A v R [2002] UKEAT 898_02_0711

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 898_02_0711

Case No Appeal No. EAT/898/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

AAPPELLANT

RRESPONDENT

Before

His Honour Judge J Burke

Date 7 November 2002

[1]APPEARANCES For the Appellant MR BERNARD CULSHAW (Representative) Humberside Law Centre 95 Alfred Gelder Street Hull E Yorks HU1 1EP JUDGE J BURKE QC : This is the preliminary hearing of the Appellant's appeal against the decision of the Employment Tribunal sitting at Hull, chaired by Mr Hildebrand and sent to the parties with extended reasons on 4 July 2002. By that decision the Tribunal dismissed the Appellant's complaint of sex discrimination on the grounds that it was presented outside the prima facie time limit, established by section 76 of the Sex Discrimination Act 1975 , of three months from the date of the act complained of and found that it was not just and equitable to extend the time to allow the Appellant's claim to proceed despite its presentation out of time.

[2]It is not in dispute that the complaint was presented outside the three month time limit; it was presented to the Tribunal in the middle of February 2002 and the last act complained of was 27 August 2001, after which act the Appellant left her place of work where the discrimination allegedly occurred and went off sick. We need say no more about the nature of the discrimination, save that it consisted, or allegedly consisted, of harassment.

[3]The Notice of Appeal, drafted on behalf of the Appellant by the Humberside Law Centre who now act for her, attacks the finding of the Tribunal that it was not just and equitable to extend the time. There are many grounds of appeal set out in the Notice of Appeal. We propose to allow this appeal to go through to a full hearing on some of those grounds, but not on others. It is necessary in the circumstances that we should identify those grounds which we regard as arguable.

[4]Mr Culshaw, who has appeared this morning on behalf of the Appellant (and we are grateful to him for his attendance and for his arguments) has helpfully indicated to us that paragraph 6.1 in paragraph 6 of the grounds of appeal is not intended in itself to be a free-standing ground, but rather as a piece of background setting; and similarly paragraph 6.1.1 which points out that the Tribunal refer in their Decision to section 65, as opposed to section 76(5) of the Act. The ease with which one can make such a drafting or typographical error is evidenced by the fact that in the Notice of Appeal itself section 76(6) is quoted instead of section 76(5); and we have no doubt that it is not arguable that by simply referring to a wrong number of the section there is any ground of appeal against the Tribunal's Decision. It is plain from the Decision as a whole that what the Tribunal had in mind was that they were referring to and dealing with the discretion given to them by section 76(5).

[5]The same applies to paragraph 6.1.2 of the Notice of Appeal. The wording of section 76(5) may not be set out but the failure to set it out is not of itself an arguable error of law. As to paragraph 6.1.3 Mr Culshaw accepts that, although the Tribunal did not set out their duty to consider all the circumstances, the real question is not whether they actually set out the duty but whether they carried out the duty and, therefore, that ground again does not of itself give rise to a free-standing arguable error of law.

[6]Paragraph 6.1.4 we regard as rather different. In that paragraph the Tribunal set out what they saw as the central issue which was before them on the facts, namely whether it was just and equitable for the Appellant to be allowed to delay bringing a complaint, where there was an absence of medical evidence that she was unable or seriously handicapped in making such a complaint but only evidence that, as the Tribunal put it, she "lacked sufficient personal strength to do so". In the Notice of Appeal in paragraph 6.1.4, which has to be linked with paragraph 6.1.5, the criticism that is made is that in that last sentence in paragraph 7 the Tribunal are making an incorrect statement of the law which they then contradict in the first sentence of paragraph 8. We do not so read the Decision, nor do we think it arguable that it can be so read. We do not regard the last sentence of paragraph 7 as a statement of law, as opposed to an identification of a factual issue, whatever description is given to it in the first sentence of paragraph 8. However, it does seem to us that it is arguable that the statement of the issue, which the Tribunal set out in paragraph 7, is of itself, potentially in error. The inclusion of the words "an applicant aware of the possibility of bringing a complaint"; may suggest that the Tribunal were, in posing that question considering the Appellant as able to bring a complaint and aware that she was able to do so for a longer period than actually she was, the Tribunal having subsequently found that she did not know that she could bring a complaint until at the earliest mid-December. On that basis paragraph 6.1.4 contains an arguable ground of appeal, although paragraph 6.1.5 does not.

[7]Paragraph 6.1.6 refers to the fact that, in paragraph 7 of the Decision, the Tribunal directed themselves to look to see whether the Appellant was incapable, because of her medical condition, of presenting a complaint during the period from 27 August onwards, whereas it is submitted on behalf of the Appellant that that test is setting the standard far too high, and that Tribunal should have looked at the whole of the medical evidence to see whether that medical evidence indicated no or some, or even a substantial explanation for her failure to act earlier and looking at incapacity alone was setting too stringent a test. We take the view that that is arguable and paragraph 6.1.6, as with paragraph 6.1.4, should be permitted to be argued at a full hearing.

