromise Agreement with the London Borough of Hackney and, on 13 August 1996, the Respondent sent the Applicant a letter agreeing to provide for her in the future an agreed reference. It was common ground that that reference spoke well of her qualities as an employee."
A little later there is a further passage in their paragraph 5:
"5. … In the meantime the Applicant applied for, was interviewed for, and was offered, subject to references, a position with the London Borough of Newham. She cited the London Borough of Hackney as a referee. For reasons which are not clear from the documents in A1 but which for the purposes of this case do not actually matter, in the first instance Hackney did not provide a reference. They offered and provided the agreed reference but they did it by such a time as to mean that Newham had withdrawn the offer of the job from the Applicant and offered it to the second candidate and were not prepared thereafter to reconsider their decision. …"
[10]In those circumstances the questions which a substantive hearing would need to investigate would include why was it that a reference was not provided? Did the individuals who were involved in its non-provision know of the alleged protected act? That would plainly be relevant to the victimisation claim. Was there any available and acceptable explanation of the failure to provide the reference? It cannot be said that states of mind as at October 1997 would be irrelevant to such enquiries or that the tribunal was wrong in law to take the view that the lapse of time would have had a substantially deleterious affect on the cogency of the evidence. We are unable to see any arguable point of law on that first ground in the skeleton. Just pausing there, of course we must emphasise that as this is a preliminary hearing all we are concerned about is to find whether there are arguable points of law in the appellant's favour.[11]The second ground is headed "Jurisdiction"; it is paragraphs 8 and 9 chiefly and it says:
"8. The Employment Tribunal erred in law in stating that it does not have jurisdiction to determine the applicant's complaints of sex discrimination in that the Respondent's stance in refusing to complete a reference form for prospective employers is a continuing "act extending over a period" within the meaning of s.76(6)(b) of the Sex Discrimination Act 1975 and therefore must be treated as "done at the end of the period" , when the policy was abrogated. 9. The Appellant submits that the Respondent's stance or policy in refusing to complete a reference form for prospective employers is a continuing act of discrimination. Consequently, her application falls within the statutory time limit as specified in section 76(6)(b) of the Sex Discrimination Act 1976 (see: Barclays Bank Plc V. Kapur (1991) 2 AC 355 @ pp.363A-369F)."
But there is no finding of a stance or a policy or a practice or a habit of refusal here; indeed, there was no finding by the tribunal of a refusal at all. The tribunal dealt with the point in their paragraph 9, they say:
"9. … The Applicant's first point was that the act, as is sometimes said in a shorthand way, is a continuing act – that is what is meant to bring the claim within subsection 6(b), saying that, because they had refused to issue a reference to Newham in 1997, she had stopped citing them as a referee and therefore they were failing to continue to provide her with references contrary to the Agreement and discriminating on the grounds of her sex. With the best will in the world, the Tribunal could not accept that argument. This may have been an act with continuing consequences but it was not an act done extending over a period such that it could be said that the primary limitation period had not expired. This was a one-off act and the act occurred in 1997. …"
[12]Mr Tiyamiyu refers us to some additional correspondence that begins with a letter of 20th October 1997 from solicitors acting for Ms Andrew. The last paragraph of the letter says:
"In the meantime, we should be grateful for your undertaking that should Hackney be approached for a reference in the future that the reference would be dealt with appropriately – i.e. that any form requiring standard information is completed and returned and that substance to the reference conforms with the agreed reference on file."
Ms Andrew was asserting that if there was any request for a reference then the agreed reference, which had been negotiated earlier, should be supplied to the interested party.[13]On 22nd December 1997, in answering that letter, Hackney said:
"The reference request from Newham in respect of your client was dealt with appropriately. In accordance with the Council's undertaking to your client a copy of the agreed reference was supplied to the London Borough of Newham. I have never met your client and therefore I am not in a position to supply any reference other than that which has previously been agreed. I confirm that any future requests for references will be dealt with in a similar way. The Council can see no merit in any possible claim from your client for breach of contract and any such application will be most strenuously defended."
