MS M AUGUSTIN v LONDON BOROUGH OF WALTHAM FOREST & OTHERS [2001] UKEAT 0636_98_2903

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0636_98_2903Case No Appeal No. EAT/0636/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS M AUGUSTINAPPELLANTLONDON BOROUGH OF WALTHAM FOREST & OTHERSRESPONDENT
Before
Mr Justice Hooper Mr B V FitzgeraldDate 29 March 2001
[1]APPEARANCES For the Appellants MR FRED EDWARD JNR Cain & Abel Law Firm 239 Missenden Inville Road London SE17 2HX For the Respondent MR WILLIAM BIRTLES (of Counsel) London Borough of Waltham Forest Legal Department PO Box 6932 Sycamore House Town Hall Complex Forest Road London E17 4UL THE HONOURABLE MR JUSTICE HOOPER For the reasons which we shall now give this appeal succeeds. At the conclusion of the first part of the arguments we informed the parties that we were unanimously of the view that restrictions had been placed upon the Appellant's reliance upon incidents prior to 28 May 1996 and that the Tribunal had not considered what probative value, if any, the incidents prior to 28 May 1996 might have.[2]The appeal is from a decision of the Industrial Tribunal, as it then was, presided over by Mrs Don. The Tribunal gave extended reasons sent to the parties in March 1998. The hearing took place over 3 days. The Appellant was in person and the Respondent was represented by Mr Birtles of Counsel. From that decision there was an appeal to this Tribunal. Reliance was placed on a number of different grounds but as the history of the proceedings in this Tribunal shows, they ultimately were reduced to one ground.[3]On the 23 October 1998 another division of this Tribunal presided over by Mr Justice Morrison, President, conducted a Preliminary Hearing. The Appellant was represented by Mr Wilson of Counsel from ELAAS. Today the Appellant has had the considerable assistance of Mr F Edward Jnr. Mr Justice Morrison ruled that there was only one possible ground and that related to evidence concerning incidents prior to 28 May 1996 in the 3 month period leading up to the originating application.[4]The Employment Appeal Tribunal felt that it was unable to reach a conclusion on the matter because there was no affidavit from the Appellant and no other material. The Tribunal therefore ordered the Appellant to prepare an affidavit and further ordered that that affidavit when prepared would be sent to Mrs Don and to the Respondents for their comments. That happened. The Appellant swore an affidavit, some 4 pages in length. Central to the issue of this appeal is what is contained in paragraph 7 onwards. In paragraph7.1 the Appellant identified various claims which did not come within the 3 month period. In paragraphs7.2 and 8 she wrote: 7.2 "The Chairlady also refused to allow me to adduce the fact that in 1992 and in 1993 I made two internal complaints against Bevan Betton of sexual harassment and victimisation. 8 The Chairlady also stopped me adducing evidence that supported instances of racial discrimination which would have gone to prove my case because she deemed them to support acts of discrimination which occurred outside the 3 month period." In paragraph 7 she wrote: "7 The Chairlady refused to consider other numerous instances of racial and sexual discrimination alleged in my Originating Application and Further and Better Particulars because she deemed them to have been made out of the 3 month period." (page 13 of the bundle)[5]That affidavit having been sent to Mrs Don as chairman of the Tribunal, Mrs Don wrote a letter to this Tribunal. In paragraph 4 she wrote (page 19): "I was conscious of the time constraints as stated in section 68(1) of the Race Relations Act 1976 and section 76(1) of the Sex Discrimination Act 1975 and dealt with these issues in the decision. If the Tribunal is wrong in law in the decision this is a matter for the Employment Appeal Tribunal. I agree that my members and I attempted to direct Ms Augusine to the relevant issues and not concentrate on the out of time issues ." [Underlining added] Mr Birtles fairly accepted that if the matter had ended there then the Respondent would have been in considerable difficulties in opposing this appeal.[6]The appeal then came before His Honour Judge Peter Clark on a further Preliminary Hearing. With the information to which we have referred, His Honour Judge Clark stated {page 22d):
"It seems to us that it is potentially arguable that the Tribunal fell into error by refusing to admit in evidence incidents relied on outside the limitation period, not to establish a cause of action but as background in support of the complaints of discrimination which were made in time. (See Din v Carrington Viyella [1982] ICR 256, 261 E-G per Browne Willkinson J). "
[7]The matter was ultimately set down for a Full Hearing before a Tribunal presided over by His Honour Judge Pugsley (page 64 and following). On that occasion the Appellant was represented as today by Mr F Edward Jnr and the Respondent by Mr Birtles. The Tribunal decided on that occasion to adjourn the matter for further information. In paragraph 4, the Tribunal felt that Mrs Don had not dealt with the issue of whether or not she and her members had restrained the Applicant from asking questions about incidents which were out of time. It was also suggested that Mrs Don may not have understood the particular significance of the matters in the affidavit to which we have made reference. That led to a further lengthy letter prepared by Mrs Don (see page 77-81 of the bundle). That letter received the support of the two other members of the Tribunal. In the opening paragraph Mrs Don refers to the allegation that she had restrained the Appellant from asking questions about issues which were out of time and which might have been probative of her complaint.[8]We turn to paragraphs 2 and 3 which we set out in full:
" 2 At 12.55 pm Ms Augustin commenced her evidence in chief. She referred to exhibit A3, page 1, dated 23 July 1991 and exhibit A1 Appendix 13 a reference to July 1995. She referred to events in 1995 and 1996. She stated: "
I spent all this time working and planning for the training of caretakers only to be blocked. The training was frozen and then I was asked why I was not doing training. These are the scenarios to show that I am not doing my job." At approximately 2.00 pm I explained that the Tribunal was only dealing with events three months prior to 27 August 1996 unless they were deemed to be continuing acts. A further reference was made to events occurring in 1992:
"I took out the grievance because in 1992 Mr Betton wrote me a harsh letter suggesting I had problems and should see the court welfare officer. The act taken in 1996 seemed to fall in line with what happened in 1992. There was an abusive of power which needed to be addressed."
