BLOOMBERG L P v VANDA MARIA SIMOES CORDEIRO [2001] UKEAT 739_00_1211

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 739_00_1211Case No Appeal No. EAT/739/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
BLOOMBERG L PAPPELLANTVANDA MARIA SIMOES CORDEIRORESPONDENT
Before
His Honour Judge WilkieDate 12 November 2001
[1]APPEARANCES For the Appellant MR MARTIN GRIFFITHS (of Counsel) Instructed By: Messrs Olswang Solicitors 90 Long Acre London WC2E 9TT For the Respondents Respondent debarred from defending the appeal JUDGE WILKIE QC: This is an appeal by Bloomberg L P against part of a decision of the Employment Tribunal, sitting at Stratford on 11 April 2000, which decided that the Tribunal had jurisdiction to consider the complaints of the applicant. Before the Employment Tribunal both the applicant and the respondent were represented by Counsel and, indeed, Mr Griffiths of Counsel represented the appellant in the Employment Tribunal and before us today.[2]The originating application was settled on behalf of the applicant by MacFarlanes, Solicitors, on 5 December 1999. Her complaint was for unfair dismissal, harassment, sex discrimination and breach of contract. In effect, there were three separate and distinct claims: for unfair dismissal based on constructive dismissal; for breach of contract again based on constructive dismissal; and for sex discrimination which also encompassed harassment.[3]The originating application is, as one might expect, clear and competently set out. The claim for sex discrimination is contained within paragraph 24 which reads:
"The Applicant further believes that Lex Fenwick's harassment and intimidatory behaviour towards her (for which the Respondent is vicariously liable) amounted to unlawful harassment and discrimination."
[4]This paragraph is in clear distinction to paragraph 23 and paragraphs 25 and 26. Paragraph 23 reads:
"The Applicant considered that her demotion without consent, the transfer of her duties to other members of staff, her subsequent re-assignment, the Respondent's failure to provide any adequate explanation of her demotion and the abusive manner in which she has been treated amounted to a fundamental breach of her contract of employment with the Respondent."
Paragraph 25 reads:
"The applicant considered that the conduct of the Respondent amounted to unfair constructive dismissal. In view of this, the Applicant gave written notice on 6 August 1999 of her resignation from the Respondent, such notice to expire on 6 September 1999 at the end of her contractual notice period. The Applicant, in her letter of resignation, reserved the right to take action against the Respondent for unfair constructive dismissal. The Applicant duly claims compensation for her unfair dismissal by the Respondent."
Paragraph 26 reads:
"The Applicant also claims damages for breach of contract and recovery of bonuses due under the Applicant's contract of employment."
[5]It is apparent, therefore, that the originating application, was submitted and received on 5 December 1999, was in connection with a contract of employment which terminated on 6 September 1999 pursuant to a notice given on 6 August 1999, and fell right at the very end of the three-month period within which claims for unfair dismissal must be lodged. The decision against which this appeal is launched in respect of a decision concerning time limits as applied to the claim for sex discrimination.[6]Before the Employment Tribunal there was an argument presented by the appellant that because of the interplay between the date of the letter of the resignation, the operation of the notice period and the date of the originating application, all of the claims were out of time. There is no appeal against the conclusion of the Employment Tribunal to the effect that the claims for unfair dismissal and for breach of contract were in time and had been lodged at the last moment. What is said, however, is that the decision of the Employment Tribunal on the sex discrimination claim, is manifestly in error. The reason for that is that it is clear from paragraph 24 of the originating application that the claims for sex discrimination were discrete from the claims for constructive dismissal and breach of contract, albeit, the incidents concerned were said to have led into the ultimate claim for unfair constructive dismissal.[7]There is no suggestion in the originating application that the sex discrimination complained of constituted a continuing series of actions, one of which and the last of which, was the dismissal. On the contrary it seems perfectly clear from the way that the application is constructed that the allegations of sex discrimination are separated off from the run of events upon which the applicant relied in respect of those other claims.[8]It is clear from the findings of fact made very carefully by the Employment Tribunal that the latest incident of harassment and intimidatory behaviour by Lex Fenwick, one of the appellant's employees, cannot have occurred later than late June 1999. It therefore follows that the launch of proceedings for sex discrimination, relying on those specific actions, on 5 December 1999, fell outside the three-month time limit.[9]It seems to us manifest that the Employment Tribunal erred in law in treating all the claims essentially as one series of continuing acts, bearing in mind the careful and specific way in which the separate claim for sex discrimination had been formulated in the originating application. Therefore we agree with Mr Griffiths that, insofar as it is a claim for sex discrimination, the conclusion of the Employment Tribunal that it had jurisdiction because the claim was in time, is wrong in law and should be overturned.[10]That would leave a possible argument that, notwithstanding the fact that the sex discrimination claim was submitted out of time, nonetheless it might be admitted by the Tribunal for consideration under the just and equitable principle which permits Tribunals to extend time. Whilst in theory that might be so, it is clear to us from the terms of the Tribunal decision and from what we are told and accept from Mr Griffiths, that there was no argument addressed to the Tribunal by the applicant that if her arguments on the strict time limit failed there was a fall-back position in respect of the just and equitable jurisdiction to extend time. That this must be right is underlined by the concluding words of the Employment Tribunal's decision which make it clear that their conclusion was that the applications were presented "in the nick of time" but that if the representatives had miscalculated the last date, they were minded, on this case to take the position that that would be no excuse. Therefore we not only overturn the decision of the Employment Tribunal but we do so in terms that the sex discrimination claim made by Ms Cordeiro is dismissed. Of course that will leave outstanding to be determined in due course the unfair dismissal claim and the claim for breach of contract and there is nothing in this decision which would preclude Miss Cordeiro adducing evidence of her complaints of harassment and intimidation by Lex Fenwick as material supporting her claims of unfair dismissal and breach of contract.[11]Our decision, therefore, is that the appellants no longer face any claim for sex discrimination arising out of these incidents. We may say that we have been particularly assisted by Mr Griffiths, not only by his written skeleton argument, but by his oral presentation, especially in the light of the fact that the respondent to this appeal has been debarred from being represented at the appeal by reason of her failure to respond to various orders made by the Employment Appeal Tribunal in the course of this appeal.