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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Smith v Zeneca (Agrochemicals) Ltd [2000] UKEAT 1450_98_0902 (9 February 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/1450_98_0902.html Cite as: [2000] UKEAT 1450_98_902, [2000] ICR 800, [2000] UKEAT 1450_98_0902

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APPEARANCES

 

For the Appellant	MISS R OMAR (of Counsel) Instructed By: Mr G Slinn Messrs Thompson Leatherdale Solicitors 23 Russell Street Reading Berkshire RG1 7XD
For the Respondents	MISS J EADY (of Counsel) Instructed By: Miss C Booth Messrs Pinsent Curtis Solicitors 41 Park Square Leeds LS1 2NS


 


MR JUSTICE CHARLES: The parties to this appeal are a Miss Smith (the Appellant before us and the Applicant before the Employment Tribunal) and Zeneca (Agrochemicals) Ltd (Zeneca) the Respondent before us and the First Respondent before the Employment Tribunal.

1. The appeal is against a decision of an Employment Tribunal sitting at Reading, the Extended Reasons for which were sent to the parties on 21 October 1998.
2. There were two Respondents to the proceedings before the Employment Tribunal. The Second Respondent, a Mr L, and Miss Smith reached a settlement. As to this the Employment Tribunal record in paragraph 9 of their Extended Reasons as follows:

"9 At the commencement of the hearing solicitors for the second respondent informed the Tribunal that terms of settlement had been agreed. The applicant's claim was dismissed on withdrawal by the applicant."

3. The decision of the Employment Tribunal which is the subject of this appeal was that the Tribunal found that Zeneca did not unlawfully discriminate against the Applicant.
4. The relevant background appears from the findings of fact made by the Employment Tribunal in paragraphs 10 to 20 of their Extended Reasons. These are in the following terms:

"10 The Tribunal found the following facts

11 The applicant commenced working for the first respondent in 1995 as a temporary telephonist/receptionist and on 16 January 1997 was offered a one year fixed term contract of employment to commence on 27 January 1997 concluding on 26 January 1998. The particulars of employment set out in the letter included a condition that the applicant agreed to exclude any right to redundancy payments and any claim in respect of rights under Section 54 of the Employment Protection (Consolidation) Act 1978, now Section 94 Employment Rights Act 1996, namely her right to claim unfair dismissal. Together with the letter the applicant received the following documents:-

(i) staff handbook

(ii) group code of ethics

(iii) 'Zeneca Managing Diversity in Agriculture'.

12 During the period 14 February to 16 September 1997 there were numerous incidents of unwarranted sexual harassment. The majority of these were admitted by the second respondent, but at no time during the period was the first respondent aware of them. His admissions included leaving her two tapes of love songs, including one titled 'Sexual Healing' and he also admitted sending her flowers, chocolates and telephoning her on many occasions and calling her 'The Lady in Red'. He admitted putting his arm on her shoulder, however he denied any other physical contact or that he had booked a double room for them on the pretext of a business trip to Luton.

13 The Tribunal, on the balance of probabilities, preferred the evidence of the applicant that there had been physical contact on some occasions.

14 The second respondent admits to being over-attentive and there is no evidence that this level of attention was meted out to other female members of staff so it is impossible not to draw the inferences that the second respondent was focusing his attention mainly on the applicant and when the opportunity arose to pursue a physical contact, would take it. The first respondent cast credibility on the evidence of the applicant, namely that allegations of physical contact were first made in her oral evidence and not referred to in the Originating Application or the Sex Discrimination Act questionnaire, but it is quite clear that at the meeting with Miss Lenthall on 15 September she alleged that he had pulled her into his office and kissed her and also made physical contact when he called at her home to complete her mortgage application form. It is not disputed that she kept a photograph of the respondent on her desk and gave him a key-ring. on return from holiday. These were the actions of a junior member of staff who was anxious to keep her job by keeping in with her Line Manager in a perfectly reasonable way. The Tribunals finds that the attacks on her credibility are insufficient to question the truthfulness of her evidence.

15 On 12 September following an incident in reception involving some physical contact, the applicant felt she could no longer tolerate the situation and complained to Mr D Thompson, a Director, who took her to see Miss L Howlett, the Human Resources Manager. On Monday 15 September the applicant made a formal complaint and the second respondent was suspended half an hour later, though not before he called at the applicant's house to find out why she was apparently late for work. Between 15 September and 31 October investigations into her sexual harassment complaint took place followed by disciplinary proceedings against the second respondent and the applicant's position was that of a witness and not a person being subject to the proceedings and this involved meetings with the applicant to take a detailed statement of her complaint which was signed on 18 September. The first respondent continued their enquiries and it was necessary to see the applicant again on 24 September to clarify some matters. A further meeting took place on 17 October with Mr D Briggs who was to take the meeting concerning the second respondent, but because she objected to Mr Briggs' involvement alleging that he was a golfing colleague of the second respondent he was taken off the enquiry and this necessitated a meeting on 31 October with Mr Bramley and Mr Causton - who were now involved in the investigation.

16 The same day disciplinary proceedings were formerly concluded against the second respondent and the allegations of sexual harassment were upheld.. The decision was made to summarily dismiss the second respondent, but being over 60 and thus allowed to take early retirement, he was given the opportunity to resign, which he did, the same day, but was not allowed any of the privileges enjoyed by staff who took early retirement.

17 The first respondent operates an equal opportunities policy and detailed reference is made to it in five of the first respondent's publications. Copies of these documents are given to all employees when first employed and refer in some detail to sexual harassment and how staff who feel they are being harassed should respond to the situation. The Tribunal are satisfied that copies of these documents were supplied to the applicant when she commenced employment. Indeed she signed. that she had received them. In addition the company issue a very detailed guide 'Zeneca Agrochemicals Harassment Procedure Guide' which sets out in considerable detail the procedures relating to the investigation of a complaint and a copy of this document was given to the applicant when she first made her complaint.

18 These publications were not only documents for reference, but their widespread circulation amongst all employees, including Managers, were instrumental in creating a culture which made all employees aware of what was expected of them in all aspects of their employment and in particular the culture of equal opportunity which was free from discrimination of any kind. Knowledge of this culture was gained not so much from the 'classroom and formal courses' as from developing skill abilities, but from discussions in work place meetings. The second respondent agreed he understood the company's philosophy of non-harassment and discrimination policies. During the three years prior to the applicant's complaint, the first respondent, in addition to the applicant's complaint, received two complaints of sexual harassment, this being, out of a total work force of 2,005 of which 53.5% are male and 46.5% are female. It is noted that the second respondent has been the subject of adverse criticism on previous occasions; in 1990 he was involved in an incident involving a YTS employee and although an allegation of harassment was not proved, he was given a warning concerning his management style. The Human Resources team was put on notice and he was watched more closely than other Managers would be. On other occasions management had seen calendars displaying nude women in workshops and store areas being the responsibility of the second respondent and he had been told to deal with their removal. On an occasion in about 1995/1996 the second respondent was seen by Ms Howlett to put his arm around a female member of staff and although the employee made no complaint the second respondent was reprimanded and told to refrain from such conduct. Up to the time of the applicant's complaint no complaints concerning the second respondent were received nor, when the applicant's complaint was being investigated, did any witnesses make any reference to previous untoward conduct on the part of the second respondent.

