Appeal No. EAT/1027/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 December 1997

Before
THE HONOURABLE MR JUSTICE LINDSAY
MISS C HOLROYD
MR P R A JACQUES CBE

SHEFFIELD CITY COUNCIL	APPELLANTS

MRS H WILSON & MRS J E HUBBARD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR N GRUNDY
(Of Counsel)
Sheffield City Council
Town Hall
Sheffield
S1  2HH	
For the Respondents	MR I THOMPSON
(Representative)
181 Ringinglow Road
Bents Green
Sheffield
S11  7PT	

	MR JUSTICE LINDSAY:   We have before us an Interlocutory appeal in the matter of Mrs H Wilson and Mrs J E Hubbard against Sheffield City Council.  The Appellants before us are Sheffield City Council and are represented here by Mr Grundy.

	On 24 July 1997 the Industrial Tribunal sitting at Sheffield under the Chairmanship of Mr R Williams promulgated its decision which is as follows:
“The unanimous decision of the Industrial Tribunal is that the applicants’ claims alleging sexual discrimination are timeous and the tribunal therefore has jurisdiction to deal with them.  A substantive hearing will now be arranged.”

	Mrs Wilson and Mrs Hubbard were represented both here and below (before the Industrial Tribunal) not professionally by a lawyer but by Mrs Hubbard’s brother, Mr Thompson.

	It is necessary to set out briefly something of the procedural history of the matter.  On 4 March 1997 the Industrial Tribunal received two Forms IT1, the Originating Applications; one completed by Mrs Wilson and one completed by Mrs Hubbard.  Sheffield City Council was the Respondent identified as the Applicant’s erstwhile employer.  Each IT1 had with it a sheet of paper that says, among other things, “Outline Statement of Case”.  So far as is relevant for immediate purposes, two types of case of sexual discrimination were mentioned.  The first part of it reads as follows:
“During the period February 1995 to September 1995 I was subjected to constant and offensive sexist remarks and behaviour from male members of staff ....”

	It is to be noted there that there is both a beginning and, more importantly, an end date specified in the complaint.  We shall call that part of the complaint the ‘behaviour complaint’.  But the outline statement of case went on with a different kind of complaint and it reads as follows:
“The failure on the part of my employer to develop a viable return to work strategy that would have enabled me to return to work free from duress and potential victimisation had a severe impact on my physical and mental health.  ..... This failure, in my view, amounts to direct sex discrimination ....”

Here, it is to be noted, that no specific end date is put to this particular form of complaint but the complaint is by way of failure or omission and it is the nature of a failure or omission that it continues, or can continue, unless remedied by some form of change.  So that separate kind of complaint we will call the “failure complaint”.  

	In each case of IT1 there was a similar letter.  I have only read so far from Mrs Wilson’s but to all intent and purposes Mrs Hubbard’s was the same.  In both cases the IT1’s were accompanied by a letter from Mr Thompson that said in its main paragraph as follows:
“This submission may be outside the three months time limit.  However, I respectfully request that consideration is given to allowing the claim to be heard on the basis that the applicant’s Trade Union have mislaid the original documentation for the Industrial Tribunal application and the Applicant was acting on a reasonable assumption that her claim was being properly dealt with.”....

Mr Thompson had obviously and rightly spotted the provisions of Section 76 of the Sex Discrimination Act 1975, which we need to read.  Sub-section (1) says this:
“An industrial tribunal shall not consider a complaint under section 63 [ and this is 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.”

A discretion is given to the Court by sub-section (5):
“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.”

There is further clarification in sub-section (6):
“For the purposes of this section–
......
(b)	any act extending over a period shall be treated as done at the end of that period, and 
(c)	a deliberate omission shall be treated as done when the person in question decided upon it.
and in the absence of evidence establishing the contrary a person shall be taken for the purposes of this section to decide upon an omission when he does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done.”

	On 22 April 1997 the Industrial Tribunal received from the City Council an IT3 Form of response and that included this, under the heading “Sex Discrimination Claim”:
“(1)  The Applicant’s claim for sex discrimination was not presented to the Industrial Tribunal before the end of the period of 3 months when the act complained of was done in accordance with Section 76(1) of the Sex Discrimination Act 1975 and is accordingly out of time.
(2)  The Applicant relies upon allegations of constant and offensive sexist remarks and behaviour between February 1995 and September 1995.  The complaint is at least 15 months out of time.
(3)  It would not be just and equitable to extend time, in particular when the Applicant was being advised by her Union and by Solicitors.”