At 3.15 pm she said:
"Early 1996 I nearly collapsed in the road from the sheer exhaustion of coping with the antics."
At 3.20 pm the Tribunal adjourned for Ms Augustin to have a break and the parties returned at 3.30 pm. She stated:
"I was harassed whilst I was pregnant in term of base. The intensity of that harassment."
Mr Birtles stated that he needed to establish whether Ms Augustin was pregnant between May 1996 and August 1996. Ms Augustin stated:
"I was pregnant in March 1993. I went on maternity leave in November 1993. Between April 1994 and September 1994 I went on maternity leave. I chose not to bring a complaint at that time because I was in the position I was in and the harassment I was experiencing. The first pregnancy I was represented at a grievance by a Unison steward who chose not to pursue his representation. In my second pregnancy, because I was concerned at the survival of my child, I hoped things would be better on my return."
I stated that the issue of harassment while pregnant was out of time and that a complaint could have been brought in time and that it was not just and equitable to extend the time limit. 3 The hearing on the second day commenced at 10.00 am. Ms Augustin stated that two of her witnesses, Mr Wade and Ms Jones, could not attend the hearing and the Tribunal agreed to read their statements. Ms Augustin then continued to read from her statement and referred to Mr Betton making a reference to black women's standard of dress. At 10.22 am I said that Ms Augustin was referring to incidents going back to 1992 and that this was not reasonable. A claim in relation to this could have been made earlier. Mr Birtles made the point that Ms Augustin had been represented by her Union and that she is a training officer and well educated. I said that Ms Augustin could continue to read her statement but should not go into minute detail concerning these acts. I tried to clarify what Ms Augustin was complaining about and she stated that Mr Betton treated her differently because she is black and that from 1991 to 1995 she was probably the only black woman under his line management. From 1995 to 1996 he might have had a couple. She stated:
"From what I have heard he treats the black people differently. They have not agreed to act as witnesses because they fear victimisation."
She continued to read from her statement until the Tribunal adjourned for lunch at 12.30 pm. Mr Birtles commenced cross-examination at 1.30 pm. At 2.55 pm, after she had been cross-examined and after the members of the Tribunal, had asked questions, I asked Ms Augustin whether she had anything to add. She said that she had not but that there may be a witness attending on her behalf on the next day. I noted that Ms Augustin's case was not closed at that stage. Mr Betton then commenced to read from his statement." Mr Edward relies particularly upon the chairman's account of what she explained to the Appellant at approximately 2:00pm on the first day, namely:
"The Tribunal was only dealing with events three months prior to 27 August 1996 unless they were deemed to be continuing acts."
[9]In fact the Tribunal were to find that they were not continuing acts and we are not concerned with any appeal from that decision. During her evidence the Appellant made a reference to her problems during pregnancy. At that point Mr Birtles said that he needed to establish whether she was pregnant between May 1996 and August 1996. She replied that she had been pregnant in 1993. What is of note in our judgment, is that Mr Birtles was "interrupting" the evidence to find out when it was that she was pregnant. In seems to us that Mr Birtles was doing that in order to discover whether she was pregnant in the period of the 3 months immediately preceding the originating application. That again in our judgment supports Mr Edward's submissions. Mr Edward relies on the last sentence of paragraph 2:
"…..the issue of harassment while pregnant was out of time and that a complaint could have been brought in time and that it was not just and equitable to extend the time limit."
Again, there can be no appeal from the decision that it was not just and equitable to extend the time limit. However, that sentence supports Mr Edward's assertion that restrictions were placed upon the evidence that the Appellant could give. In paragraph 3 the chairman of the Tribunal accepts that she told the Appellant not to go into minute details concerning the earlier acts. Mr Birtles relies on a number of passages in which the chairman says that she did not constrain the Appellant in her cross examination. However in our judgment that does not resolve the issue of whether or not she understood, as she says in her affidavit, that she was in fact restrained by the rulings that she had understood were given. Mr Edward relies upon paragraph 11:
"Even if we had allowed Ms Augustin to go into the minutiae…."