19 The applicant went sick on 19 September and in fact never returned to work. From about early 1995 the respondents decided to make substantial changes to site security at their Berkshire site which had implications for the role of receptionist and serious consideration was given to (a) involving an outside security company and (b) the reception function being transferred to the gate house. The uncertainty regarding reception arrangements meant that from 1995 the first respondent considered it would only employ temporary employees as receptionist and accordingly when the position of receptionist again became vacant in January 1997 the applicant was appointed temporary receptionist and was told it had been decided to relocate in due course the reception to the gate house, but no decision had at that time been made as to whether the receptionist working there would be a company or security agency employee and for this reason the applicant was only given a fixed term contract for one year.

20 On 7 November the applicant spoke to Mr Ellis saying she was ready to return to work, but she did not report for work as expected and Mr Ellis spoke to her again on 21 November encouraging her to return to work and arrangements were made for her to be seen by the Company Occupational Physician who saw her on 25 November and reported thereafter to the company stating that he could not predict precisely when she could return to work, but it could be prior to Christmas. Miss Lenthal, of the Human Resources Department, wrote to the applicant on 2 December re-stating their commitment to assisting her return to work as soon as she was fit and suggesting a phased return to work saying there was no vacant position which may help aid her return to her job with the company as it was an environment outside reception with which she was familiar. Also in December, Human Resources reminded Mr Ellis that the applicant's contract was due to expire on 26 January and he was asked if he wanted a renewal of the contract. However, this caused Mr Ellis to consider more urgently the question of who should man the reception and he decided it should be undertaken by the security agency and on 6 January, in response to a telephone call from the applicant enquiring what was happening about her job she was told that her fixed term contract would come to an end on 26 January and this was confirmed by letter dated 12 January."

5. After setting out those findings of fact the Employment Tribunal in their Extended Reasons referred to the submissions made by the parties, the authorities they had been referred to, the issues they had to decide and the relevant sections of the Sex Discrimination Act 1975.
6. The relevant sections of the Sex Discrimination Act 1975 are set out in paragraph 24 of the Extended Reasons which is in the following terms:

"24 The Law

Section 1(1)(a) of the Sex Discrimination Act 1975 states:-

'(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if -

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man'.

Section 6(2)(b) states:-

'(2) It Is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her -

(b) by dismissing her, or subjecting her to any other detriment'.

Section 41 (1) states:-

'Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval'.

Section 41(3) states:-

'In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description'.

Section 4(1) states:-

'A person ('the discriminator') discriminates against another person ('the person victimised') in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has –

(a) brought proceedings against the discriminator or any other person under the Act."

7. The Extended Reasons go on in paragraphs 25 and 26 as follows:

"25 The Tribunal has reached a unanimous decision. With regard to the allegation of harassment by the second respondent this has in part been accepted by the second respondent following settlement of the application against him which was dismissed on withdrawal by the applicant following upon settlement. However, the facts need to be considered de novo as they have bearing on the question of the first respondent's vicarious liability of the actions of the second respondent.

26 The second respondent admitted that several of his actions towards the applicant were inappropriate, but he denied any allegations of physical conduct. The Tribunal is satisfied that there was on occasions conduct of a physical nature. There is no evidence that other female employees were subjected to the sort of attention that the second respondent admits to involving the applicant and as the applicant was singled out for such attention then the inference can properly be drawn on the balance of probabilities that he was seeking a sexual relationship preceded by physical conduct. One would not expect to have witnesses to physical acts, but it was not denied that the second respondent visited the applicant at her home to complete a mortgage application form, an act which in the circumstances was quite unnecessary. Some corroboration is afforded by the record of interview with Tina Bull who stated that on occasions she was asked to cover reception when the applicant was called to the second respondent's office for coffee and appeared annoyed on her return. Miss Bull also corroborates the applicant's claim that the second respondent asked her to accompany him to Luton, but the applicant refused to go. The applicant never made any complaint until 12 September, but it is the Tribunal's view that this does not detract from the applicant's credibility. It is always difficult for a junior female employee to make a complaint against her Line Manager when the matters complained of have not been witnessed by any other member of staff. There is always a risk of not being believed when it is word against word and this has to be balanced by the fact that the applicant valued her job and for financial reasons needed. it and would not wish to put her job in jeopardy. However, the time came when she did make a complaint when she believed that another member of staff may have witnessed something. Her complaints, contrary to the first respondent's submissions, include allegations of a physical nature and she has not deviated from this at any time."

8. The Employment Tribunal then consider whether Zeneca was vicariously liable for the Second Respondent's acts by reference to section 41(1) of the Sex Discrimination Act 1975. They found that Zeneca was so liable and there is no appeal against that part of their decision.
9. It is the conclusions set out in paragraphs 29 to 35 of the Extended Reasons that are the subject of this appeal. Those paragraphs are in the following terms:

"29 The Tribunal must then consider if the first respondent can show under Section 41 (3) Sex Discrimination Act that they took such steps as were reasonably practicable to prevent their employee committing particular discriminatory acts. It is clear the first respondents have a clear and unambiguous policy on equal opportunities and harassment is set out in several documents which we find were supplied to the applicant when employed. Whilst it is not insufficient (sic) to merely have an equal opportunities policy we are satisfied that the first respondent took steps to ensure that management had the responsibility for implementation of the company policies and they run specific short term based training and work shops which include reference to sexual harassment-

30 The company had cause to discipline the second respondent in 1990 in respect of an incident involving a YTS employee. Whilst he was not regarded as a risk employee management were aware of possibilities in this respect and when in 1995 there was a need to recruit another YTS employee it was decided that the employee would report to another Manager and the second respondent was told the reason why, but of course this in no way proves that in 1995 he acted improperly in any way. In 1996 the second respondent was seen with his arm round a female member of staff and was told that this conduct was inappropriate, but until August 1997 no complaints were made concerning his conduct towards female staff although there were plenty of opportunities to complain if such misbehaviour had occurred. The fact that the senior management took steps in 1995 to ensure that there would be no incidents involving the second YTS employee suggests they were diligent in taking all reasonable steps to prevent an incident which might breach their equal opportunities code. Short of ensuring that the second respondent was shadowed by senior management at all times, which would not be practical or reasonable, it is difficult to see what else they could do to prevent the second respondent's conduct towards the applicant if he wished to interpret the equal opportunities code in a way that resulted in its breach. We find therefore that the first respondent took all steps that were reasonably practicable afforded to them by Section 41 (3) Sex Discrimination Act.

