Appeal No.	EAT/1098/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 July 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR P DAWSON OBE
MISS A MACKIE OBE

MR S HARRISON	APPELLANT

BOOTS THE CHEMIST LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR C A PURNELL
New Orchard House
Sevenoaks Road
Pratts Bottom
Orpington
Kent  BR6 7SE	
For the Respondents	MR T LINDEN
(of Counsel)
Instructed By:
Miss P Pike
(Solicitor)
Legal Department D90
The Boots Company
1 Thane Road West
Nottingham  NG2 3AA	

	JUDGE PETER CLARK:	 The Appellant, Mr Sebastian Harrison, commenced these proceedings by an Originating Application presented to the Employment Tribunal on 11 April 1996.  He complained of sex discrimination contrary to the Sex Discrimination Act 1975, on the part of the Respondent, Boots the Chemist Ltd, by whom he was employed as a sales assistant at their Tottenham Court Road London branch from 13 November 1995 until his dismissal on 29 March 1996.  

1	The nature of his complaint, as we read the particulars contained in box 12 of his Form IT 1, was that he was the only male employee in that store and that by reference to a number of specific incidents during his short employment culminating in his dismissal, he was treated less favourably than would a female employee have been treated and that treatment was on the grounds of his sex.  There is no reference to his or anyone else’s sexuality in that application.

2	The claim was resisted, the Respondent contending in their Notice of Appearance that he was dismissed because he failed to attain necessary standards of performance in the job during his probationary period.  The alleged instances of less favourable treatment were put in issue.  

3	The complaint came on for hearing before a full Employment Tribunal sitting at Stratford under the Chairmanship of Mr Jeremy McMullen QC on 16 and 19 May 1997.  At that hearing the Appellant was represented by Mr Dai Harris, an advisor from Lesbian and Gay Employment Rights (LAGER); the Respondent was represented by their solicitor, Ms Pike.  

4	In a decision with extended reasons promulgated on 4 August 1997, we see that the scope of the Appellant’s case was extended.  In addition to the pleaded case of discrimination based on the comparison of the Appellant’s alleged treatment with that of a woman, it was further said that he “would not have been dismissed but for the fact that I was a man or a gay man”.  The Tribunal accepted that he was homosexual and thus the questions that the Tribunal posed for themselves were:

(1)	whether the Respondent treated the Appellant less favourably than it treated or would treat a woman for the purposes of the 1975 Act,
(2)	as for the Appellant’s sexual orientation, the issue is whether the Respondent treated him less favourably than it would treat a heterosexual man or woman.

Those statements as to the issues in the case are to be found respectively in paragraphs 4 and 5 of the Tribunal’s reasons. 

5	The circumstances in which the basis of the Appellant’s claim came to be so expanded appears from a letter from the Chairman to the Employment Appeal Tribunal dated 3 May 1998 commenting on an affidavit sworn by the Appellant in these proceedings on 15 April 1998.  It seems that on the second day of hearing the Tribunal raised the issue of sexual orientation.  Mr Harris, the Appellant’s representative (referred to as Harrison, we think mistakenly, in the Chairman’s letter) sought leave to amend the IT 1 to add the words “or that I was a gay man”, presumably to the last paragraph of the particulars given under box 12.  That application was opposed by the Respondent but allowed by the Tribunal based on the evidence already given by the Appellant.  There was no application to recall him to give further evidence.

6	We should interpose an historical note.  At the time of the Tribunal hearing and decision, the European Court of Justice (ECJ) had yet to give judgment in the sexual orientation cases of Grant v S-W Trains Ltd and R v Secretary of State for Defence ex-parte Perkins (1997) IRLR 297, a case referred to the ECJ by Mr Justice Lightman, sitting in the Queens Bench Division.

7	The Tribunal dismissed Mr Harrison’s complaint.  It dealt with each individual allegation of less favourable treatment raised by him and dismissed them on the facts.  He was treated no differently than would any one else have been treated whatever their sex or sexual orientation.  The Tribunal so concluded where it was prepared to assume, without deciding, that discrimination on the grounds of sexual orientation was unlawful discrimination under the 1975 Act, the point yet to be decided by the ECJ in Grant and Perkins.  

8	The subsequent application for a review of that decision was dismissed by the Chairman under rule of 11(5) of the Employment Tribunal Rules of Procedure, no reasonable prospect of success, by a review decision dated 8 October 1997.  Meanwhile, by a notice dated 9 September 1997, the Appellant, now in person, lodged this appeal.  He there put forward two grounds of appeal.  

9	The appeal was stayed (we assume), pending the outcome of the ECJ cases of Grant and Perkins.  In the event on 17 February 1998, the ECJ ruled against Ms Grant, (1998) IRLR 206.  As a result, Mr Justice Lightman withdrew the reference in Perkins.  The appeal was then listed for a preliminary hearing before a division of the Employment Appeal Tribunal presided over by Judge Butter QC on 25 March 1998.  It was adjourned for the Appellant to file an affidavit which he swore on 15 April.

10	When the case was restored for preliminary hearing before a division presided over by Mr Justice Kirkwood on 27 July 1998, the Appellant’s then representative, Mr Wilson, appearing under the ELAAS pro-bono scheme, drew the Employment Appeal Tribunal’s attention to a recent decision of the Court of Appeal in Smith v Gardner Merchant decided on 14 July and then reported in the Times 23 July 1998.  That case has since been reported in full at (1998) IRLR 510, (1999) ICR 134.  Leave was granted to amend the Notice of Appeal to add what we shall call the Smith v Gardner Merchant point and the appeal was permitted to proceed to this full hearing on that point alone, the two original grounds of appeal having been dismissed.