	So plainly the City Council recognised, no doubt from Mr Thompson’s letter, that an application had been or was to be made for an extension of time, which is what Mr Thompson’s letter had foreshadowed.  On 22 April also, the City Council wrote a letter to the Industrial Tribunal saying:
“I would be grateful if you could list this matter for a preliminary hearing on the question of whether the Applications are made in time.”....

and that was done and in that way there came to be the hearing on 17 and 30 June 1997 that led to the promulgation of the Extended Reasons on 24 July 1997.  Finally, in the procedural history, on 29 August 1997 the City Council lodged its Notice of Appeal.

	The decision of the Industrial Tribunal as we have read it, lumps together what we have called the behaviour complaint and the failure complaint.  Although it is not entirely clear, it would seem to have held both to be in time but, if that was not the case, it appears that it extended time.  Mr Grundy, for the City Council, does not appeal against the finding that concerns the failure complaint.  We have heard nothing as to that and that goes forward regardless of this appeal.  One can readily see, and no doubt this thought has determined the way in which Mr Grundy has argued the case, that, as the act itself suggests, different considerations can apply to an omission-based complaint, than apply to an incident-based complaint.

	The appeal before us today is only concerned with findings that the behaviour complaint was not time-barred or, if barred, was able to go forward by way of extension of time.

	Mr Grundy’s argument is that the Industrial Tribunal mis-directed itself in law at a very crucial point of the argument.  What the Industrial Tribunal held in their paragraph 14 was: 
“..... Section 76 of the Sex Discrimination Act 1975 allows three months within which to lodge a complaint of sex discrimination.  This needs to be within three months of the last act complained of.  Early incidents will be covered if they can be linked to a later or last act which is within time.”...

and also the Industrial Tribunal held in their paragraph 15:
“..... we believe, from what we have heard, that the acts or omissions may well have lasted at the very least to 18 October and December [1996] in the cases of Mrs Hubbard and Mrs Wilson respectively ....”

	The City Council, by Mr Grundy, argues that that represents a very material mis-direction in law.  It is not right, he says, to look simply to the later or last act complained of unless the act is of a kind that it does extend over a period within Section 76(6)(b).  Moreover, it is unfortunate that the Industrial Tribunal does not explain what they have in mind when they spoke of a link.  For example, as Mr Grundy draws to our attention, they had in front of them the case of Owusu v London Fire & Civil Defence Authority [1995] IRLR 574, which draws attention to the fact that acts may be connected together by reason of them all being manifestations of a continuing policy, practice or rule being a discriminatory practice, policy or rule.  But here there is no suggestion that any such continuing policy, practice or rule was in issue in the case.  We have to conclude that the Industrial Tribunal did here err in law in suggesting, in effect, as it seems, that any link was sufficient to enable an Industrial Tribunal to look to the last or latest act which is complained of.  To speak, as the Industrial Tribunal did, of a link simpliciter would suggest that it would be enough, for example, for the acts both to have been done by the same person.  As to that, Mr Grundy’s argument in paragraph 8 of his Skeleton Argument, runs as follows:
“The logic of the Industrial Tribunal’s direction would mean that if a Manager was guilty of a one off act of sexual harassment in say 1995 and the same Manager was guilty of a similar one off act of sexual harassment against the same employee in say 1997, that both acts of discrimination would be within time if presented to the Industrial Tribunal within 3 months of the last act in 1997.”

	That seems to us a proper criticism of the loose way in which this Industrial Tribunal spoke simply of a link, without mentioning what sort of link they had in mind.  Had they had in mind a continuing link by way of a continuing policy, practice or rule of the kind discussed in Owuso that would have been one thing, but simply speaking of some form of link is far too loose to be acceptable and there was there an error in law.

	Nor can it be that the fact, if such it is, that there is some consequence of the alleged discrimination subsisting later is sufficient of itself to allow one to look to the period during which the consequence subsists.  If, for example, an act of harassment was so offensive that, say, the victim felt nervous on going into a small room, or something of that nature, even five years after the incident, that would be a continuing consequence but it could not justify a delay in the presentation of an Industrial Tribunal Form IT1 for over five years from the original incident that caused the offence.  So, as we say, the Industrial Tribunal did here err in law.  
	We must revert, therefore, to what Mr Thompson’s letter had indicated at the outset was something that was to be done, namely, that the Industrial Tribunal would be invited to extend time for the lodging of the IT1 so that it should not be time-barred.  It cannot be said here that a case for an extension of time was entirely groundless.  Possible matters (and we emphasis only possible) matters that might need to have been taken into consideration included such things as that both ladies here had been afflicted with ill-health to some degree; severe strain is mentioned.  There had, albeit itself late, been a completion of earlier IT1’s well before March 1997 but which had been said to have been lost by the ladies’ union.  There had been a very lengthy investigation by the City Council into the allegations that these ladies made and it may have been that they had thought it right to await the result of that investigation before taking the matter up before an Industrial Tribunal.  We are not pretending to give a total catalogue of the factors that might have been relied upon but plainly an application for an extension of time was not entirely groundless.