31 The Tribunal was also asked to consider whether the handling of the applicant's complaint of harassment itself constituted harassment by the first respondent. The Tribunal finds, however, that they do not have jurisdiction to consider this explicit allegation. The applicant's application to the Employment Tribunal was dated 11 November 1997 just seven days after the disciplinary proceedings against the second respondent had been concluded and the applicant informed of the result and in her Originating Application she makes no complaint that the first respondent were themselves in breach of Section 6(2). She only alleges that they were vicariously liable. Subsequently the applicant submitted a questionnaire under Section 74(1)(a) of the Sex Discrimination Act, but again makes no allegations of harassment against the first respondent.

32 On 18 January 1998 the applicant submitted a further Originating Application alleging unfair dismissal and breach of contract arising from the first respondent's failure to follow their own contractual dismissal procedures, but does not allege that these alleged failures amounted to sexual harassment. The first reference to this allegation was made when the applicant was giving evidence in the Employment Tribunal and even then she went no further than alleging that she found the meeting with management which investigated her complaints unnecessary, embarrassing and highly upsetting making no reference to sexual harassment, this allegation only gradually emerged during cross-examination of the first respondent's witnesses. No application was made at any time to amend the Originating Application and accordingly the Tribunal finds that such allegations cannot now be considered.

33 The Tribunal must also consider whether the applicant suffered discriminatory dismissal contrary to Section 6(2) of the Sex Discrimination Act. The applicant was employed under a fixed term contract of one year and in Section 95(1)(b) Employment Rights Act 1996 dismissal includes the expiry of a fixed term contract which is not renewed. The applicant's contract was. not renewed on expiry and clearly this amounts to a dismissal, but was it unfair? The applicant claims that she was dismissed because she suffered harassment and reported the problem expecting formal action to be taken. The respondent claims that the contract was for a period of one year and contained an unfair dismissal waiver and the dismissal consisted wholly of the expiry of the one year term. The Tribunal are satisfied that the applicant was employed as a receptionist, indeed the only receptionist, and as early as 1995 the role of reception was being considered in the context of a security improvement project, one of the options being that the reception functions would be undertaken at a security gate house. For this reason the applicant was not offered a permanent position on reception, but only offered a fixed term contract of one year. Towards the end of 1997 the project had developed to such an extent that it was unlikely that the receptionist would be required in the existing building as it was probable that the contracted security company would provide reception at the gate house and security duties and for this reason there was no position that the applicant could fill and it was decided that her temporary contract would come to an end. A considerable number of the first respondent's employees are on fixed term contracts and the Tribunal is satisfied that a member of the opposite sex would be treated in the same way.

34 The Tribunal must finally consider whether the dismissal amounted to victimisation contrary to Section 4(1) of the Sex Discrimination Act. It is clear that the dismissal followed upon the applicant bringing proceedings against the first respondent and had the applicant not been on a fixed term contract it would be possible to draw the inference that her dismissal was as a consequence of instituting proceedings against the respondent, but by 11 November when she instituted proceedings the question of the future role of reception was an alive issue for the reasons already stated the company decided that there was no future role for a receptionist in the main building and the inevitable consequence of this was that there was no future role for the applicant and her fixed term contract was quite properly brought to an end. It is noted that the way the first respondent treated the matter in its final stage was to say the least highly incompetent and not unnaturally led the applicant to believe that her dismissal was related to her claim against the company. As late as 21 November the respondent was seeking advice from the Occupational Health Division as to her likely date for return to work and Human Resources wrote to her on 2 December re-stating their commitment to assisting her to return to work. On 6 January Human Resources informed her that her contract would come to an end on 26 January. However, this information was given in response to a query from the applicant and it is not clear what would have been the position if she had not made the enquiry. However, the state of affairs can only be described as incompetence on the part of the Human Resources Division and is not sufficient evidence to infer that she was being victimised. Any other employee, either male or female would have been dealt with in the same way.

35 It follows from our findings that the applicant's complaint of unlawful discrimination on the grounds of her sex is dismissed."

10. As is apparent from those paragraphs, paragraphs 29 and 30 deal with section 41 (3) of the Sex Discrimination Act 1975. Paragraphs 31 and 32 deal with the point raised on behalf of the Applicant that the handling of her complaint of sexual harassment itself constituted sexual harassment by Zeneca. Paragraphs 33 and 34 deal with the claims made by the Applicant based on the fact that she was not re-employed following the expiry of her fixed term contract.

The Grounds of Appeal

11. Unfortunately these are differently expressed in (a) the Notice of Appeal (b) the judgment given by this Tribunal at the Preliminary Hearing and (c) the skeleton argument put in by Counsel on behalf of the Appellant. This is unsatisfactory. However, we need not dwell upon this point because Zeneca were content for us to consider this appeal on the basis that the grounds of appeal are those identified in the skeleton argument put in on behalf of the Appellant. These cover the grounds set out in the Notice of Appeal and the judgment of this Tribunal on the Preliminary Hearing but it seems to us can also fairly be said to add to those grounds.
12. In our judgment those advising the Appellant should have sought leave to amend the Notice of Appeal to ensure that it accorded with the arguments they wished to advance on this appeal. However, as we understand it, they did provide the Respondent (Zeneca) with the Appellant's skeleton argument about a week before the hearing. This skeleton identified the arguments that the Appellant wished to put forward. We record that in our judgment Counsel for Zeneca was correct to accept that the appeal should be dealt with on the basis of the arguments appearing in the skeleton argument put in on behalf of the Appellant.

The Section 41 (3) Point

13. The Appellant contends that the Employment Tribunal's conclusion that Zeneca was able to rely on s. 41(3) of the Sex Discrimination Act 1975 was erroneous or perverse. This contention contains two grounds of appeal, namely that:

(a) the Employment Tribunal erred in law by failing to give any, or any adequate consideration to the European Commission's Recommendation of 27 November 1991 on the Protection of the Dignity of Women and Men at Work (92/131/EEC) and, in particular, the part of that guidance which states:

"It should be emphasised that a distinguishing characteristic of sexual harassment is that employees subjected to it often will be reluctant to complain. An absence of complaints about sexual harassment in a particular organisation, therefore does not necessarily mean an absence of sexual harassment;

and

(b) the conclusion was perverse.

14. As to the first allegation, namely that the Employment Tribunal failed to give any or any adequate consideration to the Recommendation, we have concluded that a fair reading of the Extended Reasons demonstrates that it is simply not made out.
15. In advancing this ground, as we understood her, Counsel for the Appellant sought to isolate paragraphs 29 and 30 of the Extended Reasons and to place reliance on the fact that the Recommendation is not referred to in those two paragraphs. In our judgment this is an incorrect approach. The Extended Reasons should be read as a whole and against relevant background that was common ground or undisputed and thus which was known to the parties.
16. When the Extended Reasons are read as a whole it is apparent from paragraph 26 that the Employment Tribunal had in mind the point made in the particular passage in the Recommendation that is relied on by the Appellant. Having regard to this, in our judgment, it cannot be properly asserted that the Employment Tribunal did not have any, or any adequate, regard:

(a) to the point that it is difficult for a junior female employee to make a complaint against her line manager, and thus

(b) to the more general point that employees subjected to sexual harassment are often reluctant to complain and therefore that an absence of complaints about sexual harassment does not necessarily mean an absence of sexual harassment.