Smith v Gardner Merchant 
11	Mr Smith, a homosexual, was employed by the Respondent as a barman.  He was dismissed following a complaint by another employee, Ms Barbara Touhy, that he had been abusive and threatening towards her.  He in turn alleged that she had made offensive remarks to him regarding his sexuality, for example, he alleged that she said that he probably had all sorts of diseases and that gay people who spread AIDS should be put on an island. 

12	In his Originating Application to the Employment Tribunal, Mr Smith put his case under the 1975 Act in this way:

“I believe I have been subjected to unlawful sex discrimination contrary to the Sex Discrimination Act 1975 in (a) Ms Touhy’s allegations, which would not have been made against a gay woman; (b) the conduct of my employers of the disciplinary process and the decision to dismiss me rather than Ms Touhy.”

13	The Employment Tribunal identified a preliminary issue for hearing; for that purpose they assumed that the Applicant was sexually harassed by reason of his sexual orientation and that he suffered less favourable treatment for that reason.  On those assumptions they concluded that nevertheless his claim did not come within the 1975 Act.  Discrimination on grounds of sexual orientation, they held, did not fall within the provisions of the Act.  That finding was upheld on appeal by the Employment Appeal Tribunal.

14	Following Grant it was not open to Mr Smith to rely on discrimination on the grounds of his sexual orientation when his appeal came on for hearing before the Court of Appeal.  Counsel for the Applicant, Ms Laura Cox QC, then shifted the focus of the enquiry.  She referred to the Applicant’s original complaint that Ms Touhy’s allegations would not have been made against a gay woman.  The argument advanced found favour with the Court, which allowed the appeal and remitted the case to an Employment Tribunal for determination of the question whether the Applicant as a homosexual male, received less favourable treatment than would a homosexual woman in the same position as him.  If so, that was capable of giving rise to a complaint of unlawful discrimination under the 1975 Act.

This Appeal
15	The amended ground of appeal on which this case comes before us reads as follows:

“In paragraph 5 of his decision the Chairman posed the wrong question as a consequence of which no findings of fact have been made that are relevant to the correct question which is was the Applicant treated differently (or less favourably) than a gay woman was or might have been treated.”

Mr Linden, on behalf of the Respondent, takes a preliminary objection to the amended ground of appeal.  He says that it is a new point, not raised or argued below, and in these circumstances the Appellant should not be allowed to take it for the first time on appeal.  Further findings of fact would be necessary to determine whether the Appellant was treated less favourably than a lesbian woman would have been treated in similar circumstances.  He relies on the Court of Appeal decision in Jones v Burdett Coutts School (1998) IRLR 531. 

16	With the assent of both counsel we proceeded to hear the substantive argument in the appeal, with the caveat that having done so it would be open to us to find that this was a new point which could not be taken on appeal.  

17	Mr Purnell submits that the Tribunal misdirected themselves in identifying the original ground of complaint as one of making a comparison between a homosexual man and a heterosexual man or woman (the sexual orientation comparison, see Grant), instead of what he says is the relevant comparison, that is between a gay man and a gay woman (the Smith v Gardner Merchant  comparison).  In particular, the Chairman failed to consider that comparison, referred to in an earlier case of ex-parte Smith (1996) ICR 740 by Lord Justice Simon Brown at 767A, cited by Lord Justice Ward in Smith v Gardner Merchant (1999) ICR 148H-149B.

18	Had the correct issue been identified by the Tribunal, the Appellant would then have been recalled to give further evidence of less favourable treatment when compared with a female member of staff, Ms E, who in fact gave evidence for the Respondent.  In the event, no evidence was given by the Appellant and no questions were directed to Ms E as to her sexuality.  It is now said before us, that she was a lesbian.

19	It seems to us that there are three difficulties with that submission, as Mr Linden points out.
(1)	In identifying a possible case based on sex orientation discrimination the Chairman was seeking to assist the Appellant to frame his case correctly in line with the evidence already given.  There is no duty on an Employment Tribunal in these circumstances to propose an entirely different basis of claim in law which would require further and different evidence to that arising out of the evidence already given.  The critical point is that in Smith v Gardner Merchant the Appellant raised in his original complaint the comparison between himself, a homosexual man, and a homosexual woman.  In formulating the preliminary issue in that case, the Employment Tribunal overlooked that alternative way in which the Appellant put his case.  However, no such comparison was raised by the Appellant in the present case.

(2)	This is, as Mr Purnell accepts, a new point which was not canvassed below.  Adjudication on the point would require a further factual investigation by the Employment Tribunal based on further and additional evidence, not led on the last occasion.  Applying the principles in Jones v Burdett Coutts that will not be permitted for the first time on appeal unless there are exceptional circumstances.  Mr Purnell submits that there are three factors which amount to exceptional circumstances in this case:
a)	the very confused state of the law
b)	that the Appellant had no legal representation below
c)	that the question of amending the basis of the claim arose half way through the hearing itself.
Having considered Mr Linden’s submissions in reply, we are satisfied that these matters do not amount to exceptional circumstances.  Accordingly we hold that it is not permissible for the point now to be taken.

(3)	In any event on the Tribunal’s findings of fact, none of the matters of complaint raised by the Appellant amounted to less favourable treatment compared with any other employee.  On those complaints, even had the Smith v Gardner Merchant comparison been raised, unlike Mr Smith whose complaints were assumed by the Employment Tribunal to amount to less favourable treatment, here the Appellant simply lost on the facts.  

20	In these circumstances we hold that the Appellant should not be permitted to raise the point identified in the amended ground of appeal, it not having been raised below.  Had we permitted him to do so, we would have found that there was no error of law on the part of the Employment Tribunal and further that the Appellant would have lost his case on the facts in any event.  For all these reasons this appeal is dismissed.