MRS P J OLIVER v THE CHIEF CONSTABLE OF LEICESTERSHIRE CONSTABULARY [2000] UKEAT 841_99_2303

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 841_99_2303Case No Appeal No. EAT/841/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS P J OLIVERAPPELLANTTHE CHIEF CONSTABLE OF LEICESTERSHIRE CONSTABULARYRESPONDENT
Before
Mr Justice LindsayDate 23 March 2000
[1]APPEARANCES For the Appellant MS K MONAGHAN (of Counsel) Instructed By: Russell Jones & Walker Scottish Equitable House 43 Temple Row Birmingham B2 5JT For the Respondents MR M WYATT (of Counsel) Instructed By: Ms B Moore Leicester County Council Chief Executive Dept County Hall Glenfield Leicester LE3 8RA MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of a full appeal the appeal of Mrs P.J. Oliver in the matter Oliver against the Chief Constable of Leicestershire Constabulary. The appeal is concerned with the Employment Tribunal's refusal to extend time backwards so as to enable Mrs Oliver to complain by way of sex discrimination in respect of acts and events more than three months before the lodging of her IT1. It is necessary first to give something of a chronology. On 10 August 1992 Mrs Oliver (for whom Ms Monaghan appears today, but did not appear below) began service as a Police Officer.[2]On 11 December 1995 she joined the Tactical Support Group ("TSG"). This seemed to be an unhappy spell and it is the case that many of her complaints relate back to her spell as a Constable in the Tactical Support Group.[3]On 17 October 1996 she lodged a grievance with her line manager. It is said to be the case that the grievance itself draws attention to the fact that Employment Tribunals exist and that complaints can be made to them.[4]On 11 November 1997 she left the TSG and joined the CID. She has, as we have understood it, no complaint against CID personnel but, unfortunately, she continued to meet from time to time with policemen and women, who had been with her at the TSG and it is her case that in that way she continued to suffer abuse from them. Things got worse and between 7 July 1998 and 19 January 1999 she was off sick with a degree of clinical depression.[5]On 19 January 1999 she returned from sick leave and she went back to the CID and there is one incident (there might be more than one, but certainly one at least) that seems to have occurred on or about 19 January 1999.[6]On 24 February 1999 she issued her IT1 claiming sex discrimination. The matters that she complained of, according to box 9 of her IT1 in the bundle, had occurred between 11 December 1995 (which, if you remember, was when she joined the Tactical Support Group) and the present day. There was no complaint, as far as we have understood it, that related to the period when she was off sick from 7 July 1998 to 19 January 1999. Her IT1 did have with it a considerable description in a closely typed series of pages, some nine or ten pages long, of the incidents on which she intended to rely.[7]On 17 March 1999 the Constabulary, the employer, put in its IT3 and took the point, amongst others, that she was out of time and that, as to the events more than three months before 24 February 1999, was not entitled to raise complaint. As is so often the case in such instances a preliminary hearing was arranged. We have not actually seen the notice describing the preliminary point that was to be ruled upon but we are told it was in terms of the conventional limitation, namely that all that was going to be decided was the jurisdictional point. On 24 May 1999 there was a hearing before, fortunately, a three-person panel and both sides appeared by Counsel and oral evidence was given. Mrs Oliver was orally cross examined. No evidence, it seems, was given orally other than by Mrs Oliver.[8]On 28 May 1999 reasons were promulgated and the unanimous decision of the Tribunal was that:
"(a) The complaints relating to events prior to 19 January 1999 were not presented within the three month period and it is not just and equitable to adjudicate them. (b) The complaints relating to events after 19 January 1999 were made in time."
