MR G DRIVER v 1) PRESTON BOROUGH COUNCIL 2) MRS S HARRISON [2001] UKEAT 1411_00_1004

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1411_00_1004Case No Appeal No. EAT/1411/00 & EAT/229/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR G DRIVERAPPELLANT1) PRESTON BOROUGH COUNCIL 2) MRS S HARRISONRESPONDENT
Before
Mr Justice LindsayDate 10 April 2001
[1]APPEARANCES For the Appellant MR G DRIVER (The Appellant in Person) For the Respondents NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT MR JUSTICE LINDSAY (PRESIDENT) We have before us the appeal of Mr Geoffrey Driver in the matter Mr G Driver v 1) Preston Borough Council and 2) Mrs S A Harrison . The parties before us today consist only of Mr Driver, who is in person. Mrs Harrison and Preston do not appear. They have each put in written submissions or written comments which we have in mind, but they do not appear. Mr Driver has addressed us with moderation and shown himself to be an articulate and thoughtful individual well able to mount an argument, as he has done. Unfortunately, for reasons which we will explain, we do not feel that we in a position to help him.[2]The background is this. On 12 October 2000, Mrs Harrison lodged an IT1, a form of complaint, for victimisation contrary to the Sex Discrimination Act 1975. She joined both Preston Borough Council, her former employer, and Mr Driver as parties. She had been Assistant Director, Legal and Administration. Mrs Driver said, in an expansion to her IT1, that:
"In June 1998 the Council made permanent the 'acting-up' salary which was being paid to a colleague. He was treated more favourably than myself. I wrote to the Council on 9 June 1998 to indicate that I believed this was because of my action taken in the employment tribunal. On 11 June 1998 the Town Clerk/Chief Executive replied and said in his letter, "
If your tribunal action had not been instigated, I would have recommended to members that you should be personally protected at 90% of Band 10". She said:
"For the avoidance of doubt my complaint is of a continuous period of victimisation from 1996 to 13 July 2000. Alternatively, if it is the finding that this is not the case, it is submitted that the actions of Mr Driver and the council, on 13 July amounts to an act of victimisation in itself. For the purpose of clarity it is submitted the victimisation arose out of the previous complaint of sex discrimination and/or victimisation made against Mr Driver and the Council."
The incident of 13 July 2000 was mentioned; she said this:
"At a meeting of the Council of Preston Borough Council on 13 July 2000, the following, to the best of my knowledge, took place. Councillor Geoffrey Driver, Conservative member of the Council, and before councillors, chief officers, press and officers over which I had management responsibility made a statement, the content of which included the following:- - He referred to my previous claim to the employment tribunal of sex discrimination against himself and the Council. - He referred to me in a generally derogatory way. - He linked myself with allegations of corruption concerning the history of the council. - During or after the meeting Councillor Driver provided to the press a statement, which I understand reflects what he said during the council meeting."
There was the IT1 in expanded form joining, as I have mentioned, both the Borough Council itself and Mr Driver as Respondents.[3]Mr Driver wrote to the Employment Tribunal on 19 October - that is only a week after the IT1 had been presented - and said:
"I am not Mrs Harrison's employer, nor am I an employee nor a representative of her employer. It is therefore difficult to understand how Section 63(1)(a) or Section 63(1)(b) of the Sex Discrimination Act 1975 might apply to me."
On 25 October the Employment Tribunal wrote back to Mr Driver saying this:
"A Chairman of Tribunals has instructed that I write and say that the Applicant's employer is Preston Borough Council. You are on that council, thus you and your councilors [misspelt} are her employers. You need quickly to answer the applicant's allegations against you on their merits by way of amendment of your letter of 19 October 2000, which is taken as your Notice of Appearance."
No authority is given for the proposition 'you are on that council, thus you and your fellow councillors are her employers'; and of course, taken literally, it would appear to be a ground for joining every fellow councillor as a respondent. On 31 October, Mr Driver wrote back to the Employment Tribunal and said:
"I therefore respectfully request the Chairman to review his/her decision, and if he/she still determines that I am Mrs Harrison's employer, I should be grateful if you would send me the Chairman's Extended Reasons so that I can appeal that decision to the Employment Appeal Tribunal."
It will be remembered that the Tribunal's letter was cautioning Mr Driver to get on with the preparation and lodging of an IT3, a notice of appearance, which, wisely, he did. On 1 November 2000, he entered his IT3 which said, amongst other things:
"I categorically deny that I have victimised Mrs Harrison in any way. It is an undeniable fact that relations between us were considerably less than good when I was Town Clerk/Chief Executive, but since my election as a Councillor I have had very little contact with Mrs Harrison. In fact I believe I am correct in saying that I have not spoken to her at all during this time and in such contact as we have had, I have always behaved entirely properly."
A little later he says:
"Further, to the extent that Mrs Harrison relies on matters relating to any of my actions which occurred between May 1999, when I was elected to Preston Borough Council, and 12 th July 2000, as constituting acts of victimisation, I respectfully suggest that these are clearly out of time and the Tribunal has no jurisdiction to consider them."
