Appeal No.	 EAT/1339/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 April 1997

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR L D COWAN
MR P R A JACQUES CBE

MR A MANNING	APPELLANT

BRITISH TELECOMMUNICATIONS PLC & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - INTER PARTES

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	
For the 1st Respondents	MISS R DOWNING
(of Counsel)
The Solicitor
BT Group Legal Services
Redwing House
PP RF07
Timbold Drive
Milton Keynes
MK7 6TT	
For the 2nd Respondents	MR J HORAN
(of Counsel)
Messrs Russell Jones & Walker
Solicitors
Swinton House
324 Grays Inn Road
London
WC1X 8DH	

	MR JUSTICE MORISON (PRESIDENT):   This is an appeal against a decision of an Industrial Tribunal held at Bury St Edmunds on 25th September 1996, which made certain interlocutory orders against which Mr Manning the complainant has brought an appeal. 

	Before giving judgment on the points raised in the Notice of Appeal, we would like to pay tribute to Mr Manning for the clarity and fairness with which he has presented his arguments, and for the considerable assistance which has been given to the Court by Miss Downing and Mr Horan of Counsel, who have appeared for the first and second respondents, that is British Telecommunications Plc and a union, Society of Telecom Executives.

	The decision of the Industrial Tribunal which was unanimous, was that the claims brought by the applicant against the second respondent, that is the trade union, were out of time and were dismissed; and that he should pay to the second respondent £150.00 towards costs thrown away. The third order was that the first two paragraphs of the complaints against the first respondents as set out in the amended originating application are out of time and are struck out; and the fourth order was that the remaining two paragraphs do proceed to a full hearing in accordance with directions given. It is against the first three orders that Mr Manning has appealed.

	We will deal with each of these separately.

	The context in which this appeal arises is an origination application filed by Mr Manning against the two respondents arising essentially out of the way a relationship between him and a fellow worker had been dealt with by British Telecom. It is his case that the fellow worker made against him unfounded allegations that he had been harassing her, and in response to those unfounded allegations British Telecom failed to deal with the matter properly. He says that on the other hand when he came to make complaints against British Telecom arising out of the alleged misconduct by her, they responded inappropriately to that complaint. In essence what he appears to be saying is: that where a woman at work makes a complaint against a man, however unfounded that allegation might be, British Telecom respond to it; in contrast to the way they respond when a man makes a complaint against a woman. Thus, he brings a complaint alleging discrimination against him on the grounds of sex. Both he and the fellow worker are currently in British Telecom’s employment.

	In relation to the trade union, the second respondent, there were essentially two allegations which were made which were set out in the IT1. This morning Mr Manning told us that he only became aware of his belief that they had been guilty of unlawful discrimination against him between the period of January 1996 and sometime in March 1996. But he accepted, as he was bound to, that if one read the IT1 and the complaint made against the second respondent, it was to be observed that he had made no complaint in relation to anything that they had done between those months. The Industrial Tribunal on the basis of what was contained in his origination application, were, in our judgment, fully entitled to arrive at the conclusion that his complaints were clearly out of time. We do not accept Mr Manning’s argument that the complaint about what the union had done between January and March 1996 was to be found in the questionnaire which was served and that that somehow modified the IT1 which he had served. We do not think that the questionnaire fulfils the purpose of an IT1. It is essentially seeking to summarise the complaint made in the IT1, and in this case, as it seems to us, the summary in the questionnaire was not a summary of what was complained about in the IT1, but went further and much further than what he had alleged. It seems to us in those circumstances, that the Industrial Tribunal were required then to consider whether it was just and equitable to extend time. They do so between paragraphs 10 and 12 of their decision. It seems to us that their judgment on this point which is essentially a matter for discretion, cannot be faulted. In order for Mr Manning to persuade us that there was a good arguable point on the appeal, he would have to show that their exercise of the discretion was either misguided or manifestly absurd. Neither can be said. He points out that he may have caused the tribunal to have misunderstood or if he did not cause it, the tribunal misunderstood the facts. They said he first went to solicitors in January 1995; he says he only went in June 1995, rather than January. But that does not seem to us to affect the substance of the Industrial Tribunal’s careful consideration of their discretion. He also says that he told the Industrial Tribunal that he had been given advice which might have proved to be inappropriate in June 1995, namely that he should not pursue an IT complaint against the woman at work and against British Telecom for vicarious responsibility, and as a result he pursued his grievances through the grievance procedures. But it seems to us that having told the tribunal of those facts, they will have taken those matters into account when considering whether to exercise their discretion. They are not required to spell out in detailed terms every point that they have or have not considered, and we are not persuaded that it is arguable that they have erred in law in relation to the exercise of their discretion under the just and equitable principle. 

	We turn therefore to the second point which relates to their order for costs. 

	As we have told Mr Manning right at the very outset, he had an uphill struggle to persuade us that a tribunal has erred in making an award of costs. In this case the reason why they made their award of costs is set out in paragraphs 18 through to 20 inclusive in their decision, and essentially it arose possibly as a result of Mr Manning misunderstanding what was happening at a hearing which he attended on 13th August. But whether or not he had misunderstood the position, the fact was that the second respondents were required to obtain evidence from three named officials of the union, and we are satisfied that the applicant was duly warned on 13th August that if such individuals were called to a hearing to defend an allegation which it was thought was being made, which was then not proved, there would be a claim for costs. In the circumstances set out in the tribunal’s decision, we do not think that it is arguable that the tribunal have misdirected themselves on that question.

	We turn therefore to what we regard as perhaps at the heart of this case in relation to British Telecom.