That was the decision of the Employment Tribunal at Leicester under the chairmanship of Mr D. Price.[9]On 8 July 1999 there was a Notice of Appeal and in the ordinary way it came before the EAT on 11 November for a preliminary hearing, when leave was given to the Appellant to add further grounds to the Notice of Appeal alleging, in particular, that there had been a continuing act rather than a series of separate acts that were within her complaint. But, as that was inescapably an ex-parte hearing, liberty was given to the Respondents to move to set aside that leave. Mr Wyatt, who appears today and who had appeared also below for the Chief Constable, did at the beginning of our hearing move to strike out the amendments but we ruled that they were to stay as they were and hence Ms Monaghan has been able to rely upon them.[10]On 19 November 1999 there was an amended Notice of Appeal and it included those extra grounds. I will not take up time to read the relevant statutory provisions. We have them in mind. They are, so to speak, to be taken to be read into our decision; the Sex Discrimination Act 1975, Section 76 (1) (a), 76 (6) (b) and, crucially, 76 (5) are the material provisions of the statute.[11]We must remind ourselves that we are able to deal, in a case such as this, only with errors of law, and, in relation to the very broad and unfettered discretion conferred upon the Employment Tribunals by Section 76 (5), an error of law is undoubtedly not an easy thing to demonstrate. As long ago as 1977 in Hutchison v Westward Television Ltd [1977] ICR 279 the point was dealt with as follows by Phillips J, sitting here at the EAT. The case has not since been commented on adversely, so far as we know. At 282 E we find this:
"The third thing which we have to say about section 76 (5) is this. 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 they took into account facts which they ought not to have done, or that they failed to take into account facts which they 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."
The case also conveniently deals with a slightly different point and that is the reference in section 76 (5) to "all the circumstances of the case" and Hutchison deals with that at page 282 A to B and it says this:
"The words 'in all the circumstances of the case' refer, as we think, to the actual facts of the matter in so far as they are relevant to the matter under consideration in section 76 (5). 'The case' does not refer, we think, to the entire complaint which, if time were extended, would have to be investigated. The words refer to the actual facts so far as relevant to the matter in hand."
[12]Before we turn in more detail to the Extended Reasons, one more point needs to be mentioned. As we have said, oral evidence was given at the hearing. There is no record of any application having been made by either side for Chairman's Notes and certainly we have no Chairman's Notes and this does, undoubtedly, put a difficulty in the way of the Appellant. She cannot simply assert that whatever was said in her Witness Statement must have been accepted as unchallenged because she was cross examined and it could be that the impression proper to be derived from the evidence as a whole, including her oral evidence, may be different from that derivable only from the written Witness Statement. Nor can she say either that there was no evidence of this or that, or that there was evidence of such and such and it was not taken into account, because we are not told what the oral evidence consisted of. To that extent Ms Monaghan is battling with her hands tied behind her back.[13]Turning now to the Extended Reasons, it is a short decision and in paragraph 2 the Tribunal referred itself to section 76 (1) and to section 76 (5) and it is not said, nor could it be said, that they misdirected themselves in doing so.[14]Then, in paragraph 3, the Tribunal briefly summarised the nature of the Applicant's complaints as follows:
"3. In this case the applicant claims that up to her taking sick leave in July 1998, she was subjected to less favourable treatment on the grounds of her sex. Particulars of her allegations are set out in her originating application. She maintains that after her return from sick leave on 19 January 1999, she continued to be subjected to less favourable treatment."
It seems there is no error there. Paragraph 4 begins as follows:
"4. On the basis of the evidence we have heard, we are satisfied that the events of which complaint is made prior to July 1998 did not constitute a continuing act. They amounted, if true, to a number of separate acts of discrimination."
[15]That paragraph or sentence deals succinctly with an argument based on cases such as Owusu v London Fire & Civil Defence Authority [1995] IRLR 574 EAT and Cast v Croydon College [1998] ICR 500 . Owusu was dealing with the question of whether the fact that Mr Owusu's frequent and repeated applications for upgrading were consistently refused, and refused in a particular manner, amounted to prima facie evidence of a discriminatory practice or policy on the employer's part. The EAT reversed the Employment Tribunal, saying in their paragraph 23, this:
"We emphasise that, even if it was established that were some practice built up of denying Mr Owusu upgrading or the opportunity to act up, it would still have to be proved that it was a discriminatory practice. It may be that the respondents can satisfy the tribunal, when they hear the case on the merits, that there are alternative explanations for the treatment of which Mr Owusu makes complaint. But those are all matters for investigation on the merits. We are satisfied that this tribunal erred in law in failing to appreciate that a succession of specific instances could indicate the existence of a practice, which in turn could constitute an act extending over a period which is a continuing act."
