DUNDEE CITY COUNCIL v MISS MARGARET GENNELLI MALCOLM [2008] UKEAT 0055_07_2507

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2008] UKEAT 0055_07_2507

Case No Appeal No. UKEATS/0055/07

Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF

Between

DUNDEE CITY COUNCILAPPELLANT

MISS MARGARET GENNELLI MALCOLMRESPONDENT

Before

Lady Smith Ms A Martin Mr P Pagliari

Date 25 July 2008

[1]APPEARANCES For the Appellants MR BRIAN NAPIER (One of Her Majesty's Counsel) Instructed by: Dundee City Council Legal Services 21 City Square DUNDEE DD1 3BY For the Respondent MR ALISTAIR COCKBURN (Solicitor) Messrs Maxwell McLaurin Solicitors 53 Bothwell Street GLASGOW G2 6TS SUMMARY SEX DISCRIMINATION: Vicarious liability Sexual harassment claim by an employee of an education authority. Circumstances in which tribunal had misdirected itself as to its own prior judgment and erred in continuing the claim straight to a remedies hearing when an issue of time bar, and, depending on the resolution of that issue, an issue regarding the appellants' defence under s.41(3) of the Sex Discrimination Act 1975 both remained unresolved. Appeal upheld and case remitted to a freshly constituted tribunal; tribunal had shown clear and express sympathy for the claimant's case and had been, evidently, striving to make a finding in her favour. It was not appropriate in these circumstances to remit to the same tribunal. THE HONOURABLE LADY SMITH INTRODUCTION This is an appeal from the judgment of an Employment Tribunal registered on 24 September 2007, Chairman Mr Worthington ("Worthington 3"). That was the fifth in a series of tribunal judgments in respect of the claimant's claims against the respondents and was a judgment arising from an application by the respondents for review of the fourth of them. They refused the application. We will return to its terms later in this judgment.

[2]The claimant represented herself before the Worthington 3 Tribunal and was represented by Mr Cockburn, solicitor, before us. The respondents were represented by Mr Woodcock, solicitor, before that Tribunal and by Mr Napier QC before us.

[3]We propose to continue referring to parties as claimant and respondents. BACKGROUND and OBSERVATIONS

[4]The respondents are an education authority and the claimant was employed by them as a general assistant/science technician at Baldragon Academy, Dundee.

[5]This case is an amalgam of two claims by the claimant against the respondents arising out of incidents at work and her resignation from their employment in or about November 2002. It has an unfortunately complex history. A review of the history discloses a number of points at which it is plain to us that the Tribunal has fallen into error and we comment regarding these as we go through it. The relevant chronology of its progress to the present stage is as follows: 2002

[6]On 23 April 2002 , the claimant presented a claim to the Employment Tribunal in which she alleged that she had suffered inter alia sexual harassment perpetrated by fellow employees in May 2001. She also complained of unlawful sexual discrimination by the respondents in their procedural handling of a complaint lodged by her.

[7]On 26 August 2002 there was a preliminary hearing before an Employment Tribunal sitting at Dundee, Chairman Mr Hosie ("the Hosie Tribunal"). The claimant was allowed to amend her claim to add detail to it. Even with amendment, there was no suggestion in the claimant's claim that any acts of sexual harassment occurred in 2002. A time bar issue was considered by the Tribunal. The hearing proceeded on the basis of ex parte submission, without hearing evidence. The claimant was represented by Miss Russell, of Unison, and she explained:

"… that the sex discrimination complaint was based on the manner in which Miss Malcolm had been treated in May 2001 and the Council's failure thereafter to address the concerns which she raised and also the manner in which she had been treated by the Council after she had lodged a formal "harassment complaint" on 21 December 2001."

[8]The Council had issued its decision in respect of the claimant's harassment complaint on 15 February 2002. In the light of that, the Hosie Tribunal found that the claimant's complaint anent the way in which the respondents had dealt with her complaint was not time barred. They state:

"We arrived at the view, therefore, albeit with some hesitation, that the applicant's sex discrimination complaint, which related to the manner in which she had been treated by the Council following her formal harassment complaint on 21 December 2001 was part of an ongoing process which had started in May 2001. As it was not until 15 February 2002 that the Council wrote to Miss Malcolm to advise her of their decision and as the Tribunal application was presented on 24 April 2002 we decided that it was timeous and that the Tribunal had jurisdiction to consider the sex discrimination complaint."

[9]It was in the context of that reasoning and discussion that the Hosie Tribunal issued the following decision:

"The unanimous decision of the Tribunal is that the Tribunal has jurisdiction to consider the complaint under the Sex Discrimination Act 1975 and that it should proceed to the full hearing on the merits on 9 & 10 September 2002."

[10]Plainly, the "sex discrimination complaint" referred to in that decision was the complaint of discrimination by the respondents in their handling of the claimant's complaint to them. It did not relate to her separate complaint of sexual harassment by fellow employees. The Hosie Tribunal did not make any decision regarding time bar in respect of that aspect of the claimant's claim.