[14]Mr Tiyamiyu urges that in some way Ms Andrew was entitled to what he called a voluntary reference, in other words, not the form that had been agreed and negotiated between the parties, but some other form. But, of course, if Hackney had supplied another form they would have been breaking their agreement with Ms Andrew that it would be the agreed form that would be supplied. There is no indication in those letters and that exchange of correspondence of anything by way of a stance or policy or practice of consistently refusing a reference of the kind, the only kind, that had been agreed to be given. The onus of proving a continuing policy or stance or practice falls upon the complainant and here Ms Andrew plainly failed to satisfy that burden and we have no reason to believe that she was not given every opportunity to satisfy the burden. We are unable to see any error of law in that second point in the skeleton argument.[15]The third point is headed "Failure to act fairly". In paragraph 10 of the skeleton Mr Tiyamiyu says:
"10. The Employment Tribunal erred in law in that it failed to act fairly in that the nature and extent of the Tribunal's Chairman's interruptions during the hearing made it virtually impossible for the applicant to put her case properly or adequately."
Ms Andrew has sworn an affidavit on this subject, on 12th July 2000, and we have considered that. We have also considered the Chairman's answering letter of 28th July 2000. If we give both accusation and denial (because the Chairman's letter represents a denial in substance) - if we give the accusation and the denial equal weight - and it is hard to see how Ms Andrew could expect more favourable treatment than that - we are only left with the extended reasons themselves as the best remaining indicator of whether there was fairness or not at this hearing.[16]When we look at the tribunal's decision, we notice, first of all, that the tribunal go out of their way to praise Ms Andrew's presentation of the case below. In their paragraph 8 they:
"8 … She has presented her own claim today. She suffers no disadvantage as a result of having done that. Bearing in mind all that we have to consider, nobody could have argued the case more effectively than she has done on her own behalf. The question that the Tribunal has to decide today is whether the complaints the Applicant seeks to have litigated before us are out of time."
[17]The tribunal express sympathy for Ms Andrew's position. In paragraph 14 they say:
"14. … Let there be no doubt there is no want of sympathy in relation to the position in which litigants find themselves with regard to this. It is always very difficult when the law is in development. But applying the law, we are unable to say that we have jurisdiction in this case. This claim must be dismissed."
[18]So the extended reasons have all the appearance of a careful and sympathetic assessment of the case. In the Chairman's letter of 28th July 2000, in answering Ms Andrew's affidavit, he says:
"As is apparent from the Tribunal's decision there was a considerable amount of law to understand and apply. There was normal dialogue between Miss Beale [ Counsel appearing for Hackney ] and me. The purpose was not to be legalistic but to draw out the relevant principles so that all present could understand them."[ Our emphasis ] In paragraph 9 of their judgment they say: "
Our attention has been drawn to the case of British Coal Corporation v Keeble [1997] IRLR 336 EAT …" Then they set out verbatim the principles of that case and there is no reason to assume that when that case was drawn to their attention Ms Andrew was not able equally to see the factors to which it gave particular attention. The Chairman's letter says:
"The Appellant made no complaint about the conduct of the proceedings at the time. So far as I can now recall she gave no indication that she felt she was not having a fair hearing. I did treat the Appellant differently from Counsel for the Respondent. I required Counsel to explain the legal basis for her submissions clearly and simply. I asked the Appellant questions to clarify her evidence and to explain her position. I did not treat her harshly nor place her under pressure. If anything it was Counsel who was under pressure."
[19]Mr Tiyamiyu has drawn our attention, amongst a great number of authorities, to the case of Secretary of State for the Home Department v Thirukumar and others [1989] Imm AR 402 , where, at 414, Bingham LJ says:
"If an opportunity to make representations is to be meaningful the mind of the applicant must be directed to the consideration which will, as matters stand, defeat his application."