[16]In the Cast case the question was whether repeated refusals by the employer to reduce a woman's hours of work was simply a repeated refusal, each instance referring back to the initial refusal which was out of time or was an indication of a continuing policy, an act extended over a period and hence occurring at the end of the period, which was in time.[17]In each of the Owusu and Cast cases it is plain that the question of whether one is looking at a policy or practice on the one hand or a series of separate incidents on the other, is very much a matter of fact for the Tribunal. Moreover, although one has frequent references to a policy, rule or practice or even to a policy, rule, practice or regime, it is worth noting that in paragraph 21 of Owusu the provision is as follows:
"On the other hand, an act does extend over a period of time if it takes the form of some policy, rule or practice, [and then, one might wish to underline the next few words] in accordance with which decisions are taken from time to time . What is continuing is alleged in this case to be a practice which results in consistent decisions discriminatory of Mr Owusu."
[18]Both in the Owusu and the Cast cases the Court or Tribunal was dealing with matters intrinsically capable of being matters of establish policy or practice on the part of the employer such as might have led to decisions being taken from time to time. Neither of the cases indicates that if a question as to the existence of a policy or practice issue arises it can be dealt with only at a full hearing when the full merits are investigated as a whole.[19]The amended Notice of Appeal raises complaints in this area but, given that we are not told what evidence the Employment Tribunal heard, it is impossible to say that the conclusion on the point by the Employment Tribunal was an error of law or was perverse. The nature of the complaints may reasonably thought to be less likely than was the case in Owusu or in Cast to represent an established policy or practice of the employer under which decisions were taken from time to time. Here, moreover, it is to be remembered that the Applicant was off sick from 7 July 1998 to 19 January 1999 and there is no complaint of sex discrimination in the period she was thus away from work. If acts of a discriminatory nature were committed before 7 July 1998 that would seem to represent a natural break to take as the end of the period for the purposes of section 76 (6) (b) and, if that was the case, of course, even then the IT1 would be well out of time. Moreover, there is no suggestion that it was submitted below that only a full hearing could sufficiently investigate whether there had been a continuing policy or practice, a point which we will touch on below. We are unable to detect any error of law in the Tribunal's reasoning on this part of the decision.[20]Going a little further with the Employment Tribunal's reasons, they say in their paragraph 4:
"The applicant was in a position to make an application to the Tribunal [at] any time from October 1996 when she commenced grievance proceedings. She knew of her right to bring such proceedings and there was no reason why no proceedings were brought."
[21]Looking to the first part of those two remarks, the Appellant argues that the Tribunal failed sufficiently to pay regard to the fact that the Applicant had lodged a grievance and that it was reasonable to delay the launching of an IT1 unless and until she knew the result of that grievance. Here, reliance is put on the case of Aniagwu v London Borough of Hackney [1999] IRLR 303 , where at page 305, paragraph 19, one finds this:
"It seems to us that that is entirely compatible with the reason given by the applicant, as to why he had delayed, and if the tribunal had asked themselves whether, in those circumstances, the applicant had acted reasonably, it seems to us that every tribunal would have concluded that he was well entitled to take the view that it would be sensible to seek to redress his grievance through the internal grievance procedure before embarking on legal proceedings. That was the position he had made plain to Hackney in the internal documents and it seems to us that every industrial tribunal, unless there was some particular feature about the case, or some particular piece of prejudice which the employers could show, would inevitably take the view that that was a responsible and proper attitude for someone to take, albeit that he had an extant complaint of race discrimination. He was looking to have his grievance resolved rather than go to law."