That, says Mr Edward, supports the proposition that there were the restrictions about which the Appellant complains.[10]It is clear that under the law as it now stands, the Appellant has no right to cross examine Mrs Don about what could be said to be some inconsistencies in the account that has been given from the time that she first asked about this matter in December 1998. We have to approach this matter in a way that is fair to this Appellant. If we take the view that there is credible evidence that she was restricted, as she states in her affidavit, then it seems to us that we are driven to the conclusion that the Appellant succeeds on this point.[11]We take the view that it was important for the Tribunal to consider what probative value, if any, the incidents prior to 28 May 1996 had. Clearly, under the authority of Din , regard may be had to evidence of matters occurring outside the time limit if they are capable of supporting, or even negating, the case being put forward.[12]Mr Birtles submits that it would very difficult for a Tribunal to determine the probative value of earlier incidents except at the full hearing of the case. We are not convinced of that. There may be cases where at a directions hearing or at a preliminary hearing, the Tribunal could properly conclude that incidents outside the period could have no evidentiary value when considering the events alleged to have occurred within the relevant period.[13]Turning to the decision in this case. In paragraph 4 the Tribunal sets out the reasons why it had concluded that the earlier alleged incidents were not continuing acts and why the incidents before 28 May 1996 were clearly out of time. As we have said we are not concerned with any appeal from that finding.[14]Mr Edward points to the last sentence of paragraph 5 of the decision in which the Tribunal wrote: "In all the circumstances it is not just and equitable to extend the time limit and we will not consider her complaints prior to 28 May 1996 ." [Underlining added] Mr Birtles draws our attention to a statement in the document prepared after the hearing before His Honour Judge Pugsley, in which the chairman wrote that the Tribunal was fully aware of the background evidence and took that into account when reaching this decision.[15]Faced with what is, again, an apparent conflict between what is set out in the decision of the extended reasons of the Tribunal and what is set out in the document that came into existence following the hearing before His Honour Judge Pugsley, we must prefer the decision of the Tribunal. We therefore conclude that the Tribunal did not ask itself the question - what probative value, if any, did the incidents prior to 28 May 1996 have? That would not be an end of the matter if the result of the case would necessarily be the same. For that reason we asked Mr Edward to take us through the IT1 and the Further and Better Particulars prepared on behalf of the Appellant, which can be found, in the case of IT1 at page 30-34 and the Further and Better Particulars at page 34(b)-34(f). There is no other material available to us to decide what precisely was the case that the Appellant was seeking to put forward. We do not have a copy of the witness statement and we do not have a copy of the chairman's notes. We do have, however, the detailed account by Mrs Don, given in response to the order made by His Honour Judge Pugsley.[16]We take the view that there are matters within the IT1 and the Further and Better Particulars that would probably not have any probative value. On the other hand there are others which might well have had probative value. It seems to us impossible for this Tribunal to enter into a detailed investigation of each one of those complaints to see whether or not it could have had probative value. Mr Birtles relies upon the fact that the Tribunal did in fact hear a considerable amount of evidence about the incidents before 28 May 1996. Nonetheless, the Tribunal did not weigh up what probative value, if any, that evidence had.[17]We asked Mr Birtles to make what submissions he considered appropriate to assist us in the task of deciding whether the result of the case would necessarily have been the same if the Tribunal had adopted what we say is the proper course. He drew our attention to the second sentence of paragraph 11 of the document which came into existence following the hearing before His Honour

Judge Pugsley:

"Even if we had allowed Ms Augustin to into the minutia of her out of time allegations we would still have preferred their evidence to that of Ms Augustin who presented as intelligent but misguided."
He relied also on the passage to which we have made reference about the Tribunal being fully aware of the background evidence and taking it into account. He then rightly took us to the decision and showed us how the Tribunal, insofar as the complaints within the 3 month period is concerned, believed the evidence given by witnesses called by the Respondent, rather than the evidence given by the Appellant or called by her.[18]We take the view that the result in this case would not necessarily have been the same if the matter had been approached in the manner which we have outlined. We are at a disadvantage in not having all the material. For example, we do not have material about the original complaints made by the Appellant in 1992 and 1993. According to the chronology prepared by the Appellant there was an internal grievance lodged against Mr Betton for sexual harassment in those 2 years. We take the view that it is now impossible for this Tribunal to conduct the difficult exercise of deciding conclusively that the result would necessarily have been the same. It would be for Mr Birtles to show that that was the case. It is not an easy thing to show and we take the view that he has not shown it on the material that is available to us. In those circumstances and for those reasons this appeal succeeds. We remit it for a Tribunal differently constituted. We invite the chairman to hold a Directions Hearing at which issues of admissibility may be considered.