Appeal No. EAT/472/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 14th July 1992

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MR T S BATHO

	MR G H WRIGHT MBE

MISS A J BULLOCK	APPELLANT

COMMISSIONER OF POLICE FOR THE METROPOLIS	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J ALGAZY
(Of Counsel)
Messrs Ford & Warren
Westgate Point
Westgate
LEEDS
LS1 2AX

For the Respondents	MR B CARR
(Of Counsel)
The Solicitor
New Scotland Yard
Broadway
SW1H OBG

	MR JUSTICE WOOD (PRESIDENT):  By an Originating Application which was presented on the 3rd May 1991, it was in fact postmarked 3 pm on the 2nd May, Miss Bullock alleged sex discrimination pertaining to family responsibilities against the Commissioner of Police for the Metropolis.

	Her case was heard on a preliminary point by an Industrial Tribunal sitting in London (North) under the Chairmanship of the learned Regional Chairman Mr Heggs, on the 1st July 1991 and the decision of the Tribunal was that it had no jurisdiction to consider her complaint.

	Her allegations were of direct discrimination under s.1(1)(a) and 6(1)(a) and (c) of the Sex Discrimination Act 1975. 

	The Notice of Appearance took a point first of all that her application was out of time  and it was that issue which was before the Industrial Tribunal.

	Miss Bullock at that time, was 24 years old.  She lives in Leeds and she was a Special Constable with the West Yorkshire Police Force.  It is her ambition to become a Police Constable.  The first application which she made to the Metropolitan Police was made in 1986; it was unsuccessful but there is no need to look at the facts of that matter.

	Her second application to the same force was made in August 1988.  A selection Board was held in April 1989, she was accepted for appointment, but it was subject to successfully passing the physical fitness test.

	On the first occasion Miss Bullock failed that test and was required to re-take it.  In October 1989, with reference to the re-taking of the test, she had a telephone conversation with a recruitment officer and it became clear that she would be unable to take the test until May 1990 because she was then pregnant.  The child was born in February 1990 and she duly re-applied in May 1990.  She was informed at that time that the Commissioner was not then recruiting officers from outside the Metropolitan Police area and so she took no further action.  
	She next made application for appointment to the West Yorkshire Police Authority, that is where she is a Special Constable.  She attended for interview in December 1990 and was rejected.  Following that rejection she renewed her approach to the Recruiting Officer at the Metropolitan Police, and it was confirmed to her that as there had previously been a provisional acceptance she could make application for an appointment.  She was sent and completed the application form.  Then she received a letter dated the 31st January 1991, that read:
"With reference to your application for appointment as a Constable with the Metropolitan Police, I am writing to inform you that this has been given careful consideration but I regret that you have not been selected for appointment.

Your interest in a police career with this Force has been much appreciated, and I am sorry to have to disappoint you."

Having received that letter, the Applicant made no further enquiries of the Metropolitan Police to ascertain the reason for her lack of success.  She herself believed that she was rejected because she was the mother of a young child, and that that could constitute less favourable treatment on the grounds of her sex.  However, she sought no advice upon her rights, although she was, as the Tribunal found, aware of the existence of the Equal Opportunities Commission.

	It was at about that time, in January 1991, that she had submitted an application for appointment as a Constable with the North Yorkshire Police Authority.  She told the Tribunal in evidence that she did not wish to prejudice that application by pursuing a complaint against the Metropolitan Police.

	On the 24th April 1991, she received a letter from the North Yorkshire Police Authority indicating that her application for appointment to that Authority had been unsuccessful.  She at once telephoned the Recruiting Officer but the Recruiting Officer was reluctant, and indeed refused, to give her a reason for her rejection.

	Miss Bullock then consulted the Equal Opportunities Commission by telephone on the 24th April and was advised to submit a report.  She sent a report and in the meantime she received various information booklets from the EOC on Friday, 26th April.  A member of the EOC, a Miss Williams, wrote at once setting out the position; that letter was dated the 29th April 1991.  It pointed out the various time limits which were applicable in connection with possible complaints against one or more of the three Police Authorities.