17. Additionally, it is clear that the Employment Tribunal were reminded, or made aware, of the Recommendation through the evidence given on behalf of Zeneca. The Recommendation was expressly referred to in it and we accept the submission made on behalf of Zeneca (which was not challenged on behalf of the Appellant) that Zeneca's evidence before the Employment Tribunal was to the effect that the Recommendation had been taken into account by Zeneca and in its view had been complied with. In this context it is also to be noted that before the Employment Tribunal no challenge to Zeneca's case was made on the basis that Zeneca had not had regard to and complied with the Recommendation. Further no argument was put on behalf of the Appellant to the Employment Tribunal that they should have any particular, or specific, regard to the Recommendation in the context of the section 41(3) defence or otherwise.
18. Although it is not necessary for us to do so in the circumstances of this case, we would add that in our judgment when an Employment Tribunal is considering the statutory defence set out in s. 41(3) of the Sex Discrimination Act 1975 and they are not invited by a party to have specific regard to the Recommendation (or a part of it) in applying the sub-section, an Employment Tribunal would not err in law in not taking the Recommendation specifically or expressly into account.
19. We therefore turn to deal with the second part of this ground of appeal namely, perversity. In our judgment the Appellant falls a long way short of demonstrating that the Employment Tribunal were perverse in the conclusion they reached. We would go further and record that in our judgment on their findings of fact the Employment Tribunal reached the correct conclusion.
20. In dealing with this ground Counsel for Zeneca provided us with a helpful schedule, commenting on assertions made on behalf of the Appellant. We do not propose to go through each of those assertions. However, we record that in our judgment, as is demonstrated by the schedule provided, in advancing this argument Counsel for the Appellant:

(a) exaggerated the problems that had occurred relating to the Second Respondent,

(b) distorted findings made by the Employment Tribunal, and

(c) advanced points as to what she submitted Zeneca should have done if they were to satisfy s. 41(3) which were impractical or did not have proper regard to the facts as found by the Employment tribunal.

As to (a) and (b) Counsel regularly referred to the incident involving a YTS employee in 1990 as one involving sexual harassment, whereas it is apparent from paragraph 18 of the Extended Reasons that this is an exaggeration and therefore incorrect. In that paragraph the Employment Tribunal record that, although that incident involved an allegation of harassment which was not proved and the Second Respondent was given a warning concerning his management style. We called for the letter giving that warning which was before the Employment Tribunal and it is in the following terms:

"I am writing to confirm the first formal warning given to you at the disciplinary hearing held on 12 and 14 November 1990 (see notes attached). The warning has been given because of your poor judgement in dealing with Ms M when she was a YTS placement in your section.

The warning will remain in force for a period of one year.

You have a right of appeal against this decision which should be made in writing to Mr D. Spence within seven working days of receiving this letter."

This supports the finding in paragraph 18 of the Extended Reasons. In addition the Appellant's Counsel failed to acknowledge that (i) the Second Respondent was not regarded as a risk employee (see paragraph 30), (ii) the Second Respondent agreed that he understood the Company's philosophy of non-harassment and discrimination policies (paragraph 18), and (iii) it was not asserted that the Second Respondent was responsible for calendars displaying nude women being put up in workshops and store areas for which he had responsibility, and the position was that as a Manager he was asked to deal with this problem.

21. As to point (c) it was accepted by Counsel for the Appellant that the points that she was advancing as ones which should have been carried out by the Company were not put to Zeneca to test whether they would have been practical. However, and by way of example, it seems to us clear that the suggestion made on behalf of the Appellant that the Second Respondent should have been prevented from having management supervision over female employees is one which was obviously impractical. Further, the suggestion put on behalf of the Appellant that the Second Respondent ought to have been given retraining on the specific issue of sexual harassment, ignores the point that the Second Respondent had agreed that he understood Zeneca's sexual harassment policies (see again paragraph 18 of the Extended Reasons) and it was never put to the witnesses called on behalf of Zeneca that retraining would have had any effect in preventing the problems that occurred. Further, in this context it seems to us that a fair reading of paragraph 30 of the Extended Reasons is that the Employment Tribunal concluded on the evidence they heard that retraining would not have avoided the harassment of the Appellant by the Second Respondent which occurred.

The Second Ground of Appeal

22. This relates to paragraphs and 31 and 32 of the Extended Reasons and in the skeleton argument put in on behalf of the Appellant this ground it is put in the following terms:

"That the Employment Tribunal's decision that they had no jurisdiction to consider the Appellant's allegation that the Respondent had aggravated the sexual harassment or had been party to it by the manner in which it dealt with her complaint was erroneous and/or perverse."

23. It is to be noted that in this ground the allegation is put that Zeneca had aggravated the sexual harassment or been a party to it. It does not seem that this is the way in which the allegation was put to the Employment Tribunal. The submission made is summarised in paragraph 21 of the Extended Reasons as follows:

"21 Miss Nag submitted on behalf of the applicant in summary. The investigation carried out by Zeneca made a finding that the applicant had been harassed and that the first respondent was liable vicariously for the acts of the second respondent. They were done in the course of his employment, mainly in the work place and mainly during work hours. The first respondent could not rely on the defence set out under Section 41 (3) of the Sex Discrimination Act as steps taken to prevent harassment had been inadequate as they had not done all that was 'reasonably practicable' having regard to their large size and financial and administrative resources. The documents setting out the policy on harassment may be well drafted documents, but the requirements of good industrial relations practice was such that mere paper policies are not enough. If no mention is taken to put policy in practice, the employer should be found liable. The policy documents on harassment were ineffective. They had not been adequately distributed and had not been supported with any or any adequate supervision. The handling of the applicant's complaint of harassment in itself constituted harassment by the first respondent. The recommended time scale of ten days suggested by the harassment procedure document was not adhered to and the matter in all took three months to reach solution there being unnecessary demands upon the applicant to repeat the acts of harassment suffered by her. It was further submitted that non-renewal of the fixed term contract amounted to dismissal and that, in accordance with Section 6(2) of the Sex Discrimination Act, amounted to a discriminatory dismissal by reason of her sex in that women are victims of sexual harassment in the work place and the problem is a gender specific one. Dismissal occurred because the applicant suffered harassment and reported the problem expecting formal action to be taken and as the problem of harassment was gender specific no requirement of a comparator need arise. It was further contended that the applicant suffered victimisation contrary to Section 4 of the Sex Discrimination Act. The non-renewal of her contract occurred after she issued proceedings and in the absence of any direct or credible evidence as to why the dismissal took place the Tribunal was entitled to infer that the reason is discriminatory and it was submitted on behalf of the applicant that someone who had not complained of harassment would not have suffered a non-renewal of the contract."

