MISS SHARON DELANEY v (1) NORD ANGLIA INTERNATIONAL PLC (2) MISS A MCCAHILL [2000] UKEAT 817_00_0812

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 817_00_0812

Case No Appeal No. EAT/817/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS SHARON DELANEYAPPELLANT

(1) NORD ANGLIA INTERNATIONAL PLC (2) MISS A MCCAHILLRESPONDENT

Before

His Honour Judge J Altman Mr P A L Parker

Date 8 December 2000

[1]APPEARANCES For the Appellant The Appellant in person JUDGE J ALTMAN This is an appeal from the decision of the Employment Tribunal on 27 April 2000 when by way of Interlocutory Order they dismissed the then first named Respondent Mr Kevin J McNeany from the proceedings. The appeal comes before us by way of a preliminary hearing to determine if there is a point of law capable of argument in full before the Employment Appeal Tribunal.

[2]The Appellant was complaining of unlawful sexual discrimination. She began proceedings against Mr McNeany and the company of which he is Chairman, Nord Anglia International PLC, the Appellant's employers at the relevant time.

[3]On 28 June 2000 the Appellant entered an appeal from the Interlocutory Order to which I have just referred. Nonetheless, on four days in early July this year, the Employment Tribunal at Manchester proceeded to hear the Appellant's complaint against Nord Anglia International Ltd as the only Respondent and dismissed the complaint.

[4]The Appellant has appealed that decision also, but the appeal is out of time, and at the present time there is pending an application for leave to appeal to the Employment Appeal Tribunal out of time.

[5]It seems to us that there is a clear point of law, worthy of full argument, which arises as follows. In paragraph 6 of the extended reasons for the dismissal of the First Respondent, the learned Chairman said this:

"The Tribunal considered that it was unnecessary, inappropriate and oppressive in the circumstances of the case for Mr McNeany to remain as a respondent."

The learned Chairman went on, under paragraph 7:

" Accordingly, under the provisions of Rule 17(2) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 the Tribunal orders that Mr Kevin J McNeany be dismissed as a respondent from these proceedings."

[6]However, when we turn to those Regulations, we find that they provide as follows:

"17(2) A tribunal may ……… order that any respondent ……who appears to the tribunal not to have been, or to have ceased to be, directly interested in the subject of the originating application, be dismissed from the proceedings."

Accordingly, it seems to us that there is an arguable point of law that the Tribunal's power to dismiss someone from the proceedings is confined to the dismissal of a party effectively against whom there is no case, so as to make him directly interested.

[7]The position in this particular case seems to have arisen as follows: the Respondents applied by letter dated 21 January 2000 for the removal of the First Respondent on the ground that no unlawful act, within the meaning of the Sex Discrimination Act 1975 had been alleged against him, and that, on the face of it, appears to be a tenable argument.

[8]However, after the decision of the learned Chairman, and pending the appeal because of allegations effectively of bias, the learned Chairman helpfully provided a letter setting out what occurred, and in that letter he said:

"Prior to the hearing on 27 April 2000, the members of the Tribunal read the appellant's witness statement dated 14 March 2000. It was clear that the complaints made against Mr McNeany by the appellant were as follows:- a) that he allowed his employees (Directors of Nord Anglia International Limited) to treat her in a discriminatory way, and b) that when she approached him for assistance, he did not respond in a way that she regarded as satisfactory."

[9]It seems arguable to us, that there were allegations against the First Respondent, as plainly stated, and described as "clear" by the learned Chairman. He then quoted from his notes, the following words: "Applicant was asked by Tribunal what was to be gained by leaving Mr McNeany as a respondent or what possible detriment she might suffer if he was dismissed from the proceedings. She could not give a satisfactory answer".

