MS LILLIAN ROBERTSON v DR DAVID WARD [2001] UKEAT 308_01_0612

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 308_01_0612Case No Appeal No. EAT/308/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS LILLIAN ROBERTSONAPPELLANTDR DAVID WARDRESPONDENT
Before
His Honour Judge D M LevyLord Davies of CoityDate 6 December 2001
[1]APPEARANCES For the Appellant MR J P HORAN (of Counsel) JUDGE D M LEVY QC Ms Robertson ("the Appellant") was employed by Dr David Ward ("the Respondent") as a Practice Manager at his rooms, first in Harley Street and later in Wimpole Street from October 1993 until 31 October 1999.[2]On 27 January 2000 she presented an Originating Application to an Employment Tribunal complaining of unfair dismissal and sexual discrimination. That application was heard by an Employment Tribunal sitting at London (Central) on 18 - 20 December 2000. By a Decision with long Extended Reasons promulgated on 8 February 2001 both her complaints were dismissed. Against that Decision the Appellant now appeals, and this is the second preliminary hearing of her appeal. Both parties are represented by Counsel, who also attended a directions hearing held on 27 July 2000.[3]At that hearing, the issues in the case were identified. Those issues are set out at paragraphs 3 and 4 of the Extended Reasons. In summary, the Appellant complained of sexual harassment by the Respondent, amounting to unlawful sexual discrimination, which entitled her to treat herself as constructively and unfairly dismissed.[4]Sexual harassment has been defined as unwanted conduct of a personal nature or other conduct based on sex affecting the dignity of women and men at work. It is often a matter of fine judgment for the fact-finding Tribunal to determine where the line is to be drawn between lawful and unlawful conduct.[5]In this case the Employment Tribunal had the advantage of hearing both protagonists' evidence. They found both sets of evidence lacking in frankness. They had to determine the factual position. They considered the various allegations made by the Appellant and the different account given by the Respondent and concluded, overall, that such inappropriate behaviour of a sexual nature indulged in by the Respondent was not unwanted by the Appellant. She was a willing participant in the relationship which grew up between them. There was no unlawful discrimination by the Respondent. They therefore found that the complaints of sexual discrimination were made out of time and that it was not just and equitable to extend time.[6]As to the question of constructive dismissal, upon which the claim for unfair dismissal depended, they found that the Appellant resigned from the employment not because of any breach of contract by the Respondent, but because she had experienced ophthalmic problems. Accordingly she was not dismissed, constructively or otherwise, and consequently her claim of unfair dismissal also failed.[7]The Appellant lodged a Notice of Appeal dated 22 February 2000. There was a preliminary hearing of her appeal which came before a panel headed by Judge Peter Clark on 4 July 2001. On that occasion, she had the advantage, which many litigants at this Tribunal have, of seeing a member of the Bar on the ELAAS scheme, Mr Horan, who identified from the hundred or so points in her Notice of Appeal, one or two which he thought might validly come before a Tribunal.[8]Judge Clark gave leave to the Appellant to amend the Notice of Appeal within fourteen days of the Order, the other grounds of appeal being abandoned. It is those in the amended Notice of Appeal which is before us. The amended Notice of Appeal reads:
"1. The Appellant strikes out in the present paragraph 6 of the notice of appeal from the decision of an Employment Tribunal and substitutes the following:….."
It is common ground that the whole of the previous Notice of Appeal was struck out. What are set out in ground 6 in 6.1 and 6.2 are two allegations as to behaviour of members of the Tribunal during the hearing. Ground 6.1 is:
" the allegation that two layman of the Tribunal, at various times during the case appeared to be sleeping. The Tribunal therefore has failed to hear all the evidence as the law requires."
The Chairman and the side members of the Employment Tribunal commented on that ground. Having had advice from Counsel as to that, the Appellant has withdrawn that ground of appeal.[9]The other grounds in the appeal suggest that there were findings of fact made with which the Appellant disagrees, that is 6.2.1 - 6.2.4, and 6.2.5 which has three sub-paragraphs that suggest that findings of fact made in paragraph 78 of the Decision were not evidence which she had given.[10]She has sworn an affidavit which has some curiosities about it. The amended Notice of Appeal is dated 17 July, there is a Notice of Appeal which says at the top of it that it was sworn on 16 July, but apparently, from the foot of it, it was sworn on 17 August. However that may be, her affidavit in support of her amended Notice of Appeal says that she believes all facts and matters referred to in the amended Notice of Appeal are true and correct.[11]In connection with the grounds of appeal in 6.2.1, 6.2.2, 6.2.3 and 6.2.4, having looked carefully, as we all have, at the extended and careful findings of the Tribunal which sat for a number of days hearing this matter, we are satisfied these are findings of fact which the Tribunal were entitled to make.[12]As to the findings it made in paragraph 78, we do not have any real evidence to contradict the facts as found but it is clear that the paragraph considers the grounds of submission by her Counsel as to why it would be just and equitable to extend the time for bringing an appeal, when it was clearly brought out of time.[13]It is clear to us that from the four corners of the Decision, and looking at the IT1, that the Appellant must have known about the time limits at a time which would have enabled her to bring the complaints in time. Bearing in mind matters which are not challenged, and looking at the case in the round, we consider that it was quite appropriate for the Tribunal not to have extended time in the circumstances of the case, and in the circumstances of the findings which they had made.[14]In case we are wrong about the Tribunal's extension to extend time, in considering the Appellant's appeal we also have taken into account the conclusions of the Tribunal on the merits of her claim of sex discrimination.[15]In our judgment, this Tribunal, after a long and fair hearing, reached a conclusion which was merited on their findings and on which there was evidence for their findings. In these circumstances, we dismiss this appeal at this stage. We do not consider if it went further it has any chance of success.