24. We have seen the skeleton argument put in on behalf of the Appellant before the Employment Tribunal and in our judgment that is a fair summary of the submission that was made under the heading "Conduct of Zeneca: Does it amount to harassment?". That submission contains the following statement:

"The explicit allegation that the procedure was unfair and that such conduct amounted to harassment has not been specifically pleaded by the Applicant in her Originating Application. However, it is a well recognised principle of employment law and procedure that the IT1 is not to be treated as a formal pleading. The failure to state an allegation does not prevent it from being permitted."

25. In our judgment that passage from the skeleton argument put before the Employment Tribunal correctly recognises that this allegation was not raised in the IT1. The way in which it emerged before the Employment Tribunal is set out in paragraph 32 of the Extended Reasons (see above). The evidence of the Appellant in her witness statement is as follows:

"24 Subsequently I had a number of meetings with various Zeneca people. During each meeting I had to repeat everything. I found this requirement to constantly repeat everything unnecessary, embarrassing and highly upsetting.

25 I was not given a supporter or witness at any of the meetings except on one occasion when I had a meeting at a hotel. I was not allowed to be accompanied by my solicitor, and on one particular occasion he was actually refused entry when he tried to accompany me to a meeting.

26 In general I was not kept informed.

27 At the meeting at the hotel a Mr David Briggs told me that I would receive a decision later that day. However, later that day a Mr Alan Williams called at my office and told me that a decision had not been made and that Mr Briggs was no longer involved in the matter.

28 There was a further meeting after all this and I again was required to recount everything.

29 A few days late Mr Williams telephoned me to advise me that my complaint had been upheld. Further, he told me that Mr L had been dismissed.

30. However, subsequently I learned from work colleagues that Mr L had been allowed to take early retirement and may have received a payment from the company."

26. We agree with the submission made on behalf of Zeneca that those paragraphs in the witness statement, read with the IT1, would not alert Zeneca or its advisers to the possibility that a claim was being made against Zeneca that through its employees who had conducted the investigation it had sexually harassed the Appellant, or that it had otherwise conducted the investigation in a manner that constituted discrimination under the Sex Discrimination Act 1975. We agree and accept that (a) it would be natural for the Appellant to have been upset and to include this in her statement on the basis that she was telling the full story, and (b) the Appellant might seek to rely on this assertion in the quantification of her damages claim for the direct sex discrimination specifically alleged in her first IT1.
27. The first IT1 contains particulars of the discrimination complained of by the Applicant and in our judgment makes it clear that the claim being made against Zeneca was that it was "vicariously liable" for the Second Respondent's sexual harassment of the Appellant. Indeed, paragraph 13 of the Appellant's statement of case defines the issues as:

"The issues

(1) The First Respondent is vicariously liable for the Second Respondent's sexual harassment

(2) The Second Respondent is individually liable for his own acts of sexual harassment."

This statement of case was repeated in the questionnaire served and answered pursuant to the Sex Discrimination Act.

28. The position therefore arose during the course of the hearing before the Employment Tribunal that a new claim or allegation of discrimination was being made. In terms of section 76 of the Sex Discrimination Act 1975 the Applicant was seeking to introduce into the proceedings a new "act complained of".
29. It was argued before us by reference to Jesuthasan v Hammersmith & Fulham London Borough Council [1998] IRLR 372 and Harvey on Industrial Relations and European Law, Volume 4 T, paragraphs 311.03 to 312.01, that by introducing this new basis of claim the Applicant was only seeking to place a different label on facts already asserted. We do not agree. The first IT1 already contains the appropriate overall label, namely Direct Sex Discrimination. The label is therefore already there and what the Applicant was seeking to add was an additional basis for establishing direct sex discrimination and thus a new and additional "act or acts complained of".
30. Alternatively, it was said on behalf of the Appellant that as the facts which she had to establish to succeed on this alternative basis were already contained in, and indeed were an integral part of, the existing bases of her claims in the two sets of proceedings there was no prejudice or unfairness to Zeneca if those facts were considered by the Employment Tribunal both in respect of the existing bases of claim and as a basis for establishing a further or alternative basis of claim. It was said that this was simply a re-labelling of the facts already in issue as facts which established a further and alternative basis of claim. Again we do not agree.
31. As we understand it the further and alternative basis of claim (a) is, and was, that the manner in which the investigation had been conduced amounted to sexual harassment and therefore direct sexual discrimination without the need for any comparisons to be made and (b) it is not, and never was, put on the basis that the investigation would have been conducted differently if Ms Smith had been a man and the complaint had been against a woman. It was therefore never the Appellant's case that there was a need for any actual or hypothetical comparisons to be made.
32. We are unclear why some of the matters relied on in the skeleton argument before the Employment Tribunal and the skeleton argument before us (e.g. delay and the fact that the investigation took longer than Zeneca's recommended time scale of nine days) lead to a conclusion that the process amounted to sexual harassment. But, as we understand it, the argument that the Appellant wished to put was that the process taken as a whole, including in particular the fact that she was repeatedly questioned, amounted to sexual harassment. In this context the Appellant referred us to the following passage contained in the European Commission Recommendation of 27 November 1991 on the protection and dignity of women and men at work (92/131/EEC): "It must be recognised that recounting the experience of sexual harassment is difficult and can damage the employee's dignity. Therefore, a complainant should no be required repeatedly to recount the event complained of where this is unnecessary" and submitted that this demonstrated that sensitive and sympathetic treatment of a complainant of sexual harassment by an employer is essential. For present purposes we assume that if the Appellant could have made good the factual bases of this alternative claim (e.g. that there was unnecessary repeated questioning) she would have had a good or at least an arguable claim in law based on sexual harassment.
33. This alternative claim constitutes a serious allegation and, in particular, the allegation inherent in it that the questioning that took place was unnecessary inappropriate and amounted in all the circumstances to sexual harassment, is a serious one. Further, it is a serious allegation that is being made against individuals in the employ of Zeneca. It seems to us that fairness requires that both those individuals and Zeneca are given proper warning that those allegations are being made.
34. Naturally we accept that sexual harassment is a serious matter and causes damage and upset to those who are subjected to it. However, it also follows that the making of an allegation of sexual harassment against a Company and its employees is also serious and can have serious repercussions, both for the individuals and the Company concerned. It follows that they should have a fair opportunity to deal with it.
35. In our judgment the stance taken by the Applicant before the Employment Tribunal and before us is one which fails to have proper regard to the need for an Employment Tribunal to ensure that Zeneca (and their employees) had a proper, and thus a fair, opportunity to deal with the additional allegations that the Appellant wanted to make against them and which, if they were accepted, could be damaging to their reputations and financially.
36. Here Miss Smith was subjected to sexual harassment by the Second Respondent. This is serious, damaging and upsetting for her. It does not however mean that she should be permitted to introduce an alternative and further basis of her claim of direct sexual discrimination (i.e. harassment in the conduct of the investigation) in a manner that would not be fair to Zeneca and other employees of Zeneca.
37. It seems to us that, if prior to the hearing before the Employment Tribunal the Applicant had made a further or alternative claim based on the conduct of the investigation, Zeneca (and its relevant employees) would have prepared for the case differently. For example, it is clear from the statements that Zeneca and its witnesses did not appreciate that the Applicant might seek to claim on this additional basis. If they had appreciated that the Applicant would, or would seek to, advance such a claim it seems to us that they would, as a matter of prudence and common sense, have wished to set out a full explanation as to why the investigation was conducted in the manner that it was. Additionally, during the course of the hearing the Applicant would have been cross-examined on such matters.
38. In our judgment it is clear, and any Employment Tribunal properly directing itself would have concluded, that it would have been unfair for this Employment Tribunal to deal with this additional basis of claim in the manner in which they were invited to do so on behalf of the Applicant. In our judgment fairness would have required as a minimum (a) an adjournment to enable Zeneca and its relevant employees to prepare their case in respect of this alternative and additional basis of claim and (b) cross-examination of the Applicant in respect thereof.
39. It follows that in our judgment the refusal of the Employment Tribunal to consider this alternative and additional basis of claim was not perverse.
40. However we need to go on and consider whether the Tribunal erred in law in their approach to the issue. The Appellant argues that they did. In support of that argument she relies mainly on the decision of this Tribunal in Quarcoopome v Sock Shop Holdings Ltd [1995] IRLR 353 and the points on labelling dealt with in paragraphs 29 and 30 above. The Quarcoopome case is not referred to in the Extended Reasons but another decision of this Tribunal Selkent Bus Co. Ltd v Moore [1996] ICR 836 is. The Selkent case is relevant to this point and contains general guidance on amendment (and in our judgment the addition of a further and alternative act complained of without formal amendment or under some other description e.g. as particulars). This guidance and approach is in line with the approach of the courts in other areas of the law (see for example The Secretary of State for Trade and Industry v Davies [1996] 4 AER 289 (in particular at 299J to 301B), In re Lo-Line Electric Motors Ltd and Others [1988] Ch 477 (in particular at 486C to 487A) and In re Sevenoaks Stationers Ltd [1991] Ch 164 (in particular at 176G to 177E)).
41. The Selkent case shows that an Employment Tribunal has to exercise its discretion judicially having regard to all the relevant circumstances which will potentially include a number of competing factors. In the Selkent case at 842F to 844C this Tribunal set out the procedure and practice to be applied in respect of amendments. The following passage appears at page 843F to 844C:

"(4) Whenever the discretion to grant an amendment is invoked, the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.

(5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant:

(a) "The nature of the amendment". Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The Tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.

(b) "The applicability of time limits." If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, e.g. in the case of unfair dismissal, s.67 of the Employment Protection (Consolidation) Act 1978.

(c) "The timing and manner of the application". An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Regulations of 1993 for the making of amendments. The amendments may be made at any time - before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision."

This case therefore makes it clear that in exercising its discretion, and thus in determining where the balance of injustice and hardship lies, the Tribunal should have regard to all the circumstances of the case and should not take a narrow approach. It is an approach that considers what is fair in all the circumstances.

42. Further the point made in (5)(b) of the citation shows the relevance of the time limit imposed by s.76(1) of the Sex Discrimination Act 1975 and thus potentially of the question whether it would, in all the circumstances, be just and equitable to allow an Applicant to amend or particularise to advance an additional "act complained of". Additionally in determining what is just and equitable under s.76(5) the Tribunal is directed by the sub-section to have regard to all the circumstances of the case and would therefore consider the competing interests of the relevant persons.
43. In our judgment paragraphs 31 and 32 of the Extended Reasons indicate that the Employment Tribunal had regard to the Selkent case (which they refer to earlier in the Extended Reasons) in deciding that they "did not have jurisdiction to consider" the alternative and additional claim that the conduct of the investigation constituted harassment (see paragraph 31 of the Extended Reasons) and that "No application was made at any time to amend the Originating Application and accordingly (our emphasis) the Tribunal finds that such allegation cannot now be considered". In our judgment the two findings should be read together and when this is done they show that the essential basis of the Employment Tribunal's reasoning was that in the absence of an amendment being made, or further particulars being given, this alternative and additional claim was not before them and therefore in their language they did not have jurisdiction to consider it and it cannot be considered.
44. It was argued on behalf of Zeneca that the Employment Tribunal considered the alternative and additional claim as being out of time (see s.76 Sex Discrimination Act 1975). We do not so read paragraphs 31 and 32 not least because they do not contain any consideration of the question whether it would be just and equitable to allow the claim to be made.
45. In our judgment the Quarcoopome case needs to be considered in the light of (a) the decision expressly refereed to in it of Dodd v British Telecommunications Plc [1988] IRLR 16, (b) sections 5(1), 63 and 76 Sex Discrimination Act 1975 (and thus the equivalent sections in the Race Relations Act 1967 namely sections 3(3), 54 and 68), and (c) the decision of the Court of Appeal in Cast v Croydon College [1998] ICR 500.
46. The Cast case concerned s. 76 and in particular whether there was an act extending over a period but it is a recent example in the Court of Appeal of the need when considering s. 76 to identify and classify the act, or acts, complained of. For example at page 511 F/G of the Cast case by reference to Akhtar v Family Services Unit (unreported) Auld LJ says:

Though its facts are very different from those of this case, the decision is of value in two respects: first, in its reference to the need to examine carefully the factual basis of the complaint in order to determine the specific act of which complaint is made ---------------

This is relevant and important in the application of s. 76 and the approach to the consideration of whether it is just and equitable to extend time in cases where (a) all acts complained of are out of time, and (b) some but not all acts complained of are out of time.

47. We add that it seems to us that this clearly follows from the wording of s. 76 when read alone or together with sections 5(1) and 63 Sex Discrimination Act 1975 because it shows that the statutory time limit runs from when the "act complained of was done". Further in our judgment the terms and time limit set by s. 76 is a clear recognition by, and within, the Act that an Applicant has to found a complaint whether it be of sex discrimination (as defined) or of discrimination (as defined) by reference to certain events or "acts complained of".
48. It follows in our judgment that when s. 63 refers to a complaint by any person that another person "has committed an act of discrimination against the complainant which is unlawful by virtue of Part II" it is referring to an act or acts of discrimination (as defined) and thus to one or more acts complained of and one or more causes of action. This conclusion flows from the wording and scheme of the Sex Discrimination Act (and in particular sections 5(1), 63 and 76) and is supported by s. 6 (c) the Interpretation Act 1978).
49. The Dodd case and the Quarcoopome case are both concerned with the question whether an originating application was an effective complaint to prevent time from running. The Dodd case concerned an unparticularised originating application presented on 27 January 1986. It was held that it was a complaint which drew to the attention of the reader that the applicant was making a complaint of discrimination in relation to her rejection for a particular post with the respondent for which she had applied. Its deficiency was the lack of particulars under paragraph 12 of the originating application. This was not cured until an amended document was received by the Industrial Tribunal on 14 February 1986 which was after the expiry of the three month time limit from the Applicant's rejection for the post which took place on 6 November 1985. But the application for the post and the rejection on that date were referred to in paragraphs 6 and 11 of the unparticularised originating application (see paragraph 4 of the judgment). The unparticularised originating application therefore identified the act complained of and that the applicant was making a complaint of discrimination in respect of it but it did not specify whether that was a complaint under the Race Discrimination Act or the Sex Discrimination Act or both.
50. In the Quarcoopome case this Tribunal concluded that an originating application which makes a claim for race discrimination (and therefore by analogy sex discrimination) incorporates any claim for direct or indirect race (or sex) discrimination and victimisation. On that basis it was held that:

(a) the addition to an originating application of an allegation of indirect discrimination that was "very difficult to understand from the existing paragraphs in the originating application" and therefore had not been previously particularised was not to be treated as a new claim and thus as a claim that was out of time, and

(b) on the basis that the application to add the claim was to be treated as an application to amend the highest test that the Employment Tribunal should apply was to see whether any hardship or prejudice would be incurred by the Respondents sufficient to justify rejecting the application.

51. Therefore the Quarcoopome case:

(a) recognises and proceeds on the basis that the additional claim of indirect discrimination therein could not be made without leave being given to add it (by way of amendment or particularisation) and it is therefore not authority for the propositions (i) that the Appellant in this case could make the additional and alternative claim that the conduct of the investigation amounted to sexual harassment, and therefore direct sex discrimination, without amending or particularising or otherwise giving proper notice of that claim, or (ii) that the Appellant in this case could make that additional and alternative claim without obtaining the permission of the Employment Tribunal to add it to the issues they were to decide,

(b) does not determine whether the addition should be categorised as an amendment or the giving of particulars, and

(c) adopts an assessment of hardship or prejudice approach to the issue whether an addition by amendment or particularisaton should be allowed.

52. In our judgment, having regard in particular to the points made in paragraphs 45 to 48 hereof :

(a) the Appellant sought to add a further and alternative act (or acts) complained of within the general statutory definition of sex discrimination (see s. 5(1) Sex Discrimination Act),

(b) the effect of that was that the Appellant was seeking to add a new and alternative act of discrimination and basis for claiming damages albeit that it is within the description "sex discrimination" as defined, and thus an additional complaint or basis of claim,

(c) the addition should be classified and treated as an amendment but even if categorised as particulars their effect would be as set out in (b) and the test to be applied in deciding whether the addition should be made would be that referred to in the Selkent case and thus one that on the basis that the Quarcoopome case is correctly decided and the amendment was not out of time is a balance of hardship and injustice test having regard to all the circumstances and thus one that had regard to whether it would be fair to allow the addition to be made,

(d) without being given permission to make the addition (which could have been done without a formal amendment or document if such a course had been considered to be fair) the alternative and additional complaint was not before the Employment Tribunal and therefore in their language they did not have jurisdiction to consider it and it could not be considered (see also Chapman v Simon [1994] IRLR 124 (in particular paragraphs 33 and 44 of the judgment of Balcombe LJ), and

(e) if, which we do not accept, the Quarcoopome case indicates that a more favourable approach to the Applicant should be taken in respect of the addition than that indicated by the Selkent case that more favourable approach is wrong and cannot stand with the balanced and "in all the circumstances" approach indicated by the Selkent case and the authorities referred to in it which accord with the approach taken in other areas of the law.

53. As we have explained in our judgment if a balance of hardship and injustice approach having regard to all the circumstances is taken in this case it would have been unfair for this Employment Tribunal to deal with the additional basis of claim in the manner in which they were invited to do so on behalf of the Applicant. It follows in our judgment that the Quarcoopome case does not support the Appellant's contention that the Employment Tribunal erred in law in this case because on the assumption that that case was correctly decided it does not support the contentions:

(a) that the additional claim was before the Employment Tribunal and in their language they therefore had jurisdiction to deal with it and it could be considered without permission for an amendment being given, or permission for the claim to be added being given, by the Employment Tribunal, or

(b) that such permission should be given if on a balance of hardship and injustice approach being taken it would not be fair for it to be added in the manner sought by the Appellant.

54. In this case the Appellant was asserting that the facts underlying the additional and alternative claim were already before the Employment Tribunal. If we had accepted that submission (which we do not) we can see that it could be said with force that it would not have been unfair to Zeneca (and its employees) for the Employment Tribunal to have entertained the additional and alternative claim. However we comment that the alternative argument of the Appellant based in effect solely on the Quarcoopome case that the Employment Tribunal should have entertained the additional and alternative claim even though it involved more than a relabelling of facts already before and fully considered by the Employment Tribunal has caused us some concern because it seems to us to reflect an approach by Applicants in discrimination cases which fails to have proper regard to the seriousness of the allegations they make when looked at from the standpoint of the persons against whom they are made and thus to fairness to the Respondent.
55. We therefore comment further on the Quarcoopome case as follows;

(a) In our judgment paragraph 9 of the judgment in the Quarcoopome case does not accurately summarise the position in the Dodd case. As we have said the originating application in the Dodd case identified the refusal of the Applicant's application for a job (see paragraph 49 above).

(b) In our judgment the approach taken in the Quarcoopome case is different to that taken in the Dodd case because it looks to the wide description of the claim asserted rather than the act or acts complained of. Indeed in the Dodd case the problem was in many ways the inverse of that which existed in the Quarcoopome case because in the Dodd case the act or event that formed the subject matter of the complaint was identified and what was missing was a reference to the relevant Acts or to race or sex discrimination.

(c) It follows in our judgment that the Quarcoopome case is not supported by, or in line with, the Dodd case and paragraph 10 of the judgment in the Quarcoopome is flawed.

(d) In the Quarcoopome case no mention is made, or account taken, of the point that the definition sections in both statutes exclude victimisation from the definition of race (or sex) discrimination. Here we are not concerned with a claim for victimisation but it seems to us that that this omission in the reasoning in the Quarcoopome case supports the view that where an Applicant seeks to add a victimisation claim the Quarcoopome case was wrongly decided (see also paragraph 57(1) hereof).

(e) Further in our judgment this omission in the reasoning supports the view that in the Quarcoopome case this Tribunal gave insufficient weight to the wording and scheme of the legislation.

(f) Although we think that this is not mentioned expressly as we understand it the amendment concerning the allegation of indirect discrimination in the Quarcoopome case was based on acts that took place within 3 months of the presentation of the originating application. (This was the position in this case.)

(g) That understanding leads to the conclusion that the reasoning and finding in the Quarcoopome as to the application to amend or particularise not being out of time applies only when such an application relates to acts that took place (or are to be treated as having taken place as an act extending over a period) within the three month time limit.