[8]Paragraph 6.1.7 criticises the way in which the Tribunal approached what the Tribunal described as "factor (d)" of the five factors set out as applying to a case such as this, in paragraph 8 of the Decision of the Employment Appeal Tribunal, in British Coal Corporation v Keeble

[1997] IRLR 336

. Factor (d) is the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action. Mr Culshaw's point here is that in paragraph 8 of their Decision the Tribunal have confused the Appellant's knowledge of the facts giving rise to the cause of action with her knowledge that she could make a claim. He further criticises the use of the words "the applicant accepted ability to claim" which appear in that sentence. We take the view that this point too is arguable and should go through to a full hearing.

[9]Paragraph 6.1.8 of the Notice of Appeal criticises the Tribunal's approach to factor (e) identified in Keeble , that is to say "the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action". About that the Tribunal said in paragraph 8, that "no attempt was made to take advice until the beginning of February 2002 and that was some considerable time after the applicant knew of the possibility of taking action". The suggestion that Mr Culshaw makes is that the Tribunal have not clearly made a finding as to when, first, the Appellant did know that there was a possibility of taking action because they do not make it clear whether she first knew in mid-January or in mid-December. Paragraph 6 of the Tribunal's Decision is, in our view, perfectly clear. The Tribunal found that she knew at the latest by mid-January and, more likely, by mid-December; that is a finding that probably she knew by mid-December and certainly by mid-January; thus the time at which she first knew is found to have been mid-December; and we do not see any argument that can arguably be addressed that the Tribunal approached paragraph (e) in the wrong way.

[10]Paragraph 6.1.9 relates to prejudice. The decision in Keeble makes it quite clear that, in addition to the five specific factors which are listed by the Employment Appeal Tribunal in that case, the Tribunal in considering their discretion under section 76(5) of the Act also have to consider the prejudice which each party would suffer as a result of the decision which has to be made. It appears to us to be at least arguable that this Tribunal, while it did go through the five specific factors set out in British Coal Corporation v Keeble , did not consider or address their minds to the question of prejudice to each side arising from, on the one hand, a decision in favour of the Appellant and, on the other hand, a decision in favour of the Respondent. Thus, paragraph 6.1.9 is arguable in our judgment.

[11]Mr Culshaw has abandoned paragraphs 6.2 and 6.3 and we need say no more about it.

[12]In paragraph 6.4 Mr Culshaw draws our attention to the fact in a case in which the timings might be said to be relatively tight, because there is no doubt that the Appellant did seek advice at the beginning of February and the earliest time of which she knew that she could make a claim was mid-December, that the Tribunal at one part of their Decision say that the application to the Tribunal was not made until 28 February and in another part of their Decision say that it was made on 18 February. While the Notice of Appeal suggests that that was a clerical error, Mr Culshaw today has suggested that it may not have been a clerical error but an error in the minds of the Tribunal in their approach to the chronology of this case and because of the tightness of the chronology, such an error may have had an effect on their minds and we think that too is arguable and should go through for a full hearing.

[13]Paragraph 6.5 criticises the Tribunal for saying in paragraph 8 of their Decision:

"We do not propose to comment regarding the extent to which the cogency of the evidence is likely to be affected by the delay"

. Had the Tribunal gone no further, that might have given rise to an arguable point; but, having said that they did not propose to comment, as we read this Decision, the Tribunal went on to make precisely such a comment in the next sentence and to make a comment and, indeed, a decision in relation to this part of the case, in the Appellant's favour; for they said:

"The events described in the application cover a period of some five years and therefore it is difficult to see how the evidence will be significantly less cogent in respect of the earlier part of that period by a six-month delay in the hearing."

Indeed, that must be right; it is difficult to see how the evidence in a case which stretched back over such a period could be less cogent because of the delay. The Tribunal were right about it; their Decision was in the Appellant's favour and we can see no arguable ground of appeal arising there.

[14]That takes us finally to paragraph 6.6 in which, with various particulars, the Notice of Appeal submits that the Decision overall was perverse. Having heard Mr Culshaw and having considered the whole nature of this case, we take the view, however rare it may be, that we will give leave for a perversity argument to go through to a full hearing. This is a case in which we should give that leave and thus, we regard paragraph 6.6 as giving rise to an arguable ground of appeal. We do not need to go through the specific particulars which are given under that paragraph. Just therefore, to go through again what we say is arguable: Paragraph 6.1.4 on the specific basis which we have set out in this judgment; Paragraph 6.1.6; Paragraph 6.1.7; Paragraph 6.1.9; Paragraph 6.4 and Paragraph 6.6. The other grounds are dismissed. Category C, with an estimated time of two hours. Ordinary direction for Skeletons.