MISS E ROSCOE v IMPERIAL HOME DECOR GROUP (UK) LTD [2002] UKEAT 1141_01_1403

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1141_01_1403

Case No Appeal No. EAT/1141/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS E ROSCOEAPPELLANT

IMPERIAL HOME DECOR GROUP (UK) LTDRESPONDENT

Before

Mr Justice Lindsay

Date 14 March 2002

[1]APPEARANCES For the Appellant MR ROHAN PIRANI (of Counsel) Messrs Thompsons Solicitors Acresfield 8 Exchange Street Manchester M2 7HA THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) We have before us by way of a Preliminary Hearing the appeal of Miss E Roscoe in the matter Roscoe v Imperial Home Décor Group (UK) Ltd . This morning Mr Pirani has appeared for Miss Roscoe, the Appellant.

[2]On either 16 February 2001 or, perhaps, 23 February 2001, it was accepted that Miss Roscoe's employment had ended. On 1 May 2001 she put in an IT1 for "sexual harassment discrimination". She had not been employed very long, only for some eleven months, down to either 16 or 23 February 2001. She complained of a specific incident which she said was one of sexual discrimination on 9 January 2001. She said:

"I complained to my manager about sexual harassment discrimination. Soon after that my contract was terminated. The sexual harassment came from my supervisor whom I work in the same room as. The incident happened at approx 7am on Tuesday 9 th January and I went to see the manager at approx 8am that same day. The supervisor was not moved or suspended so I had to continue working with him right up to my termination on 16 th February."

In fact, in box 4 – 'Please give the dates of your employment' – she had said that she had been employed to 23 February 2001 but I do not think anything turns on the added week. It was plainly a home made IT1. It is in handwriting and, as we have cited it, less than grammatical, but she does identify solicitors as acting for her. It would seem that they had not actually begun to act for her in practical terms at the date of the IT1.

[3]On 4 May 2001 Miss Roscoe was told that there would be a Preliminary Hearing on whether the claim was out of time. It might be that it was at that stage that the solicitors, in practical terms, began to act for her. On 24 May there was an IT3. The allegations were denied and the point was taken that the IT1 was, in any event, out of time. On 16 July 2001 a letter, which is unseen by us but summarised adequately in the papers, was written to the Employment Tribunal by the solicitors acting for Miss Roscoe. It sought amendment. It said:

"It is my client's case that the specific acts of discrimination of which she complains are three-fold. 1 That her supervisor spoke to her in an offensive and derogatory manner thereby according her less favourable treatment on grounds of her sex. 2 The applicant complained about this behaviour to her supervisor but no investigation was undertaken, contrary to the respondent's own policies. 3 As a result of the applicant making this complaint of sexual harassment her employment was terminated by the respondents summarily on 16 th February 2001. The applicant submitted her Originating Application within three months of the termination of her employment, which she alleges was brought about due to her complaint of sexual harassment. Accordingly, the applicant would submit that her claim is within time and should proceed to a full hearing."

[4]On 27 July 2001 there was a hearing at the Employment Tribunal on the preliminary point about the time bar. By now Miss Roscoe was fully represented by solicitors. On 6 August 2001 the decision of the Tribunal was sent to the parties. It was the decision of the Tribunal at Manchester under the Chairmanship of Mr M L Creed and it was:

"The unanimous decision of the Tribunal is that:- (i) the letter from the applicant's solicitors dated 16 th July 2001 does not constitute an amendment to the Originating Application and is treated by the Tribunal as being a new claim. (ii) the letter from the applicant's solicitors dated 16 th July 2001 alleging victimisation contrary to the Sex Discrimination Act 1975, as amended, has not been presented in time applying the provisions of the 1975 Act. The Tribunal does not have jurisdiction to entertain the application. (iii) the claim for unlawful direct discrimination set out in the Originating Application has been presented outside the statutory time limit under the Sex Discrimination Act 1975, as amended, and is out of time. The Tribunal does not have jurisdiction to entertain the application."

[5]On 17 September 2001 there was a Notice of Appeal. Of the three alleged types of claim that are said to be wished to be raised, they are, firstly, harassment as at 9 January 2001; secondly, a failure of the employer to follow its own procedures on receiving the complaint as to harassment; thirdly, victimisation by way of the dismissal having taken place on account of the earlier complaint. The second and third of those would prima facie not have been out of time as at 1 May 2001 because the failure, it could be argued, would have run on down to the end of employment on 16 or 23 February 2001. As to the dismissal, that was either on 16 or 23 February 2001. The question as to those types of claim was thus, arguably, not whether they were out of time but whether they had been sufficiently touched on in the original IT1 of 1 May so that the letter of 16 July could fairly be regarded as a further expansion or explanation of something with which the IT1 was already pregnant.