On 2 November, the Tribunal replied to Mr Driver's earlier letter saying:
"The Chairman is not aware of having made any decision susceptible of review or appeal. In the letter to you dated 25 th October 2000, he was replying to a matter you raised in correspondence. At any rate, our letter of 25 th October tells you what the Chairman has to say about the points you raise. It is open to you at the hearing to raise the question of the Tribunal's jurisdictions if you think it worthwhile. How you deal with the situation, is, of course, a matter for you to decide."
The Tribunal was saying that there had in fact been no decision susceptible of review of appeal. On 8 November, Mr Driver lodged a Notice of Appeal with us here at the Employment Tribunal, he said, amongst other things:
"….. it is impossible for me, acting alone as an individual Councillor, to take any action that would discriminate against or victimise the applicant in terms of her employment with the Council."
[4]On 10 November, Preston put in its IT3. They said:
"The Applicant [Mrs Harrison] initiated earlier claims of sex discrimination and victimisation against the Respondents in 1996 (Case Nos. 26515/96 and 2400317196; Manchester Regional Office). Those proceedings were settled by way of a compromise agreement entered into by the Applicant and the First Respondent on 25 March 1997. The settlement was entered into by the First Respondent in good faith, without admission of liability, and in the interests of future harmonious working relations with the Applicant. The First Respondent has honoured the terms of the compromise agreement and has at no stage taken any action (or omitted to take any action) in relation to the Applicant (or subjected her to any detriment) in consequence of her having issued her 1996 claims."
Then a little later:
"It is denied that the First Respondent has failed to protect or otherwise adequately support the Applicant. In the alternative, it is denied that any such failure amounted to victimisation of the Applicant within the meaning of s.4 of the Sex Discrimination Act 1975, "the 1975 Act"."
Later still:
"The Originating Application was received by the Tribunal on 12 October 2000, exactly one day short of three months following the events of 13 July 2000. The First Respondent will contend that all matters of complaint preceding 13 July 2000 are "out of time" within the meaning of S.70 of the 1975 Act. In so far as may be necessary the First Respondent will contend (a) that there was no continuing act of discrimination on the part of the First Respondent, and/or (b) that it would not be just and equitable for the Applicant, who is legally qualified and fully conversant with anti-discrimination legislation (having pursued an earlier sex discrimination claim against the same parties) to be permitted to pursue matters of complaint pre-dating 13 July 2000."
One can see that there are serious points that will need to be dealt with at some hearing, either at the main hearing or at some Preliminary Hearing.[5]On 11 December 2000 Preston reacted to Mr Driver's appeal; they said, in the paragraph of the Respondent's answer form, which is headed, 'The grounds on which the Respondent will rely are', which they have completed as follows:
"(a) Further or in the alternative, [that is in the alternative to the grounds relied on by the Tribunal] the Second Respondent has not yet made any application for a preliminary hearing to determine the Tribunal's jurisdiction with regard to whether the Second Respondent should remain a party to the proceedings. (b) The Employment Tribunal has not yet made any substantive determination on the question of the Tribunal's jurisdiction with regard to whether the Second Respondent should remain a party to the proceedings. (c) Further or in the alternative, the Tribunal has by letter dated 2 nd November 2000 determined only that the jurisdiction issues are matters which should be dealt with at the full Tribunal Hearing, a date for which has yet to be fixed. (d) Further or in the alternative, the Tribunal does have jurisdiction to determine that the Second Respondent should remain a party to these proceedings and that the Second Respondent may have a liability to the Applicant under the provisions of Section 41(2) Sex Discrimination Act 1975."
On the same day, 11 December, Mrs Harrison, by her advisers, also reacted saying:
"The Appellant ought to have requested a directions hearing to consider the above issue if he was not satisfied with the Chairman's letter, as is common place."
On 24 January 2001, although we have no note of it in particular, there was a 'pre-hearing discussion' as it was called, at the Employment Tribunal. On 26 January the Employment Tribunal wrote a letter to Mr Driver, copied to the other parties, that purports to record what had happened at that 'pre-hearing' discussion. They said this:
"There will not be a preliminary hearing to determine whether the claims pre-dating 13 th July 2000 are "out of time"; it is clear that the Tribunal will have to hear evidence in relation to earlier matters, if for no other reason than to understand the actual background to the events of 13 th July. Orders for further particulars and discovery were made in accordance with the documents annexed hereto. At the hearing of this matter the evidence-in-chief of witnesses will be given by their reading witness statements, copies of which will be made available to the Tribunal and will have been exchanged between the parties at least 28 days before the hearing. A bundle of documents will be agreed at least 14 days before the hearing. This matter will be heard at the Liverpool Employment Tribunal at Cunard Building, Pier Head, Liverpool at 9.45am commencing on Monday 2 nd , Tuesday 3 rd , Wednesday 4 th , Thursday 5 th and Friday 6 th July 20001. No further notice will be given of those hearing dates."