Well, that, again, is a proposition with which we could hardly disagree. But it is not enough, of course, for a party merely to say that he or she believes that he has not or she has not had their minds directed to the right subject or that he or she feels that there has not been a fair hearing. The approach of an Appeal Tribunal such as ours has to be objective. Here we have no sufficient evidence to lead us to a view that Ms Andrew was not fully able to understand the case as it developed against her. She heard the discussion between Counsel and the Tribunal. She was there whilst the cases were cited and, as I mentioned at the outset, she is plainly a woman of achievement and intelligence. Another case which Mr Tiyamiyu has cited on her behalf is the Fairmount case and the well-known observations of Lord Russell about whether a party has had a "fair crack of the whip". We have no sufficient reason to believe that Ms Andrew did not have a fair crack of the whip. We have to balance her version of events with that given by the Chairman, and, as I say, that leaves us with a conflict which we can only resolve by looking at the decision itself. It is not easy, indeed, it is impossible, to regard the findings and the extended reasons as indicative of unfairness or bias or of anything other than a perfectly well-conducted hearing at which both sides were given ample opportunity to understand the other's case and to respond to it.[20]Under this head in his skeleton, Mr Tiyamiyu says:
"The Appellant submits that she had not been given an opportunity to put her case properly before the Tribunal …"
But we have no reason to accept that that was so and, indeed, no factor has been drawn to our attention which could have been put but was not and which, in our understanding, would have been in anyway likely to have changed the tribunal's decision. So we are unable to find any arguable error of law in that category.[21]That leaves us with the fourth point, which really is the third point dressed up in a slightly different robe. In his paragraph 15 of the skeleton, Mr Tiyamiyu says:
"Accordingly, the Employment Tribunal acted unlawfully in that it failed to take into account matters which it should have taken into account, namely the matters with which he would have been acquainted had he inquired into those aspects of the case: see Associated Provincial Picture Houses V Wednesbury Corporation (1947) 2 All ER 690, CA, per Lord Greene, MR @ P.685"
[22]No new factors seem to be identified in this part of the argument, beyond paragraph 14 of the skeleton which says that the tribunal:
"failed to observe the rules of natural justice in that it failed to draw the factors listed in the decision upon which the tribunal's discretion to extend the time limit was exercised to the attention of the applicant and her comments on them invited."
But we have already drawn attention to the fact that those factors come out of the British Coal Corporation v Keeble case, to which the attention of the tribunal was drawn and, no doubt, Ms Andrew was there when that attention was so drawn. It must have been plain enough to her - she is not a humble rustic but a former Equal Opportunities Assistant Chief Executive - what the points were that were being made against her and what she would need to answer if she was to succeed. As we have already cited, the tribunal was impressed that no one could have argued the case for her better than she had done herself. We see, therefore, no error of law in that part of the skeleton argument.[23]There remains a supplementary skeleton argument by the appellant directed to human rights considerations. The Human Rights Act 1998 does not bar all time limits on any claims by reason of the lapse of time. In other words, it is not intrinsically improper to have human rights which eventually fall to be denied simply because they have not been exercised soon enough. The legislation recognises that there is a need for finality in litigation and in affairs and that rights have to be exercised, if at all, relatively promptly. Where there is, as there is our domestic jurisdiction, a broad discretion given to courts to extend time in appropriate cases where it is just and equitable to do so, it is perfectly proper to have fairly tight initial time restrictions. There is no way in which it can be argued that having the statutory time limit itself is offensive to human rights legislation. The 1998 Act does not add substantial argument to the matters we have already had to deal with. Indeed, the skeleton argument completely mistakes the matters that are in issue before us. In paragraph 5 of the supplemental skeleton it reads:
"The Appellant submits that if the Appeal Tribunal declines jurisdiction on the ground that section 6(2) SDA 1975 does not cover sex discrimination suffered by ex-employee, the Appellant's right under Article 6(1) European Convention of Human Rights would be infringed (see: section 2 HRA 1998 and Osman v United Kingdom (1999) EHRR 245 and Abraham v Commissioner of Police for the Metropolis , CA, unreported 08.12.00). This is because the Appellant will be denied access to court for the determination of her civil rights contrary to Article 6(1) of the Convention."
There is no way in which we are declining jurisdiction on the ground that section 6(2) does not cover sex discrimination suffered by ex-employees. That is not a matter that comes for our decision. So we find nothing in the supplemental human rights skeleton that has been laid in front of us.[24]The discretion given to Employment Tribunals under the relevant legislation, section 76(5), is a broad one and that, of itself, causes difficulties for appellants. That has been long recognised as long ago as [1977] IRLR 69 in the case of T J Hutchison v Westward Television Ltd , where Phillips J said (at paragraph 11):
"Because it is such a wide discretion conferred upon an Industrial Tribunal, the task which an appellant has in such a case is a heavy one. Really he must show, if he is to succeed upon appeal, that the Industrial Tribunal demonstrably took a wrong approach to the matter, or that it took into account facts which it ought not have done, or that it failed to take into account facts which it should have done, or, as a last resort which is always open upon an appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed Tribunal could have reached it."
We are quite unable to detect any arguable error of law of any such description and accordingly we must dismiss the appeal at this preliminary stage.