	That then is the background to this case on the facts as found by the Industrial Tribunal.  The relevant section which was being considered was Section 76 of the 1975 Act.  It is headed:
"Period within which proceedings to be brought

(1)	An industrial tribunal shall not consider a complaint under section 63 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done."

and then subsection (5) of that same Section reads:
"A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

Although the Tribunal were considering the provisions of those two subsections it is important to note that the wording is different from the equivalent section in the Employment Protection (Consolidation) Act 1978.  That Section is Section 67 with which all tribunals are very familiar.  Subsection (2) of Section 67 of that Act reads:
"(2)  Subject to subsection (4), an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months."

So in looking at Section 76 this Industrial Tribunal, first of all, had to find and decide whether the Originating Application which had been presented, as they found, on the 3rd May 1991 was within the three months from the act complained of.  It might have been a difficult question if the basis for that decision had not been conceded and agreed before them.  Miss Bullock was represented by Counsel and the Commissioner of Police for the Metropolis was represented by a Solicitor.  It is quite apparent from a reading of this decision that it was important to decide the date upon which "the act complained of" was perpetrated.  The way in which the Tribunal dealt with that matter is to be found on page 2 of the decision, in the middle of paragraph 4 where they say this:
"It is common ground that the act complained of was done by the Respondent when the letter of rejection was posted to Miss Bullock, even though she received the letter at a later date.  The first matter to be decided by the Tribunal as a question of fact on the balance of probabilities was the date when the letter was posted.  Having heard the evidence of Mr D R Webb, an administrative officer in the Careers Information and Selection Centre, we are satisfied that the letter was posted on 31 January 1991 or, at latest, on the following day, although it was Miss Bullock's evidence that she did not recollect receiving the letter until some day in the following week.  She did not retain the envelope which would have revealed the post mark.  It was the evidence of Mr Webb that letters relating to applications for appointment are sent by first class letter post, although it was Miss Bullock's recollection that the letter was franked as having been sent to her by second class post.  However, the important question is not the date when the letter was received by Miss Bullock but the date when the act was completed by posting the letter.  It accordingly follows that Miss Bullock's Originating Application presented to the Tribunal on 3 May 1991 was presented outside the three months time limit prescribed by section 76(1) of the Act"

The relevant date was therefore the date of posting and on the evidence before it the Tribunal found that that was the 31st January 1991.  Whilst I am reading that same paragraph they also say this:
"and the question for determination by the Tribunal is whether, in all the circumstances of the case, it considers that it is just and equitable to consider the complaint which is out of time under section 76(5) of the Act."

	The Appellant's case before us falls into two parts.  The first submission is that the relevant date of the act was the date of receipt, which as the 31st January was a Thursday was likely to have been on the Monday or Tuesday of the following week, that would be the 4th or 5th February in which case the Originating Application was in time.  It was sought to argue that that was the relevant date, the date of receipt.  There were other possible alternatives which might have been the date of posting which was as found by the Tribunal, which was the postal rule in contract or possibly the day of the decision. One can see when looking at the Act that it might in some cases vary but, it is the act or omission which is relevant, the act complained of.

	However, before Mr Algazy can take that point he has to surmount the problem that objection is taken that this point was never taken below.  He concedes that it was not and therefore the first issue is whether we should allow him to argue a point which was not taken below.  The principles applicable can be traced through about three cases.  The first is House v. Emerson Electric Industrial Controls [1980] ICR 795, the facts of that case need not be examined in detail, the Tribunal held there that they had no jurisdiction to hear a complaint and the appeal was dismissed.  This Employment Appeal Tribunal held in the headnote under the sub-paragraph numbered (1):
"that although it was the general practice of the appeal tribunal not to hear points on appeal which had not been argued before the industrial tribunal, where the matter raised a question of the industrial tribunal's jurisdiction to hear a complaint, it would be contrary to the principles of justice not to allow it to be argued on appeal."

there is a passage in that case which is referred to in a later authority and I therefore will not cite it at this juncture.