[22]It would be quite wrong to elevate that observation on the facts of that case to some universal proposition that a prospective complainant can invariably safely delay his IT1 until the end of some internal disciplinary or appeal stage. The matter is very much one of fact, dependent on the surrounding circumstances of each case. In the Aniagwu case there was evidence on the point. In paragraph 15, one finds this:
"During the course of the hearing, the applicant was, correctly in our view, asked to say why it was that he had not filed his originating application any earlier than he did and in subparagraph (e) of paragraph 3, the industrial tribunal said this: 'As to why the originating application was not filed any earlier than it was, the tribunal accepted the applicant's evidence that he was hoping that the internal appeal would be dealt with first, and resolve the matter in his favour, but that he eventually became frustrated by the delay'."
[23]However, in the Aniagwu case it was said, and successfully urged, that the Employment Tribunal had overlooked that important evidence and in paragraph 16 of the EAT's decision one finds:
"What they were required to consider was the applicant's case that the reason why he did not present his complaint earlier was because he had exercised his right to take the grievance a stage further. And in paragraph 20: "
But it seems to us that the industrial tribunal have signally failed to deal with the true nature of the reason why he did not present his complaint earlier, when dealing with the just and equitable provision."[24]We might add that in the Aniagwu case time started running against Mr Aniagwu on 20 March 1997 and the IT1 was lodged on 26 June 1997. By contrast with that case, in our case there is no indication that evidence was accepted from Mrs Oliver that she delayed her IT1 in order to await the outcome of her grievance. Even if there had been, her case was that her grievance was being ignored and that she was not kept informed about its progress and was never told formally of its outcome. Given that the grievance was lodged on 17 October 1996, even if she had, for a time, stayed her hand with her IT1 to await its outcome, as a matter of degree there must have come a time (and it would be very much a matter for the Employment Tribunal to rule upon) at which it would have become unreasonable further to delay lodging of the IT1 and the period, it will be seen, is hugely greater than had been the case in the Aniagwu case. We do not see the Aniagwu case as pointing to any error of law on the Tribunal's part.[25]Going a little further with the decision of the Tribunal and in fact to refer back to a sentence we have already quoted:
"She knew of her right to bring such proceedings and there was no reason why no proceedings were brought."
[26]In context "such proceedings" there refers to sex discrimination and to the lodging of an IT1. In the absence of Chairman's notes it cannot be said that the Tribunal had no evidence from which it could so conclude. Moreover, there is some suggestion, which we have touched on already, that the grievance papers themselves point to an ability to launch Employment Tribunal proceedings. The sentence "there was no reason why no proceedings were brought" has been attacked quite rightly by Ms Monaghan, quite rightly in the sense that it provides an argument in her favour. She complains that the Employment Tribunal failed to have regard to the psychiatric evidence that was adduced and also takes the point that it is always difficult to launch complaints, and that Tribunals should bear in mind the difficulty, where the complaints involve senior colleagues.[27]So far as concerned the psychiatric side of things, there was a report on 18 April 1999 by a Dr Simon Shaw, Consultant Psychiatrist, Leicestershire and Rutland Healthcare, and it spoke of Mrs Oliver's moderately severe depression. The amended Notice of Appeal says:
"She was still in need of psychiatric support as recently as March 1999. The consultant psychiatrist states that a person in the Appellant's mental condition would find it 'at least very difficult to carry out all the tasks involved in seeking legal assistance or commencing legal proceedings'. The Employment Tribunal decision makes no reference to these clinical findings as presented to them."
[28]It is perhaps notable that whatever difficulty she had at a psychiatric level it seems to have been capable of being surmounted because the IT1 of 24 February 1999 has between nine and ten pages of detailed complaint annexed to it. It could be that the psychiatrist has been given some exaggerated view of what is really necessary simply in launching an IT1. But, in any event, oral evidence was given and we do not know what was said. It therefore cannot be said that the Tribunal was not entitled to consider that there had been no reason why proceedings had not been brought. Moreover, as Mr Wyatt points out, looking at the chronology of the medical evidence, there is something of a gap. The medical evidence from Dr Shaw consisted of one letter of 28 April 1999 and it says as follows, so far as relevant:
"Paula was referred to the Community Mental Health Team in April 1997 by her GP. The GP stated in his referral letter that she had been suffering from chronic depression. As a result of that referral, she was seen by Gordon Cheverton, a Social Worker and Psychotherapist, who is a member of my Community Mental Health Team. He first saw Paula in May 1997 and reports her, at that time, as having very clear symptoms of depression."