[11]On 9 September 2002 , the full hearing commenced before an Employment Tribunal sitting at Dundee, Chairman Mr R G Christie ("the Christie Tribunal").

[12]On 27 November 2002 , the claimant resigned from her employment. 2003

[13]The full hearing continued before the Christie Tribunal for a further two days, on 14 and 15 January 2003.

[14]On 21 February 2003, the claimant lodged a further claim with the Tribunal claiming that she had been constructively dismissed and alleging further breaches of the Sex Discrimination Act 1975 by the respondents but not alleging that any acts of sexual harassment took place in 2002.

[15]On 29 April 2003, the Christie Tribunal, issued its judgment. It was in the following terms:

"The unanimous decision of the employment tribunal was that:- 1. The complaint of sex discrimination is dismissed; and 2. The complaint under section 10 of the Employment Relations Act 1999 is dismissed."

[16]Although they were satisfied that the events of harassment alleged to have taken place in 2001 had occurred, they upheld the respondents' defence under s.41(3) of the 1975 Act and declined to find them vicariously responsible for those actings of the claimant's fellow employees. 2004

[17]On 24 March 2004, the judgment of the Christie Tribunal was overturned on appeal to the Employment Appeal Tribunal. The problem was, as explained by the EAT in its judgment:

"… during the hearing, one of the Lay Members, who was plainly not well, fell asleep on more than one occasion, leading to a temporary adjournment."

[18]It was accepted by the respondents that the procedure adopted in the circumstances had been out of order and the EAT pronounced the following

[19]Some time thereafter, the two claims (the one presented in April 2002 and the one presented in February 2003) were conjoined. 2005

[20]On 22 March 2005, a hearing began on the claims before the Employment Tribunal sitting at Dundee, Chairman Mr A Worthington ("Worthington 1"). It sat on 15 days in 2005, between then and 22 December 2005. As was subsequently analysed by the Worthington 1 Tribunal, the claims before them were:

"90 … As we understand these are principally threefold, namely that for a considerable period of time the claimant was sexually harassed by her colleagues … Then, says the claimant, she was also discriminated against on the grounds of her sex in respect that in late 2000, John Strachan was given the post of technician when she ought to have had it, and finally, says the claimant, the respondents direct also discriminated against her by failing properly to apply to her various procedures. Over and above these three areas of claim, the claimant also asserts that she was discriminated against by way of victimisation within the meaning of Section 4 of the 1975 Act."

[21]The acts of harassment complained of by the claimant in her forms IT 1 in respect of the first aspect of her claim all predated the start of 2002. 2006

[22]The Worthington 1 Tribunal sat on a further 7 days, including Members' meeting, between 2 August and 30 November 2006.

[23]On 2 December 2006 the Worthington 1 Tribunal issued a judgment in the following terms:

"The unanimous judgment of the employment tribunal is (one) to dismiss the claim made under section 10(1) of the Employment Relations Act 1999; (two) to dismiss the claims of sex discrimination and victimisation made under, respectively, sections 1(1) and 4 of the Sex Discrimination Act 1975; and (three) to refuse the claim of alleged constructive unfair dismissal."

[24]As regards the claimant's claim for sexual harassment by her fellow employees, the Worthington 1 Tribunal found as fact that the incidents complained of by her had occurred, in May 2001 and were followed up by other conduct amounting to sexual harassment during part of the period between then and the end of the school term in December 2001. They narrate, in their discussion, that the respondents failed to establish their s.41(3) defence (paragraph 111). They found that there was no sexual harassment after the end of 2001. At paragraph 112, they state:

"…we have in mind that by the start of the new term in January 2002, it was arranged that, since it was recognised by management at Baldragon Academy that the claimant was frightened to work in the technicians' base because of John Strachan, she would no longer require to use that base with the result, as we have held established in our findings in fact, that the claimant would no longer meet up with John Strachan (or Stewart Gourlay) on a regular basis. Indeed, there was, on the evidence, no further activity of harassment from then on the part of the claimant's former colleagues."

[25]Then, with time bar in mind, they go on:

"113. That being so, on one view, if the acts of harassment ceased at the start of the Christmas holidays in 2000, then prima facie the claim would be out of time."

[26]Whilst the Tribunal states that the conclusion that the claim was prima facie out of time was but one view, we observe that it was, on the facts as found by the Tribunal itself, the only tenable view. The same theme is taken up by them again at paragraphs 138 and 139:

"As we have set out in our findings in fact, we are satisfied that the claimant was the subject of various acts of harassment over the period from at least May 2001 until Baldragon Academy broke up for the Christmas holidays on or about 21 December 2001. After that date, since the respondents made arrangements that the claimant would no longer require to work from the technicians' base and since there was no other evidence of any further act of harassment on the part of John Strachan or any other colleague, it must follow that the acts of harassment extending over the period to 21 December 2001 are to be treated by us, in terms of Section 76(6)(b) of the 1975 Act as having been done at the end of that period, namely on 21 December 2001. 139. The first of the applications which the claimant then presented to the tribunal … was on 24 th April 2002 and therefore about one month beyond the period of three months provided for in Section 76(1)(a) of the 1975 Act. As we have already observed, the complaint is therefore prima facie late."