	The second case in this line of cases is Russell v. Elmdon Freight Terminal Ltd [1989] ICR 629, a decision of this Tribunal presided over by Mr Justice Knox, and in that consideration was given to the case of House;  it was distinguished although it was distinguished in no particular way that is relevant to our current problems.

	The third case is the case of Barber v. Thames Television plc [1991] ICR 253.  That was a difficult case dealing with normal retiring ages and their application to various groups of employees.  The decision of that Tribunal was recently reversed on the issue of normal retiring age by the Court of Appeal, but the second point with which the EAT was concerned was not subjected to appeal.  The passage relevant for our present purposes is contained in a passage on page 267 at B:
"What is in issue is the different, but no less difficult, problem how far a new issue which raises a question of jurisdiction, can properly be raised in this appeal tribunal, notwithstanding that its resolution will require the taking of further evidence.  In that connection we were referred to House v Emerson Electric Industrial Controls [1980] ICR 795, 800, where Talbot J said:

`A little earlier in his judgment [in Kumchyk v. Derby City Council [1978] ICR 116, 1122], Arnold J had cited part of the judgment given in the G K N (Cwbran) Ltd case [1972] ICR 214 in which the ground for refusing permission to argue a new point was that it would be unjust to allow new points to be raised upon appeal which had not been raised and argued before the industrial tribunal.  We would wholly indorse what was by Arnold J and what would seem to be setting out the settled and accepted practice in this appeal tribunal, and we would not seek to depart from what he said - except, in our view, that where the matter raises the question of jurisdiction, (that is to say, whether the industrial tribunal claimed jurisdiction, or refused to accept jurisdiction) it is open, even if that matter was not raised before the industrial tribunal, to argue it before the appeal tribunal.  It would seem to us quite contrary to any principles of justice not so to hold.  For instance, if an industrial tribunal had accepted jurisdiction and made a finding in favour of an employee, when quite plainly that industrial tribunal had no such jurisdiction to do so, what they did would have been a nullity and this appeal tribunal ought to say so.  It seems to us that it is impossible to put the contrary in any different light.  If an industrial tribunal has accepted jurisdiction when it had no jurisdiction to do so, and if that emerges at the hearing of an appeal, then it is for the appeal tribunal to rule upon it accordingly.  Though, therefore, this is a new point presented to us, and though this is in a way a  departure from what is a settled practice, we think that it involves a matter of jurisdiction and that we ought to consider it.'

We do not accept the proposition that any and every contention by a party to an appeal that that party by calling further evidence can show that the applicant's case falls outside the jurisdiction of the industrial tribunal has to be acceded to on appeal.  A question of jurisdiction is not necessarily and in all circumstances a trump card which if played upon an appeal automatically determines the appeal in favour of the party playing that card.  We would respectfully accept what Talbot J said:

`If an industrial tribunal had accepted jurisdiction and made a finding in favour of an employee, when quite plainly that industrial tribunal had no such jurisdiction to do so, what they did would have been a nullity and this appeal tribunal ought to say so.'

It does not however follow from this that all jurisdictional points must be allowed at any stage even if they involve a further hearing to establish further facts.  In our view in each case the appeal tribunal has to decide on balance whether justice requires that the new point should be allowed to be taken.  If it appears on existing evidence that the decision appealed from is a nullity that will be a consideration of overwhelming strength.  Where what is relied upon is a chance of establishing a lack of jurisdiction by calling fresh evidence which was always available the case is far less straightforward."

Then later in that same Judgment the learned Judge looks at what had happened in the case of Barber and that there was a deliberate choice of the way in which the case was run by Solicitors and Counsel.  This Tribunal therefore felt that there was no justification in those circumstances for allowing the fresh point to be taken.