	At the hearing the tribunal correctly identified four complaints which Mr Manning was making against his employers. The first was:

“I believe that BT has directly discriminated against me in allowing a former female colleague to raise unsubstantiated informal complaints against me and refused to co-operate with me at work ...”

The second complaint was:

“I believe that BT has directly discriminated against me under the Sex Discrimination Act by taking action against me such as banning me from the female colleagues office and subsequently transferring me to a new location as a result of her informal complaints ...”

The third allegation was:

“I believe that BT has directly discriminated against me in the way a formal complaint of harassment I raised against the former female colleague was handled.”

The fourth and final allegation was:

“BT has directly discriminated against me under Section 4 (Victimisation) of the Sex Discrimination Act in refusing to investigate a complaint of discrimination against my management.”

	In relation to those four complaints, there is no doubt that the last two were made within time. The tribunal recognised that in those circumstances the earlier two allegations whether within time or not, would form a feature of the evidence in the case, as the applicant was entitled to refer to those matters as proper background information from which the tribunal could draw an inference of discrimination.

	In the IT1, in the appropriate box requiring the applicant to say when the action complained of took place, Mr Manning had put the word “continuous”. It seems to us that the duty of an Industrial Tribunal in cases such as this is to look sensibly at the terms of the IT1, and to ask themselves the question whether it is the case that the employee is or might be suggesting that the employers have been guilty of maintaining an unlawful practice or policy of discrimination. My distinguished predecessor and his two colleagues, in a case called Owusu v London Fire and Civil Defence Authority [1995] IRLR 574 said at paragraph 20:

	“We do, however, agree with Mr Kibling that in this case the tribunal erred in law in failing to treat the acts complained of on regrading and failure to give the opportunity to act up as continuing acts. We emphasise that all these matters are matters of allegation only. Nothing has been proved. But in our view the allegations amount to a prima facie case that there was a continuing act. The continuing act was in the form of maintaining a practice which, when followed or applied, excluded Mr Owusu from regrading or opportunities to act up.”

They went on to emphasise that:

“... even if it was established that there was some practice built up of denying Mr Owusu upgrading or the opportunity to act up, it would still have to be proved that it was a discriminatory practice. It may be that the respondents can satisfy the tribunal when they hear the case on the merits, that there are alternative explanations for the treatment of which Mr Owusu makes complaint. But those are all matters for investigation on the merits. We are satisfied that this tribunal erred in law in failing to appreciate that a succession of specific instances could indicate the existence of a practice, which in turn could constitute an act extending over a period which is a continuing act.”

	Mr Manning is an extremely articulate applicant. He has worked diligently at the law. It has to be said that at the Industrial Tribunal hearing he did not draw to their attention the case of Owusu. There was debate in the Industrial Tribunal as to whether any of  these acts fell within s.76(6)(b) of the Sex Discrimination Act 1975, but it does not appear that the tribunal had the benefit of the Owusu decision or of argument which might have been addressed on his behalf that what he was essentially complaining of, was, as I have indicated earlier in this judgment, an alleged practice in British Telecom, that when women made complaints against men they took one line, but took a different attitude when complaints were made by men against women.

	Nothing that we say in this judgment should be taken as implying that we have any view one way or the other as to where the merits of these allegations lie. But against that background, it seems to us, that it must remain a possibility that after consideration of the first two complaints, the tribunal might reach the conclusion on the totality of the evidence, that there was such a practice as is apparently being alleged. If that were so, then those first two complaints would have been within time in the sense that they would have been part of the practice of which he complains which was in operation throughout the whole of the period. Therefore, the practice was, in a sense, the continuing act relied upon.

	Equally, the tribunal may well, when they have heard the evidence, come to the conclusion that the alleged practice was a nonsense; that it is was not proved by the applicant. In which case it would follow that the first two complaints were manifestly out of time. 

	But it seems to us, with great respect to the Industrial Tribunal, that the decision as to whether or not those two complaints were out of time, itself will require a determination of the very issues which are raised by those two complaints. This is one of those cases where, in our view on a fair reading of the IT1, there was sufficient to have alerted the tribunal to the danger of seeking to strike out allegations at a preliminary hearing before the evidence has been heard and determined. As I say, if they had had the benefit of submissions about Owusu, we believe that they would not have reached the decision that they did. 

	That being so, we are satisfied that they have not correctly directed themselves in law as to the proper approach that they should have taken to the suggestion that these two complaints could be treated separately and distinctly from the other two in terms of the time limit provisions. 

	Accordingly, we respectfully disagree with their approach and would allow the appeal of Mr Manning to the extent that all four of his complaints as I have set them out, should be looked at by the Industrial Tribunal, and that it should be open to the Industrial Tribunal when they have heard evidence, then to adjudicate on whether those first two matters were out of time or not. That decision will be contingent upon their finding whether or not there was an unlawful policy or practice or rule in continuing existence in British Telecom.

	We would like to make it absolutely clear, since this was raised during the course of the argument, that as we read the four complaints, and as we have confirmed with Mr Manning, these are complaints which are directed against British Telecom in relation to their own performance of their own duties. This is not a complaint by Mr Manning that a fellow employee of his has acted in a discriminatory way against him, such that British Telecom are vicariously liable for her actions. As he rightly accepted, if we were against his submission that the tribunal had misdirected themselves on whether it was just and equitable to extend time, there could be no question of there being an extant complaint against the woman concerned, or against British Telecom by way of vicarious liability for her activities.

	That being so, the less we say about the facts the better; and with renewed thanks to Miss Downing in particular, we would respectfully allow the appeal to the extent that we have indicated, and dismiss it to the extent that we have indicated.