[27]The position that the Worthington 1 Tribunal found themselves in was that the respondents had not taken any time bar point but once the evidence was out they had noticed that the harassment claim was, on the face of it, time barred. They rightly recognised that a tribunal has no jurisdiction to entertain a time barred claim. At paragraphs 140 and 141 they continued:

"However, Section 76(5) of the Act sets out what has come to be known as the 'just and equitable' extension which, as has been recognised in the legal authorities, gives tribunals wide powers to extend time. This issue was not addressed in the course of the evidence and indeed, we understood Mr Woodcock's position to be, in relation to timebar generally, that he did not intend to take any particular point. 141. Regretfully, we simply cannot leave matters upon that footing since the timebar provisions set out in Section 76 of the 1975 Act go to the root of our jurisdiction. In other words if a claim is in time, then we are obliged to consider it. If, on the other hand, a claim is not made within the relevant three month time limit, we simply have no jurisdiction to consider it. The only potential saving grace is set out in the just and equitable provisions set out in Section 76(5)."

[28]The Worthington 1 Tribunal had regard to the judgment of the Hosie Tribunal but rightly recognised that it had made a determination on the question of time bar only in respect of the claimant's claim that she was directly discriminated against by the respondents in their handling of her complaint (a claim which they did not find to have been established – see paragraph 127). They referred to the "just and equitable" extension provisions, noted that no such case had been advanced (in circumstances where the claimant had had legal representation up until the fourth day of the hearing) and that it was not for the Tribunal to apply them where no request for their application had been made. 2007

[29]In January 2007 , the claimant lodged an appeal against the Worthington 1 Tribunal's judgment. It was sifted pending the outcome of a review application which she had also lodged, under and in terms of rule 34(3)(e) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 (that the 'interests of justice' require a review).

[30]On 1 June 2007 , there was a hearing before the Employment Tribunal sitting at Dundee, Chairman Mr Worthington of the claimant's review application ("Worthington 2"). The claimant raised a number of matters including that she considered it had been unfair to dismiss part of her claim as time barred because she had not realised that time bar was an issue. She had not had the opportunity to address it or to argue that the Tribunal should exercise its "just and equitable" discretion to extend the time limit. She also argued that the Tribunal had erred in reopening an issue of time bar that had already been determined by the Hosie Tribunal in her favour. Further, she sought, in her review application to rely on allegations of conduct amounting to harassment by John Strachan during 2002 which had not been made by her prior thereto. The claimant does not suggest that evidence in relation to those allegations was not available at the time of the Worthington 1 Tribunal hearing. Indeed, she states that she would have led it if she had been allowed to lead a particular witness which, by inference, she was not. However, any decision to refuse to allow her to lead that evidence is not attributed to anything to do with her assumptions about time bar. Furthermore, she does not explain why she did not seek to give evidence about the allegations herself.

[31]At the Worthington 2 hearing, the respondents' representative stated that he had not addressed time bar at the Worthington 1 hearing because he had assumed that it had been dealt with by the Hosie Tribunal although he realised that he was wrong about that. He conceded that, in the circumstances, the claimant had not the opportunity which she should have had to address the question of whether or not there should be a "just and equitable" extension of the time limit. That was, he accepted, a procedural mishap which ought to be corrected.

[32]The Worthington 2 Tribunal expressed the view that there was no reason why either party should have expected to address any remaining time bar issue at the Worthington 1 Tribunal hearing in the light of the Hosie Tribunal hearing. They state, at paragraph 17:

"In particular, there was no good reason why the claimant should have been required to lead the evidence on time-bar or seek to argue that we should exercise our discretion to extend time on the basis that it was just and equitable to do so."

[33]We are at something of a loss to understand how the Worthington 2 Tribunal could hold that view given its own explicit understanding of the limitations of the Hosie Tribunal's judgment as set out in the judgment of the Worthington 1 Tribunal. It seems, unfortunately, to have set the scene for the way in which the Worthington 2 Tribunal proceeded thereafter. At paragraph 20, they state:

"In all the circumstances, the claimant's position that she should now be entitled to lead evidence and make submissions about 'an act extending over a period' is unanswerable. Clearly, both parties to this hearing were of the view that the whole issue of time bar had been dealt with in the decision of the tribunal dated 30 August 2002 and they were fully entitled so to assume."

