MR E L G ROWSON v SINGER (UK) LTD [2002] UKEAT 499_01_2205

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 499_01_2205

Case No Appeal No. EAT/499/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR E L G ROWSONAPPELLANT

SINGER (UK) LTDRESPONDENT

Before

Mr Justice Lindsay

Date 22 May 2002

[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant MR JUSTICE LINDSAY (PRESIDENT) We have before us a preliminary hearing of the appeal of Mr E L G Rowson in the matter Rowson -v- Singer (UK) Ltd . No one appears for Mr Rowson, and he is not here in person either. Attempts have been made to telephone him today, but all that has been found is that the number has been constantly engaged. We have had no message indicating that he is sick, or that he has had difficulty travelling, or anything on those lines, and so we proceed on the footing that he has chosen not to attend.

[2]This matter goes back a long while. In December 1990, Mr Rowson left Singer's employment. Only on 1 February 2000, that is to say over nine years later, did he issue the relevant IT1. This time it was for victimisation and failure to supply a reference to potential employers, following an earlier application he had made in 1991 to an Employment Tribunal. He said that he had been dismissed in December 1990; that he had applied to an Employment Tribunal; that he had accepted an out of court compromise of his claim in May or June 1991, but, he claimed, that the company had neglected or failed to give him a reference thereafter and that that failure or neglect was a direct result of his having taken them to the Employment Tribunal. He said: "As a direct result of me making an application to the Employment Tribunal, culminating in an out of court settlement in my favour in May/June 1991, Singer's un-relenting victimisation has had far-reaching effects on my life for the past 9 years. I have been unable to secure full-time employment (except for a 2 ½ period - a job project which was abandoned). This has caused devastating financial loss, stress, loss of confidence and self esteem, anxiety and depression, and no hope of obtaining future employment if these circumstances are allowed to continue".

[3]There was no IT3 from Singer, but on 2 August 2000, they went into administration. On 10 November 2000 Mr Rowson totally amended his claim to become one of direct sex discrimination, and that became the sole way in which his claim was framed. He said that the company had settled with a Mrs McDonald at much the same time as they were settling with him, but had settled on better terms with Mrs McDonald than had been offered to him. She, it seems, got another job with the Singer company and, indeed, a company car, and he was not offered any alternative employment.

[4]On 10 November 2000, that is the same day, that amendment was accepted by the Employment Tribunal and the time-bar issue was raised. The letter of the Employment Tribunal to Mr Rowson of 10 November says:

"The hearing on Monday will be vacated and there will be another date set to determine whether you should be allowed to proceed with the claim of discrimination, given that the relevant events occurred more than 3 months ago."

Down to this date, 10 November 2000, Mr Rowson had given no indication of when it was that he first knew that Mrs McDonald had been treated more favourably than he had, and that putting it the other way round, he had been treated less favourably than she had been.

[5]On 18 January 2001, Mr Rowson wrote to the Employment Tribunal, but unfortunately we do not have that letter; it is unseen by us. On 19 January 2001, the Tribunal wrote to Mr Rowson indicating to him that the relevant evidence at the hearing would be as to his state of knowledge. They said:

"The relevant evidence will be that which relates to your state of knowledge, and the Chairman does not see how these orders could assist in that."

That was a reference to the Chairman turning down some application for Witness Orders which, as the letter indicates, the Chairman thought irrelevant at that stage. Plainly, the state of knowledge which was going to be material was, amongst other things, Mr Rowson's knowledge of when he first learned of the less favourable treatment that he alleged he had suffered, relative to the treatment of Mrs McDonald.

[6]On 8 February 2001, there were written representations from Mr Rowson. Unfortunately, again, we have not got them in front of us, and on 13 February 2001 there was a hearing at the Employment Tribunal. Now it is significant to note that Mr Rowson did not attend that hearing or put in evidence. He had put in the representations in writing that we mentioned, but he did not put in evidence, properly-so-called, and he did not attend.

[7]On 1 March 2001, the Decision was sent to the parties and it was the Decision of the Tribunal at Liverpool, under the Chairmanship of Mr D. Reed. It was unanimous and it was that:

"(i) The Originating Application was not presented to the Tribunal before the end of the period of 3 months beginning when the act complained of was done. (ii) We did not consider it was just and equitable that the Tribunal should consider the complaint. (iii) Accordingly, it is dismissed."

[8]On 14 March, Mr Rowson applied for a review to the Employment Tribunal and on 28 March, that was refused. On 5 April 2001, Mr Rowson put in a Notice of Appeal to the Employment Appeal Tribunal where he asserts that he had discovered that Mrs McDonald had been more favourably treated "at the end of 2000". It is a slightly odd allegation in that the end of 2000 - say late December 2000 - would have been after the date when he had amended his IT1 on 10 November 2000.

[9]On 4 October 2001, there was written argument put in by Mr Rowson for hearing at the Employment Appeal Tribunal and on 5 October 2001, the matter came before the Employment Appeal Tribunal as a preliminary hearing before a Tribunal headed by His Honour Judge Reid. Mr Rowson again did not attend, nor was represented. The Tribunal was troubled because they did not have the amended IT1, so they did not know how the amended claim had been framed, and accordingly the matter was adjourned generally. We now have that amended IT1, as I have explained. It is, however, a somewhat blighted matter as not only was there insufficient material before the Employment Tribunal on 5 October 2001, but also, even now, as I have mentioned, we have not got Mr Rowson's letter of 18 January 2001, nor his written representations of 8 February 2001, but we have to do the best we can with the material we have got.

[10]First of all, it was made clear to Mr Rowson by the Employment Tribunal's letter of 10 December 2000 that the issue at the hearing of the Employment Tribunal would be whether the time-bar, that is to say section 76(1) of the Sex Discrimination Act could be satisfied by him. It could be satisfied either by his showing that in some way the claim was laid within the three month period, or alternatively, that it was fit, on just and equitable grounds, to proceed under the provisions of section 76(5).