[29]Well, looking at the chronology of that, she is not referred until April 1997. It will be remembered that her complaints, as against the Tactical Support Group, begin at a date shortly after December 1995. The GP states in his referral letter that she had been suffering from chronic depression; whether one is to read into that that by then it had stopped, is not entirely clear.[30]Going on, as a result of that, she was seen by Gordon Cheverton. He first saw Paula in May 1997. But, it is notable that she was not signed off as unfit to work until July 1998, and a common sense question is likely to have arisen before the Tribunal and might well, of course, have been touched on in evidence, that if it was the case that she was fit to be a CID Constable down to 7 July 1998, notwithstanding that she had been already seen by the Social Worker and Psychotherapist but not signed off, then surely she would have been able to cope with the relatively light tasks involved in consulting a Solicitor or even composing her own IT1. The letter went on:
"Mr Cheverton was so worried by the severity of Paula's depressive symptoms that in August 1998, he asked me to review her in the Psychiatric Outpatient Clinic. I saw her for the first time in the Outpatients on the 8 th September 1998."
[31]So that, so far as Dr Shaw's evidence is concerned, he sees her at what might be regarded as a low point two months and a day after she had been signed off sick and unfit for work and that is the first time he saw her. It may well be that he did not, therefore, get a fair impression of her state as it had been at an earlier stage. The letter goes on:
"It is my opinion that someone with a moderately severe depressive episode with consequent significant impairment of motivation, concentration and energy would find it at least very difficult to carry out all the tasks involved in seeking legal assistance or commencing legal proceedings."
[32]But "very difficult" falls substantially short of impossible. Given these considerations and especially that we do not know how the oral cross examination of Mrs Oliver proceeded at the hearing, we do not find ourselves able to say that there is any error of law in the conclusion, succinct as it was, that there was no reason why no proceedings were brought.[33]So far as concerns the point that it is always difficult to complain against seniors, well, I think Ms Monaghan would be amongst the first to concede that a considerable proportion of sex discrimination and race discrimination cases involve complaints against seniors and it cannot be said here that Mrs Oliver was so overawed, so overborne, that she felt unable to complain because she had lodged a grievance and, indeed, made frequent complaints to her seniors. We find no error of law in this part of the case.[34]Then the Appellant complains that the Tribunal has, in effect, exaggerated the prejudice that would have been suffered by the employer if an extension of time had been granted. What the Tribunal said was this:
"To allow her to proceed at this stage with allegations dating prior to her taking sick leave would result in too great a prejudice to the respondent. The allegations concern various incidents. It would impossible for the respondent to investigate them properly with a view to having to defend a claim."