[34]They continue:

"22. Accordingly, what will now require to happen is that the claim of sex discrimination made under section 1(1) of the 1975 Act being, specifically, that claim relating to harassment, by former colleagues will now require further evidence, no doubt from the claimant and such other witnesses as she considers are appropriate, to deal with 'an act extending over a period' or the just and equitable extension."

[35]The Worthington 2 Tribunal issued a judgment on 25 June 2007 in the following terms:

"The unanimous judgment of the employment tribunal is to revoke, under Rule 36(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, the decision set out in our judgment dated 2 December 2006, to dismiss the claim of sex discrimination arising out of harassment by former colleagues made under section 1(1) of the Sex Discrimination Act 1975 and instead, to continue that claim to a further hearing on a date to be agreed with the parties: and otherwise to confirm the judgment of 2 December 2006."

[36]On 9 July 2007 , the respondents applied for a review of the judgment of 25 June 2007. As is apparent, the judgment of the Worthington 2 Tribunal was to the effect that the door was opened for the claimant to lead any evidence that she wished, in support of allegations of conduct of a fellow employee amounting to sexual harassment, in the course of 2002, which had not been led at the Worthington 1 Tribunal and of which no prior notice had been given.

[37]On 30 August 2007 the Worthington 3 Tribunal heard the respondents' application for review. The respondents sought to persuade them to revoke their decision to allow the claimant to lead evidence directed towards showing that there had been acts of sexual harassment after 21 December 2001. The Worthington 3 Tribunal notes the respondents' position in that respect and then states, at paragraph 6:

"At this point, the Chairman indicated that in preparation for the present review hearing, he had reviewed all of the papers in the case, including his own handwritten notes of the evidence. In particular, he had identified a passage from the evidence of Daniel McDonald, Depute Head Teacher at Baldragon Academy, who gave evidence for the respondents on day thirteen of the principal hearing on 20 December 2005, and in the course of examination–in–chief, he said: 'M (the claimant) resigned in November 02. From December 01 to then, M constantly spoke to me of her fears about Strachan and how badly she felt she was being treated by Baldragon.' 7. Then, at the end of cross–examination by the claimant Mr McDonald said "

I knew M was under stress and unhappy – we knew she was scared." "

[38]The Worthington 3 Tribunal retired to consider the position and, as explained at paragraph 14 of their judgment, the members' notes of that passage in Mr McDonald's evidence were found to agree with the Chairman's. The Worthington 3 Tribunal then, in what can only be described as an astonishing volte face state that they were: "… now in no doubt whatever that, contrary to the views expressed in the main judgment dated 2 December 2006, no issue of time – bar arose since, if Mr McDonald was to be accepted, and he was the respondents' own witness, the claimant constantly complained to him about being placed in a state of fear by John Strachan. If that be so it is clear that there was continuing harassment of the claimant and therefore a continuing act of sex discrimination within the meaning of section 76(6) of the 1975 Act with the result, as we have said, that no issue of time- bar arises with the result that the claim of direct sex discrimination by way of harassment succeeds. 16 We should just add that even in the absence of that evidence from Mr McDonald, we would still have refused the respondents' application for review since on the reasoning which is set out in our judgment of 25 June 2007 concerning the claimant's application for review, this case was one 'where something had gone radically wrong with the procedure involving a denial of natural justice or something of that order' (see Fforde v Black EAT 68/80). 17. In other words we would have taken the view that the approach which we adopted in our judgment of 25 June 2007 was because we considered that there were "exceptional circumstances" (see Williams v Ferrosan Limited

[2004] IRLR 607

) and the only way matters could be put right would be if evidence and submissions about 'continuing act' or the equitable extension were led ….".

[39]We cannot, however, understand, nor does the Worthington 3 Tribunal explain, how it was possible or appropriate to regard the "something" that had gone "radically wrong" being other than limited to the failure to recognise that the Hosie Tribunal had only disposed of the time bar issue that arose in what the Worthington Tribunals refer to as the "direct" claim against the respondents regarding their handling of the claimant's complaint. That meant that parties had failed to address the issue which, in the circumstances, required to be addressed, namely that of whether, given that the claimant did not advance any case of any actings beyond 21 December 2001, time bar could be elided by means of the just and equitable extension being afforded by the Tribunal to the claimant in the exercise of its discretion. That was the point that had been missed, as the Worthington 1 Tribunal in fact recognised, at paragraph 140 of its judgment. That being so, the claimant had to be given the opportunity to present any case that she wished to present to seek persuade the Tribunal to grant her a "just and equitable" extension. That though, was the sum total of what had gone wrong.

