Appeal No.	 EAT/1287/95

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 November 1996

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MISS J W COLLERSON
MR D J JENKINS MBE

MRS P DAVIES	APPELLANT

CAPARO TUBES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MS S MOOR
(E.L.A.A.S.)	

	MR JUSTICE MORISON (PRESIDENT):   The purpose of this hearing is to determine whether Mrs Davies has an arguable point of law in which she can challenge the decision of an Industrial Tribunal Chairman, sitting on his own, at London (North). 

	He arrived at a decision that having regard to the time limit contained in section 76(1) of the Sex Discrimination Act 1975 it would not be appropriate for him exercise his discretion to allow Mrs Davies’s application which was presented to the tribunal on 22nd February 1995 to go for hearing, because it related to matters which occurred more than three months before the date when her application was presented, and he was not prepared to exercise his discretion, as a matter of justice and equity, to extend the time.

	This is a very unusual case in many ways. Mrs Davies had been a remarkably fine employee with her employers for a long period of time, giving faithful and good service to them when she fell ill. She ceased to work for them as from 5th March 1993, and her employment formally came to an end on 1st September 1993 in circumstances which I think are disputed between the parties and do not need to be recounted.

	The nature of the illness was that Mrs Davies had suffered a breakdown, and required hospital treatment and has required considerable support since that time, which she is currently receiving. The nature of the allegations which she has made against her former employers relate really to quite inappropriate language, which she says, she was subjected to, and general harassment of her by reason of her sex during the course of her employment. We have read a statement from somebody who says that he could give independent evidence in support of her case. There is no need to set out the nature of those remarks. It suffices for us to say that if those remarks were made, they were wholly and completely unacceptable in the work context, and should never have been made and the employers should have dealt with anybody who made those remarks, properly and effectively.

	The difficulty that the Industrial Tribunal faced is that the allegation relating to these remarks was, as they put it, in her originating application set out in exceedingly short terms, although her IT1 was accompanied by various statements. The Industrial Tribunal said:

“5 ... It is almost unparticularised in terms of dates or circumstances. In evidence I formed the view that the alleged offensive remarks of which she complained could have happened in either of the two years preceding her departure.”

We take that to mean that the offensive remarks could have taken place at any stage between March 1991, or possibly September 1991, and March or September 1993. He went on to say this:

“Although the Applicant had made some attempt to resolve the matter on an informal basis, no formal grievance had been raised.”

We understand that that is effectively not in dispute, although Mrs Davies in a document which was well-reasoned and full, has explained to us that in fact she did take several steps during the time of her employment to make complaints, but we do not read what she says as suggesting that she formally raised a grievance under the procedure. The significance of that is not, we think, in terms of the formality of the procedure, but in terms of the tribunal’s investigation as to whether it was going to be justly possible to hold a fair trial of the matter, having regard to the fact that no particulars had been given sufficient to enable the employer, for example, to be able to deal with the complaints in an effective way at a hearing. If a formal grievance had been raised, no doubt full particulars of the dates when or the occasions when these remarks were made would have been extracted and that would have enabled the employer, during the course of the employment, to have focused on that complaint and dealt with it. It goes on:

“Furthermore, no complaint was made to the two directors when they came to see her in August 1993.”

They refer to a visit to her by the Citizens’ Advice Bureau in November 1993, and they review the rest of the evidence. The tribunal continues with this sentence:

“I am not prepared to do so [that is to extend time] as I am concerned that the complaints now put in the broadest of terms have not previously been put to the Respondent.”

If the Industrial Tribunal Chairman was intending to indicate that the matter had never been raised at all, that would have been entirely inconsistent with what he had said earlier on in the paragraph. We do not read the decision in that way. It seems to us that if we read the whole of paragraph 5 of the decision, what the Chairman is doing is properly directing his attention to the question as to whether it would now be possible to have a fair trial of very stale allegations, having regard to the fact that full details or full particulars if you will, had not been previously provided, and hence the reference to no formal grievance, with which I have just dealt.

	Accordingly, although we understand the point which is being made, we do not consider that when taken as a whole there is any arguable point to be made about the way that this tribunal Chairman has, we think very carefully and sympathetically, considered the question before him. 

	It is always uncomfortable whenever there is a time limit point, but we have no doubt in this case that the Industrial Tribunal was entitled to arrive at the conclusion which the Chairman did. Whatever our sympathies may be for Mrs Davies, we cannot accept that there is an arguable point of law. Accordingly, we must dismiss this appeal.