[11]The Employment Tribunal's letter of 10 November 2000 could arguably have said to be a little inept, because it refers to "three months ago", but, given that the IT1 was sought to be comprehensively amended by fax from Mr Rowson that very day, it may be correct. But, in any event, it was made clear that the question at the Employment Tribunal would be whether he could proceed, despite the lapse of time. It was thus incumbent on Mr Rowson at the hearing on 13 February 2001 to satisfy section 76(1) or 76(5).

[12]As to the date of the event complained of, what he was complaining of was the preferential treatment of Mrs McDonald and his consequential less favourable treatment, back in 1991. He said:

"I was made redundant from a senior management post which I had held for approximately 4 years. Mrs C McDonald was made redundant from a much lower position in the firm, as a trainer. As the terms of any tribunal settlement are confidential, I was unaware at the time that she was given a job, which effectively amounted to promotion in management with a company car. I assert that I should have been offered that position, for which I was experienced & qualified, over & above Mrs McDonald because I had been with the company longer & was more senior. I was not offered ANY alternative employment by Singer (UK) Ltd, therefore there has been Direct Sex Discrimination. The test of Direct Sex Discrimination states that two people in a similar situation have been treated differently, this was obviously to my detriment."

[13]Now that event was nearly ten years prior to the amendment and a long time prior to the original IT1 as well, so Mr Rowson's only hope was to show a just and equitable case within section 76(5). Obviously, a crucial factor would be when he first knew of Mrs McDonald's more favourable treatment, as he believed it was. His amendment did not give a date to his knowledge. His letter of 18 January 2001, unseen by us, was, it later appears, unclear and in any event, like his written representation of 8 February 2001, also unseen by us, was not, properly speaking, evidence. He unfortunately did not attend the hearing at the Tribunal on 13 February 2001.

[14]The Employment Tribunal, as to the important question of when he first learned of the alleged event of more favourable treatment of Mrs McDonald, was left; therefore, to do the best it could on the rather weak material had been given. It concluded:

"Unfortunately, in the absence of Mr Rowson, we were not in a position to quiz him as to his state of knowledge at the relevant times. As best as one can tell from the correspondence, he claims he became aware of the possibility that he had been improperly treated towards the end of 1999. There is no apparent explanation as to why it was that the Originating Application was not presented at that time, rather than on 1 st February 2000."

Of course, 1 February 2000 is within three months of the end of 1999, but it has to be remembered that the claim being considered by the Tribunal by this time, February 2001, was the claim as comprehensively amended in November 2000.

[15]In his Notice of Appeal Mr Rowson asserts that he discovered Mrs McDonald's more favourable treatment "at the end of 2000". If he had taken the trouble to attend the Employment Tribunal and had satisfied them of that, then the Tribunal might have decided otherwise than it did, but a Notice of Appeal as an appeal is not a vehicle for a fresh assertion of facts which could have been adduced at the Tribunal, but were not. If the Tribunal was mistaken as to his being aware of the possibility of his having been less favourably treated as early as the end of 1999, he has no one to blame but himself for not attending at the Employment Tribunal and not adducing evidence, properly so called, as to his learning of that matter only later than that.

[16]The Employment Tribunal, as it seems to us, made no arguable error of law on the evidence and explanation, such as it was, laid before them on the day. We should add that, even had Mr Rowson satisfied the Tribunal that he had learned "only at the end of 2000" which, as we mentioned earlier, is a little odd because it postdates its amendment of 10 November 2000, he could not have been sure of success, as the Employment Tribunal rightly looked at the balance of probably prejudice to the parties. One cannot jump from the fact that Mrs McDonald did do better than he in 1991 to the conclusion that there was therefore discrimination on the grounds of sex against Mr Rowson. What the reasons of the employer were, in the two separate cases of compromise with the claimants, would have had to have been looked into.

[17]The Tribunal said, in their paragraphs 14, 15, 16 and 17 as follows:

"14. There is, however, a far more fundamental issue in this case. The determination of the claim Mr Rowson seeks to bring would involve an investigation of the thought processes and attitudes of the people responsible for negotiating the respective settlements. Whilst, no doubt, documents exist evidencing what terms were in fact agreed, it seems to us that given the lapse of time it is wholly unrealistic to expect anyone to recall with any clarity the reasons why particular terms were concerned. 15. Mr Rowson may be able to claim otherwise - that he can recount in some detail exactly how the terms of settlement were presented to him and why he decided to accept them. Whether that is the case or not, we should be most surprised indeed if the same situation existed in relation to the Company. Furthermore, he cannot give evidence in relation to the settlement of his "comparator's" claim. 16. The determination of whether a claim ought to go ahead on the "just and equitable" ground involves, amongst other things, the balancing of the potential prejudice to each party. Clearly, if we were to decide that the claim could not go forward, Mr Rowson has lost the opportunity to bring a claim. On the other hand, if there were to be a hearing it is difficult to see how the Company would be able to mount any sort of defence. 17. Taking all the circumstances of this case into account, we considered that it would not be just and equitable for the case to go forward to hearing and accordingly it is dismissed."

We see no arguable error of law there; it was right for the Tribunal to look at the possible prejudice to the company side, as well as looking to Mr Rowson's position.

[18]We therefore dismiss the appeal here and now, so far as it relates to the Decision of 1 March 2001. The Notice of Appeal is also an appeal against the Employment Tribunal's refusal to review the Decision of 1 March 2001, the Decision in that case was short; we have detected no arguable error of law within it, and, accordingly, we dismiss the whole appeal as not disclosing any arguable error of law, even at this preliminary stage.