[40]So far as the claimant's wish to lead further evidence as to events in 2002 was concerned, it was, in effect, a fresh evidence point. However, at no time had she made an application for a "fresh evidence" review under rule 34(3)(d), the requirements for which are quite specific and were not addressed at all by either the Worthington 2 Tribunal or the Worthington 3 Tribunal. The Worthington 2 and 3 tribunals failed, however, to appreciate that. They have approached matters as though, to allow the claimant to address the point which they felt that she should now be given a chance to address. She necessarily required to be allowed to revisit her case on the facts of what acts occurred and when, and lead more evidence with a view to establishing specific conduct in 2002, a matter which would have had possible implications not only for the three month time bar but for quantum and the evidence that the respondents might wish to lead both in refutation of any allegation of 2002 conduct and in support of their s.41(3) defence. We notice, however, that any reference by either the Worthington 2 or 3 tribunals to recognition of these factors or to allowing the respondents to lead further evidence is conspicuous by its absence.

[41]The Worthington 3 Tribunal issued a judgment registered on 24 September 2007 in the following terms:

"The unanimous judgment of the employment tribunal is to refuse the respondents' application for review set out in their letter of 9 July 2007' to confirm our judgment of 25 June 2007 to the effect and extent that the respondents unlawfully discriminated against the claimant on the grounds of her sex by reason of harassment by former colleagues in terms of section 1(1) of the Sex Discrimination Act 1975; and, of consent, to continue the claim meantime to enable the parties to seek to agree the level of compensation due by the respondents to the claimant."

[42]It is not at all clear how or why the Worthington 3 Tribunal considered that their judgment was one which confirmed the judgment of the Worthington 2 Tribunal. Worthington 3, in effect, upheld the claimant's claim of sexual harassment by her former colleagues and held the respondents liable therefor. Worthington 2 had, however, not done so at all.

[43]What the Worthington 3 Tribunal did was as follows. They recognised that the import of their Worthington 2 judgment was that the issue of whether or not they could regard the claimants' claim of sexual harassment by her former colleagues as not time barred (either because there were incidents in 2002 within the three month periods prior to the presentation of the claimant's claims or because she should be afforded an extension of time under the "just and equitable" provisions) had not yet been but ought to be determined. Despite that, at the Worthington 3 stage, having looked at the note of Mr McDonald's evidence and on that basis alone, they decided that time bar did not in fact require to be addressed at all because there was continuing harassment in 2002. We observe that Mr McDonald's evidence was not evidence of acts of harassment taking place in 2002. It was certainly evidence of the claimant feeling fear and being stressed and unhappy in 2002 but at the highest for the claimant, those are consequences of acts and say nothing about when it was that the event or events that gave rise to them occurred. The question of the times, places, nature or circumstances of the acts involved which the Worthington 3 Tribunal appear to have assumed took place in 2002 is neither asked nor answered. Nor is the important question of whether a man would have been subjected to the same conduct or not. We would also observe that even if the Worthington 3 Tribunal were entitled to take the view that there was evidence of acts of harassment in 2002, before they could have been entitled to conclude that the claimant's claim was not time barred, they required to identify when the last of those acts occurred. Also, the claim could not be fairly or properly quantified without the nature and circumstances of those acts having been established in evidence. Yet the Worthington 3 Tribunal, judging by the section at the end of its judgment, appear to have considered that it could.

[44]Overall it appears that, in effect, the Worthington 3 Tribunal reviewed the Worthington 1 judgment in favour of the claimant and against the interests of the respondents in the context of the respondents' application for review of the Worthington 2 judgment without there being before them, at that time, any application for review at the instance of the claimant. We fully appreciate the power that a tribunal to review a judgment of its own motion but when a tribunal does that, it states that it is doing so and explains how and why it considers that it is appropriate. It can normally be expected to give parties the opportunity to make submissions in response to its proposal to review. The Worthington 3 Tribunal judgment was not, however, an occasion of a tribunal reviewing a judgment of its own motion. It does not state that that was what it was doing as it could have been expected to do had that been the power it considered itself to be exercising. It did not give parties prior notice of the point of the opportunity to make submissions as to the appropriateness or otherwise of it reviewing the Worthington 1 judgment.

[45]On 5 November 2007, the respondents lodged the present appeal. 2008

[46]On 26 February 2008 , the claimant withdrew her appeal against the judgment of the Worthington 1 Tribunal. Relevant Law

[47]Whilst the claimant in a sexual harassment case may be able to establish that where she has been subjected to acts over a period, those acts can be regarded, for time bar purposes as a continuing act with time running from the date of the last of them, it is important not to confuse acts with their consequences. As was stated by Mummery J in a decision which was subsequently approved by the Court of Appeal: "An act does not extend over a period simply because the doing of the act has 'continuing consequences' over a period." ( Rovenska v General Medical Council

[1997] IRLR 367

at para 17 per Brooke LJ.

[48]Separately, for a claimant to establish a relevant case of sexual harassment, she requires to show not only what the conduct was but that the conduct would not have been the same if the victim had been male ( MacDonald v Advocate General for Scotland and Pearce v Governing Body of Mayfield Secondary School

[2003] IRLR 512

) .