	The Industrial Tribunal obviously recognised that there was before it an application for an extension of time within Section 76(5) and on that, and including part of the passage we have already quoted, they say this:
“..... we believe, from what we have heard, that the acts or omissions may well have lasted at the very least to 18 October and December [1996] in the cases of Mrs Hubbard and Mrs Wilson respectively and, conceivably, to the time the two applicants finally left the respondent’s service.  Which ever view is correct, in any event we deem it just and equitable in the circumstances of this case to allow those claims to go forward for consideration on their merits.  Both women were under severe strain and there is little doubt that when they were given their one opportunity to return to their original place of work they were met with considerable barriers.  That experience in itself would hardly have advanced the applicants’ cause or imbued them with any degree of confidence.  If, as we believe, might be the case, possible acts of discrimination continued to the time they actually left then with their having lodged their applications on 4 March [1997] they would both be timeous.  If they ceased when the two women applied for early retirement, we would still, in the circumstances, consider it just and equitable to allow their claims to proceed.  The tribunal has, therefore, unanimously decided that it has jurisdiction to deal with both claims alleging sex discrimination.”

So what they did there was that they ran together both the behaviour complaint and the failure complaint, and yet truly different considerations apply to each.  The behaviour complaint, it must be remembered, specified an end date of September 1995.  There is in that passage that we have read no ruling as to whether it was just and equitable in all the circumstances of the case for time in relation to the behaviour complaint as such to be extended.  The case is dealt with “whichever view is correct”, namely, whether the complaint ran down to 18 October or December 1996, when each of the Applicants took the option of early retirement or until they left service on 31 December 1996 and 11 December 1996.  But the Industrial Tribunal did not deal with a complaint where the last act relied upon was in September 1995.

	It would be improper speculation on our part for us to try to assess how the Industrial Tribunal would have responded had they considered whether or not to extend time on the basis of their not having earlier mis-directed themselves in law and on the basis of their looking just to the behaviour complaint.  In any event, we do not have ourselves sufficient information in order to come to any informed exercise of the discretion on the question of extension of time.  

	Mr Grundy argues that the Industrial Tribunal’s decision on extension of time is fatally flawed by its error in paragraph 14, that we have cited earlier, on the law.  We, for our part, consider that it is at least possible for a Tribunal to be right on the question of extension of time even if wrong on the basic issue of whether time has expired.  But the position here, as we have indicated, is that the Industrial Tribunal never actually themselves looked at the question of extension as it would be if referable only to the behaviour complaint and the alternatives which it expresses do not fit the behaviour complaint, a complaint as to which the last incident was specified as being in September 1995.

	Had the Industrial Tribunal in point of language specifically covered the behaviour complaint as a separate complaint and had addressed that as to extension of time, Mr Grundy would have been in some difficulty.  The difficulties are familiar where, on appeal to this Court, a discretion is sought to be set aside.  But, given that the Industrial Tribunal never addressed the extension of time in relation only to the behaviour complaint, nor addressed it conscious of that complaint having an end date of September 1995, it seems to us that the only proper course that we can adopt is to allow the appeal, so far as relates to the behaviour complaint being within time, if that was indeed their decision, and so far as concerns an extension of time as to the behaviour complaint, again, to the extent, if any, to which that was part of their decision.  

	Having done that, it would then be right for us to remit the matter to an Industrial Tribunal for fresh consideration of the two questions - was the behaviour complaint in time and if it was not, should time be extended.  We say at this point to “an Industrial Tribunal” and that leads to the question, should it be to the same or a different Industrial Tribunal?  Mr Grundy urges that it should be to a different Tribunal.  We do not accept that part of his argument.  This is not a case where the parties, or either of them, have the least reason to suspect that the Industrial Tribunal could not approach the remission with an uncoloured mind and could not deal with it as a truly fresh exercise of a discretion.  It seems to us that this is not a case where either side has any reason to have lost confidence in the Industrial Tribunal and that it would therefore be appropriate to send the matter back to the same Industrial Tribunal as considered it before.

	We are not, by so remitting the matter, to be taken tacitly to be indicating that an extension of time is or is not appropriate; as to that we say nothing whatsoever.  That would be entirely a matter for the discretion of the Industrial Tribunal if, in the first place, they hold that in any event the behaviour complaint is out of time.  As to that, also, we say nothing, but it may be that the Industrial Tribunal will have been at least a little assisted by our view that the formula which the Industrial Tribunal used in their paragraph 14 is in error of law.  Accordingly we remit the matter in the manner that we have indicated.