A v R [2003] UKEAT 0898_02_2306

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0898_02_2306Case No Appeal No. EAT/0898/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
AAPPELLANTRRESPONDENT
Before
His Honour Judge J BurkeDate 23 June 2003
[1]APPEARANCES For the Appellant MS NATASHA JOFFE (of Counsel) Instructed by: Humberside Law Centre 95 Alfred Gelder Street Hull HU1 1EP For the Respondent MR STEVEN FORD (of Counsel) Instructed by: Messrs Bradbury Roberts & Raby Solicitors 30-40 Laneham Street Scunthorpe DN15 6PB HIS HONOUR JUDGE J BURKE QC The Appellant appeals against the decision of the Employment Tribunal sitting at Hull, chaired by Mr P Hildebrand and sent to the parties with Extended Reasons on 4 July 2002. By that decision the Tribunal dismissed her claim that she had been the victim of sex discrimination consisting of sexual harassment on the part of the Respondent, her employer. The Tribunal was resolving a preliminary issue as to whether or not the Applicant's Originating Application had been presented too late. The dismissal of her complaint was on the grounds that the Originating Application had not been presented within the prima facie three month time limit prescribed by section 76 of the Sex Discrimination Act 1975 and that it was not just and equitable to consider her claim despite the expiry of that time limit.[2]The facts can be very briefly stated. The Applicant was employed by the Respondent in his business from June 1996 when she would have been less than 20 years old. In further particulars or details of her complaint she claimed that a course of conduct of a sexually harassing nature started within two or three weeks of the beginning of her employment and continued until an incident on 27 August 2001. This last incident caused her to go off sick. Three days later she was treated by her GP for neurotic depression and referred to a counsellor and she did not go back to work thereafter.[3]There were before the Tribunal reports from the Applicant's General Practitioner and from her counsellor. Both of those reports were helpful to her case and went some way to explaining why her Originating Application was not made until outside the prima facie three month time limit. But for reasons which will appear, we propose to say no more about that.[4]The Tribunal had to consider, having determined what was the last incident in the course of conduct on which the Applicant relied, whether to exercise their discretion under section 76 (5) of the 1975 Act to allow her claim to proceed, although it was made outside the three month time limit.[5]In considering the exercise of their discretion they referred to the decision of the Employment Appeal Tribunal in the well-known case in this field of British Coal Corporation v Keeble [1997] IRLR 337. In that decision the Employment Appeal Tribunal gave guidance to Tribunals as to how the discretion to which we have been referring should be exercised. The advice or guidance came up in a slightly strange way; there was a hearing by the Tribunal of the Applicant's claim, limited to a preliminary point as to time, which resulted in a decision in favour of the Applicant. That was appealed to the Employment Appeal Tribunal who remitted the matter for rehearing. In the course of so doing, the Employment Appeal Tribunal gave guidance as to the exercise of the discretion. That decision never seems to have been reported. However, when the matter was reheard on remission, it led to a second appeal to the Employment Appeal Tribunal; and the Employment Appeal Tribunal in their second decision, reported at the place which we have described, repeated and thus adopted the guidance given on the first occasion.[6]The Employment Appeal Tribunal on that occasion, presided over by Smith J, said that an Employment Tribunal, in considering whether it is just and equitable to extend time, should decide on the basis of the circumstances of each individual case after hearing evidence and then continued:
"The EAT also advised that the industrial tribunal should adopt as a checklist the factors mentioned in s.33 of the Limitation Act 1980. That section provides a broad discretion for the court to extend the limitation period of three years in cases of personal injury and death. It requires the court to consider the prejudice which each party would suffer as a result of the decision to be made and also to have regard to all the circumstances of the case and in particular, inter alia, to – (a) the length of and reasons for the delay; (b) the extent to which the cogency of the evidence is likely to be affected by the delay; (c) the extent to which the party sued had cooperated with any requests for information; (d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action; (e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action."
[7]The Employment Appeal Tribunal on that occasion pointed out that the first decision of the Employment Appeal Tribunal had not been appealed and that it had not been suggested at the second hearing before the Employment Appeal Tribunal that the guidance given earlier in respect of the consideration of the factors mentioned in section 33 of the Limitation Act 1980 was erroneous.[8]It is important to note from that decision that, just as under the Limitation Act 1980 , so in relation to the discretion under the Sex Discrimination Act 1975 and no doubt the similar discretion under the Race Relations Act 1976 , the guidance suggests that the court should consider the prejudice to each party arising from the decision and the result of the decision which has to be made and should then have regard to the specific matters which are enumerated in section 33 of the Limitation Act 1980 and in the passage of the Employment Appeal Tribunal's judgment which we have quoted above. Of course it does not matter if the Tribunal considers both matters in the reverse order, as long as they are considered.[9]In London Borough of Southwark v Afolabi [2003] IRLR 221, the Court of Appeal had occasion to consider the guidance which had been given in British Coal Corporation v Keeble . At paragraph 33 of his judgment Peter Gibson LJ, with whom on this issue Sedley LJ and Rix LJ agreed, said this: 33 "Nor do I accept that the ET erred in not going through the matters listed in s.33(3) of the 1980 Act. Parliament limited the requirement to consider those matters to actions relating to personal injuries and death. Whilst I do not doubt the utility of considering such a checklist (or that in CPR 3.9(1)) in many cases, I do not think that it can be elevated into a requirement on the ET to go through such a list in every case, provided of course that no significant factor has been left out of account by the ET in exercising its discretion."[10]Those last words are of importance in the context of this case. Nothing in Afolabi suggests that the importance of considering the prejudice to either party which will result from the decision which the Tribunal has to reach has diminished or that prejudice is no longer a consideration which the Tribunal has to bear in mind.[11]Mr Ford, on behalf of the Respondent in this case, has candidly accepted and in our view has correctly accepted, that the Tribunal, in considering the exercise of their discretion in this case, or indeed in any case such as this, must consider and weigh factors relating to the prejudice to the Applicant or the Respondent which will result from their decision.[12]Mr Ford has further candidly conceded, and again we agree with him, that the Tribunal in this case did not anywhere in their decision indicate that they had considered the issue of prejudice to the parties or either of them at all. That was, in our judgment, and Mr Ford does not seek to suggest to the contrary, a fundamental error on the part of this Tribunal; and it was an error of law. They exercised their discretion on a basis which omitted consideration of a potentially important question of fact. A material matter has been omitted from those matters which they took into account when they exercised their discretion; and we have no doubt that, by thus approaching their decision, the Employment Tribunal erred.[13]There are other grounds on which Ms Joffe on behalf of the Appellant, seeks to attack the Tribunal's decision. But because the parties agree (and yet again we agree with them) that, as a result of the error of law which we have described, it is necessary for this case to be remitted to the Tribunal, we take the view that it is better that we make no comment on any of those other matters at all. The best course, in terms of justice to these parties, is that we should simply remit the preliminary issue for rehearing by a different Tribunal. Fortunately, it is not an issue the resolution of which will take much time or incur great expense; it can, no doubt, be disposed of relatively speedily by a new Tribunal. It would be extremely unwise in those circumstances if we were to seek to deal with any matters other than the specific matter which causes us to take the view, as we do, that this case must indeed be remitted. Thus we say nothing about any of the other arguments which, indeed, have not been developed in front of us by either party, both being content, in the light of the error of law which we have identified, that the matter should be remitted in the way which we have described.[14]Accordingly, this appeal is allowed. The preliminary issue is remitted to be reheard by a fresh Tribunal.