[49]Turning to the rules relating to review, these are to be found in paragraph 34 of the 2004 rules. Insofar as relevant for the present case, they provide:

"34(3) Subject to paragraph (4) decisions may be review on the following grounds only – … (d) new evidence has become available since the conclusion of the hearing to which the decision related, provided that its existence could not have been reasonably known of or foreseen at that time; or (e) the interests of justice require such a review."

[50]The distinction between (d) and (e) requires to be recognised and observed. Paragraph (d) has strict requirements and paragraph (e) is not, save in exceptional circumstances, to be resorted to, to elide those requirements. In the case of Flint v Eastern Electricity Board

[1975] ICR 395

, Phillips J explained it thus:

"The difficulty comes in the relationship between paragraphs (d) and (e) of rule 12(1). The conclusion I reach it that paragraph (d) cannot be regarded as exhaustive of cases where the ground of the application is the desire to call fresh evidence. It does not, for example, deal with circumstances where, although the evidence could be foreseen, or indeed reasonably or actually known, it was for some reason or another not available. I think that paragraph (e) is intended to be a residual category of case, designed to confer a wide discretion on industrial tribunals. But I do not think it can embrace a case where the application is on the ground of the desire to call fresh evidence where it was obvious that that evidence was available and there is no additional factor to be taken into account. In other words, if I may summarise it, paragraphs (d) and (e) are not mutually exclusive, but paragraph (e) at all events must be applied in practice with some regard to the kind of case which is intended to come within paragraph (d). And ordinarily speaking, a case which would be put forward under paragraph (d), and which failed under paragraph (d) has in it some special additional circumstances which leads to the conclusion that justice does require such a review."

[51]Phillips J also stressed, at paragraphs 404–405, that save in unusual circumstances, parties should not, through the review procedure, be afforded a "second bite at the cherry".

[52]The expectation that, where paragraph (e) is the basis on which a tribunal grants a review which has the effect of allowing fresh evidence, there will also have been an unsuccessful paragraph (d) application, is of note. It makes sense. That way the tribunal will have clear notice of the fact that what lies behind a paragraph (e) application is actually a desire to lead fresh evidence and the allowance in of a fresh evidence review by using (e) as a "back door" can better be guarded against. The need for exceptional circumstances before fresh evidence is allowed in via paragraph (e) was also referred to by Judge Hull QC in the case of Race (t/a Metframe Service Co v Romaine [1995] UKEAT1042_93_0510, (BAILII: [1995] UKEAT 1042_93_0510 ) ) where he commented:

"What is clear, from Flint itself, is that merely to produce evidence which has not been heard by the tribunal and say well, although it is not evidence which is strictly admissible for the purposes of paragraph (d), it should nonetheless lead to a review under paragraph (e), is not enough. If the fact is that the evidence was available at the time, and could, as a matter of practicability, have been put before the Industrial Tribunal, then there must be some satisfactory reason to explain the omission. It was put by Phillips J, I think in Flint , that there must be some special circumstance relating to the failure to put it before the Tribunal."

[53]The same approach was applied by Mr Recorder Langstaff in the case of Stanley Cole (Wainfleet) Ltd v Sheridan

EAT/0824/01

EAT/1265/01

(BAILII:

[2002] UKEAT 0824_01_1807

). The Appeal

[54]For the respondents , Mr Napier QC began by indicating that they accepted that the claimant ought to be given the opportunity to advance any case she has that the "just and equitable" extension should be afforded to her and to lead evidence for that purpose if she wished to do so. Any evidence led should, however, be for that purpose and that purpose alone. There was no justification for allowing her to seek to lead evidence of acts of harassment in 2002. There was no fresh evidence review application before the Worthington Tribunals at any time.

[55]In any event, the Tribunal had erred in the conclusions it reached on the basis of Mr McDonald's evidence. It only pointed to the claimant being frightened of Mr Strachan in the period after December 2001 and it did not show what that conduct was or whether a man would have been treated any differently. He relied, in support of those submissions on the cases of Rovenska and MacDonald and Pearce .

[56]Separately, the Worthington 3 Tribunal appeared to be saying that it would have exercised its powers to allow fresh evidence but there was no fresh evidence application before it and even if it had, it could only have granted it if satisfied that it was unreasonable to allow the evidence to have been available sooner. Williams , the case relied on by them could be distinguished on its facts. There were no exceptional circumstances in the present case. The claimant had had the opportunity to seek to advance her case in full relating to what harassment had taken place and when. The absence, however, of any averments in her written claims to support an argument of harassment in 2002 was striking. Further, importantly, the Worthington 1 Tribunal had found that no acts of harassment took place after 21 December 2001. If the claimant was maintaining that the harassment continued beyond then, she had had every opportunity to make that part of her case and seek to lead evidence in support of it. She was not entitled to have a second bite at the cherry. All that the interests of justice required was to give the claimant the opportunity to lead evidence and make submissions in support of any case she has that a "just and equitable" extension should be allowed.