[6]The Employment Tribunal, very strangely referring to the balance of probabilities, a test which is used in the assessment of evidence, said:

"The Tribunal was satisfied on the balance of probabilities that the applicant's claim which was contained in her Originating Application related to a single act of direct sex discrimination which occurred on 9 th January 2001. It did not contain a claim for victimisation arising out of her dismissal on 23 rd February 2001. Her Originating Application contained a free standing claim in relation to the events which occurred on 9 th January 2001 and were unconnected with the events which occurred on 23 rd of February 2001 which she now relied upon in her solicitor's letter which had been submitted on 16 th July. The letter dated 16 th July contained a new claim for victimisation contrary to the Sex Discrimination Act 1975, as amended, and there was no causative link in the Tribunal's judgment between the contents of the Originating Application and the claim which was set out in the solicitor's letter in July 2001."

One has to recognise that post hoc is not necessarily propter hoc . However, where a litigant in person makes a complaint by IT1 of discrimination and says, in that IT1, that soon after an earlier complaint of harassment had been made to her employer her contract was terminated, it is, in our view, arguable, given the degree of flexibility that should and frequently does attend upon the construction of IT1s, that she should fairly be taken to be saying that her employment was terminated because of the earlier complaint, or, as the statute puts it, by reason that the earlier complaint of sexual harassment had been made. After all, she had said:

"I complained to my manager about sexual harassment discrimination. Soon after that my contract was terminated."

[7]Equally it seems to us arguable that the IT1's spelling-out that she complained to management within an hour of the event complained but that the alleged discriminator was not moved or suspended and that she therefore had to continue working in the same room as him, was, remembering it to be an IT1 that was home made, an allegation pregnant with a complaint of a continuing failure to enquire into and act upon the complaint of harassment which had so promptly been reported by her. It is difficult, in our view, to regard the Employment Tribunal's decision as including an adequate reflection on how far the letter of 16 July 2001 was a clarification of something already there in the IT1 rather than being a wholly new cause of action.

[8]Another as yet inexplicable feature of the Employment Tribunal's decision is their repeated reference to cross-examination. They say:

"The Tribunal paid due regard to the question of prejudice which attached to the respondents and the fact that the respondents had not been afforded the opportunity to cross-examine the applicant with regard to the late submission of her Originating Application ."

A little later, they say:

"Furthermore the Tribunal was not able to examine any explanation under cross-examination as to why the matter was not proceeded with within the statutory time limit."

Yet the Applicant herself was at the hearing and gave oral evidence. The Tribunal say so in their paragraph 3 where they say:

"The Tribunal heard some oral evidence from the applicant but not on issues which were relevant to the Tribunal's consideration."

Why was it that the Tribunal could not question her as to why there had been delay?

[9]All-in-all it seems to us arguable – and that, of course, is all that we are concerned with at this stage – that the Tribunal erred in law in refusing to allow the letter of 16 July to be regarded as either an amendment or the inception of a permissible amendment rather than as a statement of something wholly new. That deals with the second and third of the three claims that we described.

[10]As to harassment as at 9 January 2001, the Tribunal, whilst saying that they pay regard to prejudice to the Respondent if the claim was to be permitted to proceed out of time, never actually spell out what that prejudice was; nor do they distinguish between the prejudice which the Respondent would have suffered had the case begun in time and the prejudice they would suffer were it to be allowed to start a little later on 1 May 2001, only a few days out of time. Again, puzzlingly, the Tribunal refer to the lack of opportunity on the Respondent's part to cross-examination Miss Roscoe. It is, thus, in our view, arguable, that the Tribunal erred in law in its assessment of whether, as regards the sexual harassment as at 9 January 2001, it was just and equitable to extend time for the presentation of the IT1.

[11]For the reasons we have given, we therefore see that the matters raised by the Notice of Appeal are arguable and hence fit to go to a Full Hearing. Skeleton arguments are to be exchanged between the parties and sent to the Employment Appeal Tribunal not less than fourteen days before the hearing. It would seem, in our view, to be a Category B case. We will ask Mr Pirani for his notion of the time estimate. Also he has foreshadowed the possibility of a wish to amend the Notice of Appeal. We will ask him about that too. Mr Pirani Sir, dealing with the estimated time, I feel ……………………..[inaudible] to involve the number of cases which inevitably will be referred to, I think it would be closer to three hours rather than an hour and a half. Lindsay J I would have thought a morning would cover it, should it not? Mr Pirani Yes Sir. Lindsay J Half a day. Mr Pirani Sir, also with regard to the Notice of Appeal, I would be grateful for permission to amend that slightly in accordance with my skeleton. Lindsay J What precisely is the amendment you want to make? Mr Pirani Well, I argue that the Tribunal fettered its discretion when considering the time limit issue. It may be included in the error of law as is already articulated but I particularise that to say that they said that - 'we find it impossible to decide in the absence of an explanation for the delay to exercise our discretion in favour of the Applicant'' – I say that is an unlawful …………………… of their discretion ………………it falls within the parameters of the Notice of Appeal as drafted, I would certainly be content with that. Lindsay J I am a bit loth to give a rather general and unspecific leave, but we leave it like this, that if within fourteen days you submit to me a draft which I then take the view falls within the case as you have described it and does not go outside that, then that amendment can go forward. Mr Pirani I am extremely grateful for that Sir. Lindsay J On that basis we give conditional leave to amend and the matter goes to a Full Hearing.