	Looking at the present case in the light of the principles there enunciated, it seems to us, that the points here made by Mr Carr are valid points.  This, first of all was not a case where the Industrial Tribunal had accepted jurisdiction and where so to do was really a nullity.  Secondly, that the Applicant was represented by Counsel, the importance of the concession being made must have been apparent to everybody, and after discussion, one can almost envisage how it happened in a tribunal, it was conceded that the relevant date was the date of posting.  This is not a case where it is sought to raise an issue which had been overlooked in the Tribunal.  Thus on this third ground it is clear that this was a case of a deliberate decision to agree to a particular matter.  Lastly, it is fair comment I think, although not the best point, as Mr Carr put it to us that if this were to be remitted there are some further findings of facts and further enquiries of fact which would be required.

	So looking at the matter in principle, bearing in mind that we start from the basis of Mr Justice Arnold's approach, that people should, generally speaking, not be allowed to take points that were not taken below, we have decided against the Applicant on that first point.  It is therefore, unnecessary for us to consider the other arguments on this matter and it is unnecessary for us to consider the interesting points put to us on the following cases Luppetti v. Wrens Old House [1984] ICR 348, Gloucester Working Mens' Club & Institute v. James [1986] ICR 603, and Clarke v. Hampshire Electro-Plating Co Ltd [1992] ICR 312.

	To turn to the second part of the Appellant's submissions it is, first of all, in exercising its discretion the Industrial Tribunal applied the wrong principle.  Mr Algazy submits that the phrase "just and equitable" in Section 76(5) implies a need to assess and to balance the issues of prejudice and other facts over and above the reasonably practicable factor of Section 67.  Secondly, he submits that when looking at delay, the Tribunal started to look at the matter from the wrong date, and the date from which they should have looked was the date when time expired at the end of the three months and therefore that the three month period should have been excluded when considering delay.

	The Respondents answer those two matters in this way.  As to the first, they submit that in paragraph 4, as we have already indicated, there was a correct direction on the law.  That is clearly so.  Secondly, it is said that when one looks at the Notes of Evidence of the learned Chairman the relevant authorities were cited and placed before the Tribunal.  They were cited in the reverse order of date, there was Foster v. South Glamorgan Health Authority [1988] ICR 526, which we do not intend to examine.  But there was the well known authority of Hutchison v. Westward Television Ltd [1977] ICR 279 and that decision of this Appeal Tribunal presided over by Mr Justice Phillips has stood the test of time and has been followed time and again over all those years since then.  In that case the Sex Discrimination Act 1975 was being considered when it was still quite a new Act and the Tribunal were examining the phrase, "in all the circumstances of the case" and also looking at the question of discretion.  The headnote, I do not think we need the facts, reads:
"(1)	 that the words `in all the circumstances of the case' in section 76(5) of the Act 1975 referred to the facts so far as they were relevant to considerations of whether to extend the time limit;  that the use of the words `the case' did not require the industrial tribunal to hear the proceedings arising from the complaint before determining, under the subsection, whether to consider the complaint notwithstanding that it was presented after the time limit of three months had elapsed."

and that finding is dealt with at pages 281 F to 282 A.  But it is the subsequent matters that were considered which are most relevant for our present purposes.  I pick up the Judgment of the Court at page 282 at B, there Mr Justice Phillips says this:
"The second matter to which we would draw attention is that this is a new, or relatively new, statute.  The formula provided by section 76(5) by which an application to extend time has to be judged is a new one, and it very sensibly gives the industrial tribunal a wide discretion to do what it thinks is just and equitable in the circumstances.  Those are very wide words.  They entitle the industrial tribunal to take into account anything which it judges to be relevant.  We doubt whether industrial tribunals will get much assistance in exercising that jurisdiction by being referred to cases decided on other tests under other statutes.  We do not go so far as to say that they are always and in all circumstances irrelevant, but we would deprecate these very simple, wide words becoming encrusted by the barnacles of authority.  The industrial tribunal is to do what it thinks is fair in the circumstances.  

In that connection and going back for a moment to the first point, it is for the tribunal to say how far they think it is necessary to look at the circumstances of the matter complained of.  No doubt they will want to know what it is all about;  they may want to form some fairly rough idea as to whether it is a strong complaint or a weak complaint, and so on.  Certainly it is not required at that stage to try the complaint.