[57]Further, the Tribunal was wrong to suggest that all that remained in the case was to calculate compensation. The effect of the Worthington 2 judgment was simply to quash the earlier decision that the sexual harassment claim was out of time. There never had been any decision upholding that claim. Had there been such a decision, the respondents would have appealed against it. He referred in that regard to the defence that was open to them under s.41(3) of the 1975 Act that had been upheld by the Christie Tribunal. At the very least there required to be a remit for the purpose of a formal finding of unlawful discrimination by sexual harassment being made.

[58]Mr Napier submitted that any remit other than the purely formal one should be to a freshly constituted Tribunal. The Worthington Tribunals had made express comments that showed that they were sympathetic to the case; they had "pulled rabbits out of the hat" and had shown themselves to be determined to find a way of circumventing the rules relating to time bar.

[59]For the claimant , Mr Cockburn made a short submission. He referred to the Worthington 3 Tribunal's judgment at paragraph 15. He had no instructions to make any concessions but said he would have to accept that whether Mr McDonald's evidence was relevant to the question of acts continuing into 2002 would depend on whether the creation of a state of fear could be seen as a continuing act. He accepted that there was no doubt that fear and anxiety were consequences and so in normal language, what Mr McDonald had said would not point to acts continuing into 2002.

[60]He submitted that there should be a remit back. He sought that it be a general remit into "acts over a period". He accepted that it could only be a remit under paragraph (e) of rule 34. He accepted that he could not advance a "fresh evidence" case. He accepted that the Hosie Tribunal had only decided the issue of whether or not the claimant's direct case against the respondents for discriminating against her in the way they handled her complaint was time barred. He accepted that the only question that would arise would be whether the interests of justice could be served by allowing fresh evidence regarding a continuing act. He accepted that whilst the Chairman of the Worthington 1 Tribunal may have suppressed any time bar submission as being unnecessary, he had done nothing to suppress evidence that was relevant to that matter.

[61]Thus, it was not altogether clear whether Mr Cockburn was seeking to advance a submission that the claimant should be entitled to lead evidence in support of allegations of acts of harassment during 2002. On the one hand, he seemed to accept that there was considerable force in the respondents' arguments on appeal yet on the other hand he appeared to be somewhat constrained from going that far.

[62]Where he was clear was regarding the remit. He submitted that there should be a remit to the same Tribunal. He drew attention, in support of that submission, to the fact that the Worthington 1 Tribunal had "thrown out" the claimant's claims in 2006. Discussion and Decision

[63]We have, to a large extent, made our views clear as we have worked our way through the background chronology. This is a mess. The Worthington 2 Tribunal recognised that there was a step that needed to be taken and could competently be taken to be fair to the claimant. That was to allow her to present any case she wished to advance to the effect that it was just and equitable to extend the time bar in her favour in respect of her sexual harassment claim. That was against a background of the Worthington 1 Tribunal having found as fact that she was subjected to such harassment during the period May to December 2001 and of her first IT1 not having been presented until late April 2002, more than three months after the end of that period. Given that and that somehow both parties had misunderstood the import of the Hosie judgment, it is entirely understandable that any tribunal in the position of the Worthington 2 Tribunal should consider that the interests of justice required the "just and equitable" extension to be properly addressed. The respondents did not suggest otherwise.

[64]What the Worthington 2 Tribunal had no justification for, however, was in opening the door for the claimant to seek to present any case that she had been subjected to acts of harassment in 2002. That would have been a new case, not foreshadowed in either of the claimant's written claims (which had already been amended ), claims which had been aired before the Christie Tribunal with no attempt to add to them after the appeal against that judgment was successful.

[65]Further, there was no attempt, it seems, to lead evidence of any acts of harassment in 2002 before the Worthington 1 Tribunal. If there had been, it would no doubt have been objected to and the issue of whether or not the claimant should be allowed to amend again, at that very advanced stage in the case, would have been addressed. We would be surprised if, in the circumstances, an application to amend had been granted then. In these circumstances, the Worthington 2 Tribunal had no sound basis for assuming that, had the claimant realised the limitations of the Hosie Tribunal judgment, she would have been "entitled" to lead evidence about acts of harassment which she alleged occurred in 2002 as, at paragraph 18 of that judgment, they expressly do.