So the hearing of the main case is now relatively imminent. On 8 February, Mr Driver sought a review of that letter. On 14 February, the Employment Tribunal, though not in terms saying that they declined a review, did in effect, decline a review. On 19 February a Notice of Appeal against the so called decision of 26 January or of 14 February was lodged by Mr Driver at the Employment Appeal Tribunal and on 13 March Preston opposed the new forms of appeal (if that is what they were), and so did Mrs Harrison.[6]That is the rather involved chronology of the matter. Mr Driver is an individual against whom relief is sought; he is named in box 5 of the original IT1 of Mrs Harrison and he has entered an appearance. If he wishes before the full substantive hearing to raise a contention that Mrs Harrison has no legal right to proceed against him, he can do so under Employment Tribunal rule 6. Rule 6 is headed, 'Entitlement to bring or contest the proceedings' and Rule 6(2) says:
"A tribunal shall not determine such an issue unless the Secretary has sent notice to each of the parties giving them an opportunity to submit representations in writing and to advance oral argument before the tribunal."
That has not occurred. There has been no opportunity, declined or accepted, to advance oral argument before the Tribunal. If, alternatively, the matter was regarded as proper for a pre-hearing issue, a preliminary issue, then, again, the position is that the rules have not yet been worked through. Rule 7(1), headed 'Pre-hearing review' says:
"(1) A tribunal may at any time before the hearing of an originating application, on the application of a party made by notice to the Secretary or of its own motion, conduct a pre-hearing review, consisting of a consideration of - [and then (c) is] : ……..(c) any oral argument advanced by or on behalf of a party."
Rules 7(2) and 7(3) say:
"(2) If a party applies for a pre-hearing review and the tribunal determines that there shall be no review, the Secretary shall send notice of the determination to that party. (3) A pre-hearing review shall not take place unless the Secretary has sent notice to the parties giving them an opportunity to submit representations in writing and to advance oral argument at the review if they so wish."
Again, that has not been done; there has been no opportunity given to advance oral arguments on the issues. Moreover, the issues here are proper to be resolved upon full argument and upon careful consideration, preferably by a 3 person Employment Tribunal Panel and, if it is possible, with professional legal representation. It may well prove necessary for the Tribunal to consider Moore v Bude Stratton Council [2000] ICR 271, a case in which I was a minority and Miss Switzer and another were the majority, in which we dealt with the really quite difficult issues that can arise inside a council. Another case that is already referred to in the papers is Gogay v Hertfordshire County Council, perhaps wending its way to the House of Lords; it has already been determined in the Court of Appeal. There is also a recent House of Lords case on how far the words, 'aiding' or 'knowingly aiding', are to be construed in the context of vicarious liability for discrimination and vicarious liability in general has recently been the subject in the House of Lords. These are important issues with wide possible implications. It may very well be (as the Tribunal has, in effect, already said) that facts will need to be determined in order to provide a sufficient background for the conclusions on points of law.[7]So far, the proceedings, if one can call them that, on the Tribunal's part, have not in our view amounted to decisions on law such as we can deal with them under Section 21(1) of the Employment Tribunals Act 1996 . Section 21 of that Act presupposes that the decision it refers to (whether it be right or wrong is immaterial) is one that has at any rate been completed, so far as the rules of the Employment Tribunal provide for completion of a decision. Alternatively, it could be that there had been a refusal by the Tribunal to complete the decision making process, but that is not here the case. Given that Rule 6(2) and 7(1), (2) and (3) have not yet been worked through, there is, in our view, no completed decision and hence no decision that falls within Section 21 of the Employment Tribunal Act 1996.[8]We can quite see that Mr Driver is disturbed at the thought that he is going to have to be embroiled in a long and complicated Full Hearing. Unhappily, this can sometimes happen. The Tribunal has a discretion to consider whether a point can usefully be separated out, or points can usefully separated out, and heard ahead of the main hearing or not. Here they have only so far decided, if they have decided anything, that they have not yet seen a case for separating out anything ahead of the main hearing. It is difficult to see that there is any error of law in that decision, if decision it can properly be described as. It will, of course, be open to Mr Driver to raise the issues of law that he wants to ventilate at the main hearing. Indeed, it would be prudent that he should, in writing, clearly indicate, both to the Employment Tribunal and to the other parties, precisely what the points are which he wishes to have decided at the main hearing and to indicate, if he can, such arguments as he would wish to address in support of his case. He has already done this in some detail in correspondence but so far it has not led to any decision properly-so-called on the point. It will be prudent on Mr Driver's part to set out his case on the issues of law well ahead of the main hearing in July. It is also open to him, (we do not say that this is what he has to do - simply a course which is open to him) to again ask the Tribunal to hear points ahead of the main hearing. His attitude today, with some reason behind it, is that that would probably be a waste of time, we are not going to disagree with him on that, but it is a theoretical possibility. Coming back to practical possibilities, the wise course for him now is clearly to identify the points of law which he wishes to have dealt with at the Full Hearing, and that he wishes them to be dealt with, as far as possible, as preliminary issues.[9]Reverting to what we can do, we have heard Mr Driver; he has some forceful arguments that he wishes to have decided but they have not yet been decided, and, as they have not yet been decided, there is as yet no decision that gives rise to points of law under the Employment Tribunal Act 1996 and accordingly we must simply dismiss the appeal.