[35]In the absence of Chairman's Notes we cannot be sure that that is a conclusion to which the Tribunal could not have come. Moreover, the Appellant's argument in this case has its weaknesses. It is that as the grievance was lodged, then events would have had to have been investigated by the Respondents in any case and thus, Miss Monaghan argues, to enquire into them now requires no fresh enquiry by the Respondents but simply a reopening of a past enquiry. But, of course, the grievance was in October 1996. Even if it was a broad complaint (and there is some reason to believe it was not) it would have been relative to events that had happened by 17 October 1996. But some three pages of Miss Oliver's complaints relate to events post-October 1996 and, moreover, they are set out in many cases without naming names and, one sees reference in the extended IT1 to "the Sergeant", "my Sergeant", "a Sergeant", "the Inspector", "a Senior PC", "the Senior PC", "my Supervisor", "a member of the Welfare team", "my initial Sergeant", "several of my male colleagues" and "several of my present colleagues". Chasing up each of those references would undoubtedly involve great expenditure of effort and time on the Respondents' part and may, of course, lead to conclusions, in some of the cases, that it was now not possible to conduct a fair investigation, whatever incident was thought to be alleged. The Tribunal heard evidence and, again, we are not told what it was and it cannot be said, therefore, that the Tribunal's conclusion that it would be impossible for the Respondents to investigate the Applicant's complaints properly was a conclusion at which no Tribunal could properly have arrived.[36]Ms Monaghan says that if, as is the case, the post-January 1999 events can be complained of and do go forward, then, even so, it will be necessary for the Respondents, as part of the overall background and build-up to January 1999, to investigate these earlier complaints and to lead evidence in relation to them because it is frequently permitted that, even where only a late event is looked at as a matter of recoverable complaint, earlier events are needed to set the tone. However, here there was a remarkable natural break from 7 July 1998 to 19 January 1999 when Mrs Oliver was away and during which no complaint was made and, moreover, it is to be remembered that when she did return, in January 1999, it was not to the TSG and the personnel which had caused her such difficulty but to the CID that she went to and it by no means follows that it will be necessary, from the particular facts of this case, to go into earlier events, even if the post-January 1999 complaints continue to go forward to a hearing.[37]Ms Monaghan says that there is no mention of the prejudice suffered by Mrs Oliver if time is not extended in her favour but, with respect, it is so blindingly obvious that she would lose all ability to raise complaint in respect of those earlier times that it hardly needs to be said. Certainly, we have no reason to think that it was not in the Tribunal's mind that a balancing exercise needed to be considered.[38]There still remain one or two complaints that we need to deal with. One of them is that the Tribunal gave inadequate reasons for concluding as it did. This is a Meek v City of Birmingham District Council [1987] IRLR 250 , point. But the complainant was plainly told that the reason why the events complained of did not constitute a continuing act was that on the evidence which the Tribunal heard it took the view that those events, even if true, amounted only to a number of separate acts of discrimination. That is terse, but a sufficient reason. The reason why extension of time was not granted was because "in the circumstances it is not just and equitable for the Tribunal to adjudicate on these complaints". Again, the matter is succinct to a degree, but one cannot say that it does not satisfy the Meek v City of Birmingham District Council test.[39]A complaint that we have only touched on so far is that the Tribunal fell into error in not directing a full merits hearing in respect of the question of whether the Appellant's complaints amounted to a continuing act. There is, in our view, no rule that only at a full merits hearing can the question be decided as to whether what are being examined are or are not separate acts, but are or are not one continuing practice or policy amounting to one continuing event. Owusu does not say so. Cast does not say so. Indeed, it would have been a very quick answer to the Cast case if that had been the law. It would not have been necessary for the Court of Appeal to go into the matter at length; it would simply have said "This is the sort of thing that can be ruled upon only at a full hearing".[40]Ms Monaghan argues that, so long as the acts alleged are capable of evidencing a discriminatory policy, then the matter must go to a full hearing to determine whether such a complaint is made out. No authority we have seen suggests that that is so, but we are absolved from the duty of ruling that to be a bad point of law by two considerations. First of all, it seems it was not argued below (and Ms Monaghan does not urge that it was) and, secondly, if it were to be the case, then the Tribunal would need to be shown the terms of the IT1 and/or of the Witness Statement, clearly alleging that there were here specified events which, it was therein alleged, together evidenced whatever discriminatory policy was being alleged. But here the IT1 contains no allegation of any discriminatory policy and the Witness Statement of Mrs Oliver does not contain one either.[41]Ms Monaghan adds that it is unfair that the question of policy or not should be ruled upon without the Respondent having been obliged to give evidence on the subject, but there is no suggestion by her that the Tribunal below was invited to demand evidence or require evidence from the Respondent or that it was then said that it was wrong for the matter to go ahead without evidence from the Respondent.[42]We have, we think, now dealt with all the points that Ms Monaghan (in a very capable argument) has put before us, but we are quite unable to find any error of law (and we emphasise, of law ) in the succinct Decision and Extended Reasons of this Tribunal. We detect no error of law and we must therefore dismiss the appeal.