[66]In short, the claimant had had ample opportunity to present her whole case as to the facts on which she relied for her proposition that she had been subjected to sexual harassment and had presented nothing in evidence about any such act occurring after the end of 2001. This was a case where, had the claimant made such an application, she could not have satisfied the Tribunal that review under rule 34(3)(d) would have been appropriate. Mr Cockburn volunteered that that was the case. The Worthington 2 Tribunal required to recognise that as well but there is no sign of it having done so. The Worthington 3 Tribunal perhaps recognised the need for it to consider the issue but the reference to the case of Williams is not apt. There, parties and the tribunal had all laboured under the misapprehension that the claimant's award for loss of earnings would not be taxed and that, accordingly, loss could be calculated on using net not gross earnings as a basis. The case discussed and decided that it was not necessary to read paragraph (e) as though it contained the words "in exceptional circumstances". The authorities as to the interplay between (d) and (e), the need to look at first whether a case qualifies under paragraph (d) and then to grant a review under (e) that involves allowing fresh evidence only if exceptional circumstances justify it, were not considered. Nor was the fact that the exceptional circumstance here was that which pointed to the claimant being allowed to lead evidence regarding any "just and equitable" extension case but being in the context of a claim always advanced, on the facts (and firmly found, by the Worthington 1 Tribunal, on the facts), as one in which the sexual harassment alleged did not extend beyond the end of 2001 nothing more than that. By allowing the introduction of fresh evidence about 2002, the Worthington 2 Tribunal were doing nothing other than allowing a claimant, for whom they expressed considerable sympathy, a "second bite at the cherry".

[67]Then, far from recognising the errors of the Worthington 2 Tribunal, the Worthington 3 Tribunal made fresh errors. It pronounced a judgment which proceeded on the basis that it had previously found the claimant's claim of sexual harassment by her former colleagues, advanced against the respondents as their employers, to have been established. It had not. Rather than consider the respondents' case for review of the Worthington 2 Tribunal judgment, they, without having given prior warning, sprung the news on the respondents that the Chairman had revisited his notes and, in the claimant's favour, had found a passage in Mr McDonald's evidence that he considered showed that there was a continuing act of harassment right up until the claimant left the respondents' employment. That was an end of the time bar issue as far as they were concerned. The jurisdiction issue which had concerned the Worthington 1 Tribunal was thereby disposed of. As we have indicated, we do not consider Mr McDonald's evidence to be at all capable of bearing the inference that the Worthington 3 Tribunal appears to have drawn from it and we have no difficulty in accepting Mr Napier's submissions in that regard; nor, it seemed, did Mr Cockburn.

[68]Finally, the Worthington 3 Tribunal went too far too fast in deciding that all remained to be determined was quantum. At no time had any judgment been issued finding the respondents liable to the claimant in respect of sexual harassment by her former colleagues. Unless and until there is such a judgment, the respondents are prevented from exercising their right of appeal. The Worthington 3 Tribunal should have recognised that and at the very least, made such a finding.

[69]Plainly, there needs to be a remit and we turn to the question of whether it should be to the same or to a differently constituted Tribunal, bearing in mind the guidance given in the case of Burns v Royal Mail Group plc (formerly Consignia plc) and Anor

[2004] ICR 1103

and Sinclair Roche Temperley v Heard

[2004] IRLR 763

. In all the circumstances, we are left with the distinct impression that the Worthington tribunals' sympathy for the claimant's sexual harassment claim led them, perhaps unwittingly, to a circumvention of the rules and of principles which was plainly erroneous and unfair to the respondents. They properly noticed the jurisdiction problem that arose for the Worthington 1 Tribunal but they did so "regretfully" (paragraph 141) and in terms of "great regret" (paragraph 144). Once they got the chance to revisit the jurisdiction issue, through the review applications, they seemed to be intent seeing if there was a way of allowing the claimant not only to address the "just and equitable" extension issue but to extend her claim, more than five years after it was first instituted. Their statement that the claimant's position that she should be entitled to lead evidence about acts in 2002 was "unanswerable"(paragraph 20) gives the impression that they were blind to the implications of what they were allowing, looking at matters from the respondents' perspective. Similarly, the Worthington 1 Tribunal's comment that the claim was prima facie time barred on but one view (when that was the only view that could properly have been held) and the rejection, out of hand it seems, by the Worthington 3 Tribunal of the respondents' submissions that Mr McDonald's evidence did not bear the meaning that the Chairman sought to place upon it is indicative of their failing to consider matters not simply from the claimant's point of view but also from the respondents' point of view.

[70]In all the circumstances, we have no hesitation in accepting Mr Napier's submissions that there should be remit and that it should be to a freshly constituted Tribunal. Disposal

[71]We will accordingly uphold the appeal and pronounce an order remitting the claimant's claim of sexual harassment to a freshly constituted Tribunal to hear evidence and submissions and to determine the following issues:(a) whether it is just and equitable to consider the claimant's complaint that she was sexually harassed by her former colleagues in the period May to 21 December 2001? and

(b) in the event that that Tribunal finds that it is just and equitable to consider that complaint, to determine whether the respondents are liable for the sexual harassment to which, on the findings in fact of the Employment Tribunal sitting at Dundee which issued judgment dated 5 December 2006, the claimant was subjected in the period May to 21 December 2001?

order

"... that the Appeal be Allowed and that the matter be remitted for rehearing to a differently constituted Employment Tribunal."