[10]It seems to us arguable that that was not the test to be applied. The Appellant has appeared before us today, and has confirmed to us that it is her case that Mr McNeany is partly responsible. She has mentioned three matters which fit in with the way they were described in the letter from the Chairman as follows: first, she says, that he allowed the Respondents' employees to discriminate against her and deal less favourably with her than with two male colleagues, and she derives that, at least, from a document which she says was circulated saying that Mr Pottinger, against whom allegations were made by her and others, had consulted with Mr McNeany.

[11]Secondly, she says that after the first grievance hearing, she asked to speak to Mr McNeany and the message was conveyed back to her from the Personnel Section that he did not want to talk to her. She then said that she wrote to him, as an alternative way of communicating with him, and he replied by letter, briefly saying that she would have a fair and equitable hearing at the second grievance.

[12]In the decision of the Tribunal, furthermore, in paragraph 4, the Chairman recorded that the Respondents confirmed that they, that is the company, would regard themselves as vicariously liable for any of Mr McNeany's actions. Here again, it seems arguable that if there is a vicarious liability, that must mean that the person for whom the company is vicariously liable is also interested in the proceedings, and it is arguable that there is a lack of logic in saying that the company which is vicariously liable is properly a party to the proceedings, but that the person for whom there is potential vicarious liability, should not be a party to the proceedings. Indeed, it seems to us arguable that taken to its logical extreme, the fact that Mr McNeany had been discharged from the proceedings, theoretically, would provide a basis for saying "There can be no vicarious liability for him".

[13]It does seem to us that the steps that the Chairman was seeking to take may have been sensible, and may have been the sort of steps that parties may agree to, but the question we have to consider is whether there is an arguable appeal, that there was an error of law in the Tribunal's exceeding their jurisdiction in dismissing for the reasons they did in this particular case.

[14]We have made our findings simply on a preliminary hearing, without examination in any detail, of what the allegations against Mr McNeany really are, and it may in the end emerge that there were no substantial allegations against him, but that is not a matter for us to determine at this hearing.

[15]It seems to us there are often practical steps that a Tribunal can take in relation to a party who may be caused a great deal of unnecessary inconvenience, and possibly expense, such as by saying that he need not attend the hearing, except to deal with any particular matter which may arise, and need not be present throughout, but the point of law, which we have identified, seems to us to be clear.

[16]We turn now to the ground of appeal that the Chairman denied the Appellant the opportunity of, and tried to discourage her from, appealing by saying it would not get her anywhere, and by suggesting that she was "barking up the wrong tree". We have read the letter from the Chairman in which he explains what he was doing, and it is clear, on the face of it, that what, from his point of view, he was seeking to achieve was the most efficient way of dealing with the substantive complaints, and to avoid delay for the Appellant in getting any redress to which she may be found later to be entitled, by taking what he saw as technical points, on appeal.

[17]Chairmen often, and rightly, seek to assist parties and to advise them in the best way to do the best for themselves before the Tribunal, and Chairmen lend their own expertise to assisting a party, particularly an unrepresented one such as in this case, to present their case. It appears quite clear to us on the documents, that that was the intention of the Chairman in this case, and there was no bias or ill will of any kind levelled against the Appellant, although of course, we recognise that that was her perception. It seems to us that there is no basis upon which an argument in law could be mounted to establish the correctness of the Appellant's perception, and accordingly we dismiss that aspect of the appeal at this stage.

[18]Finally, we note that the application for leave to appeal in Case No PA/1201/00 is going to be listed before the President, hopefully in February. In anticipation that this preliminary hearing may be successful, and in the event of that happening, arrangements have already been made that this appeal will be listed before the President at the same time, and we give that direction. Skeleton Arguments should be presented not less than 14 days before the date finally listed for hearing. This was an interlocutory appeal and it is hoped it can be dealt with as soon as possible in February, if at all convenient.

[19]There was in the Notice of Appeal, a request for Chairman's Notes of what took place in relation to this. In view of the full letter he has written on this particular issue, it does not seem necessary to obtain those notes.