The third thing which we have to say about section 76(5) is this.  Because it is such a wide discretion conferred upon an industrial tribunal, the task which an appellant has in such as a case is a heavy one.  Really he must show, if he is to succeed upon appeal, that the industrial tribunal demonstrably took a wrong approach to the matter, or that they took into account facts which they ought not to have done, or that they failed to take into account facts which they should have done, or, as a last resort which is always open upon an appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed tribunal could have reached it."

That is the principle upon which this Tribunal and this Court will act.

	They are very wide words, the Industrial Tribunal can take into account all the circumstances bearing in mind that this is the exercise of a discretion to extend time, as Mr Justice Phillips said, where for sound reasons a three month limitation has been laid down by statute.  Without seeking to limit the enquiry in any way a tribunal may well ask themselves, how many days out of time do the facts disclose?  Why was it out of time?  What happened during those three months?  Is anyone to blame, and particularly is the Respondent to blame?  Thus, whilst remembering that the wording of Section 67 and Section 76 are different some of the considerations in the Section 67 cases may be of help to tribunals when looking at Section 76 cases.  Here the tribunal dealt with this matter of discretion, and decision on a discretion, in paragraph 8 they said this:
"In considering whether or not it would be just and equitable in all the circumstances to consider Miss Bullock's application presented out of time we have had regard to the general nature of her complaint and her genuine belief that she was refused the appointment because she is the mother or a young child.  We fully understand that she would not wish to prejudice her application for appointment as a Constable with the North Yorkshire Police Authority and would therefore defer making complaint to an Industrial Tribunal until her application was accepted or rejected.  We also accept that she acted promptly upon receiving advice from the Equal Opportunities Commission.  We would have exercised our discretion in her favour if we had been concerned only with the delay between 24 April and the presentation of her application on the 3 May 1991 even though she did not strictly carry out the recommendation of Ms Williams.  However, it was Miss Bullock's complaint that the Respondent treated her less favourably on the grounds of her sex when he rejected her application for appointment on 31 January 1991.  Miss Bullock took no steps to establish the reason why she had been refused the appointment and she took no advice upon her rights even though she knew that she could obtain advice from the Equal Opportunities Commission.  Had she done so, she would have known that there was a three months time limit for presenting a complaint to the Industrial Tribunal and could have presented her complaint timeously upon receiving notice of rejection of her application for appointment by the North Yorkshire Police Authority.  In deciding to seek no advice and take no action till the outcome of her application to North Yorkshire Police Authority was established she was at fault and acted entirely at her own risk.  She was in no way misled by the Respondent.  As we do not consider that it is just and equitable to consider her complaint against the Respondent presented out of time it is the unanimous decision of the Tribunal that there is no jurisdiction to consider it."

Bearing in mind the various matters raised by Mr Justice Phillips in Hutchison it is clear that this Industrial Tribunal did examine the general nature of the complaint, and did examine her genuine belief that she was the subject of discrimination.  They did consider her reasons for deferring complaint in connection with the present Respondents.  They accepted her reasoning for so doing.  They did look into the question of what happened during those three months, as to what she did if she did anything at all.  They did look into the question of prejudice, because they looked to see who was blamed; they decided that the Respondents were in no way to blame;  they decided in fact that it was not just reasonably practicable but it was the Applicant's own decision to take the course that she took, and that her problems arose entirely from her own fault.  She is clearly a person who they saw and heard, and no doubt they felt that she was an intelligent, knowledgeable person.  It is said that there is no specific reference to the fact that she was only some two days out of time in her Application, that is true, but it is also quite clear that that must have been in the minds of this extremely experienced Tribunal at that time.

	The decision whether or not the Applicant should be allowed to continue and the Tribunal to have jurisdiction is not one for us.  We are only investigating the exercise of that discretion, it is not for us to substitute our own views and is not for us to interfere unless we are satisfied that the discretion was wrongly exercised.  We feel that we cannot interfere with this decision and with the discretion as it was exercised.  It must therefore follow that this appeal is dismissed.

	We would not like to depart without thanking both Counsel very much for the able assistance you have given us in this matter.