(h) If that understanding and conclusion, and therefore that limitation on the extent and effect of the decision in the Quarcoopome case, is not correct it would lead to the surprising result that a claimant who particularised all the bases of his claim for discrimination and therefore demonstrated that some or all of them related to acts outside the statutory time limit would be in a worse position that a claimant who simply claimed discrimination but did not particularise the acts he was complaining of. This is because in the former case it is the common, and in our judgment correct, approach of Employment Tribunals (i) to consider whether all, or some, of the claims are out of time, and (ii) in respect of those that are out of time whether it should consider them as claims (rather than only as relevant background if there are claims in time) on the basis that it would be just and equitable to do so. In our judgment it would be remarkable, and wrong, if at the same time points were not considered on the addition of acts complained of to an originating application, or otherwise to a case.

56. If it had been necessary for us to do so we would have refused to follow the Quarcoopome case because in our judgment:

(a) as set out in paragraph 55 (a) to (c) it does not accord with or follow the reasoning and approach in the Dodd case,

(b) it fails to have proper regard to the wording and the scheme of sections 3(3), 54 and 68 Race Relations Act 1967 (and thus the equivalent sections in the Sex Discrimination Act namely sections namely 5(1), 63 and 76 thereof),

(c) it fails to have proper regard to the point confirmed by the Court of Appeal in the later case of Cast v Croydon College of the need in discrimination cases to identify the acts complained of, and

(d) for these reasons it is wrong.

57. We add that in our judgment this conclusion accords with and is further supported by (i) the decision of the Court of Appeal in Chapman v Simon [1994] IRLR 124 (see in particular paragraphs 33 and 44 of the judgment of Balcombe LJ), (ii) the decisions of this Tribunal in Lewis v Blue Arrow Care Ltd (EAT/649/99), where it was held that the observation in he Quarcoopome case that a claim for race discrimination includes a claim for victimisation should be treated as obiter and cannot stand with the decision of the Court of Appeal in Bryant v Housing Corporation [1999] ICR 123, and (iii) the Bryant case itself.
58. In our judgment, as appears in particular from paragraphs 45 to 48 above, when the points referred to in paragraphs 56 (a) to (c) and 57 are taken into account they show that:

(a) a complaint or claim pursuant to s. 63 Sex Discrimination Act relates to an allegation that a person has committed an act of discrimination which is unlawful by virtue of Part II,

(b) when read alone (or together with sections 1 to 5 and 76) s. 63 Sex Discrimination Act indicates that (i) a complaint or claim relates to, and is based on, an act or acts complained of which are alleged to be within sections 1 to 4 and thus sex discrimination or discrimination as defined by s. 5(1), (ii) a complaint of claim of direct sex discrimination is different to, and separate from, one of indirect discrimination or victimisation and (iii) although there may be an overlap of acts or facts underlying the separate claims they are based on different "acts complained of",

(c) the statutory time limit imposed by s. 76 relates to acts complained of and therefore to the bases of alleged acts of discrimination and not to a generic description of such claims which could cover alleged separate acts of discrimination going back over years,

(d) the correct approach to deciding whether an originating application was an effective complaint to prevent time from running is to take the approach taken in the Dodd case and consider on a generous approach to the construction of the originating application whether it identifies an act or acts complained of and that the claim is one of discrimination (as defined) or sex discrimination (as more narrowly defined),

(e) if the originating application does that it then prevents time running in respect of claims of such descriptions based on such act or acts (but not other claims of discrimination or sex discrimination as defined) and this has the result as in the Dodd case that further information as to, or amplification and explanation of, complaints or claims included in the originating application would be properly classified as particulars, and

(f) if the originating application does not do that the addition of complaints or bases of claim based on other acts complained of constitutes the introduction of new complaints or bases of claim and their introduction should be classified as an amendment and one of the considerations in the decision to allow it would be the time limit set by s. 76 Sex Discrimination Act (see the Selkent case and paragraphs 41 and 42 hereof).

59. We add that it seems to us that in a case like this one where, on the approach to the ambit of the originating application set out in paragraph 58 hereof, a complaint or basis of claim was not included in the originating application but it related to an act or acts within three months from the presentation of the originating application, it is probably unlikely that there would be different outcomes to the issue whether it should be added to and included in the complaints to be dealt with by the Employment Tribunal:

(i) on the approach set out in paragraph 58 which as appears from paragraph 58(f) includes a consideration of the statutory time limit in s. 76 Sex Discrimination Act and thus a consideration of whether it would be just and equitable in all the circumstances to allow the introduction of the new and additional alleged act of discrimination, and

(ii) on an application of Quarcoopome which although it treats the complaint as being within the ambit of the originating application involves (as we have explained) a consideration of whether all the circumstances including the balance of hardship and injustice (and thus fairness) points to the addition of the new and additional alleged act of discrimination.

60. It follows from the above reasoning that:

(1) We do not accept the Appellant's arguments based on the Quarcoopome case.

(2) If we are wrong and the Employment Tribunal approached this issue on the basis that the Appellant was seeking to add a new and additional claim out of time they did not err in law, because in our judgment it was not included in the originating application with the result that its addition to the matters before the Employment Tribunal involved a (formal or informal) amendment and a consideration of the statutory time limit.

(3) In any event we are of the view that an Employment Tribunal correctly directing itself in law would inevitably have concluded that the Appellant should not be allowed to make a claim in the manner in which she sought to do so based on an assertion that the manner in which the investigation was carried out by and on behalf of Zeneca amounted to harassment and direct sex discrimination.

The Third Ground of Appeal

61. In the skeleton argument put in on behalf of the Appellant this is described in the following terms:

"That the Employment Tribunal's decision that the Appellant's dismissal was neither discriminatory nor did it amount to victimisation, was erroneous or perverse."

62. In the judgment of this Tribunal, given on the Preliminary Hearing, this ground was described as a perversity challenge and notwithstanding the alternative way in which it was put in her skeleton argument counsel for the Appellant (in our judgment correctly) accepted that this ground of appeal was based on perversity alone.
63. At the Preliminary Hearing this Tribunal described this ground as being "just arguable". We can see why they did so but having had the benefit of hearing argument from both sides in our judgment the arguments advanced by the Appellant that the conclusions reached by the Employment Tribunal in paragraphs 33 and 34 of the Extended Reasons are perverse have no force.
64. In our judgment what the Appellant was seeking to do in respect of this ground of appeal was to re-argue the facts and thus to repeat points which were, or could have been, made to the Employment Tribunal with a view to causing them to reach a different conclusion on the facts relating to her claims in the second IT1. This is not a permissible basis of appeal.
65. When one has regard to the matters listed below in our judgment it cannot be said that the Employment Tribunal reached a perverse conclusion in holding that the non-renewal of the Appellant's fixed term contract was not an act of unlawful sex discrimination or victimisation on the part of Zeneca. The matters are:

(A) Paragraphs 19 and 20 of the Extended Reasons show that:

(i) from about early 1995 Zeneca had decided to make substantial changes to site security,

(ii) this had implications for the role of receptionist with consideration being given to involving an outside security company and transferring the reception to the gate house,

(iii) due to this uncertainty Zeneca determined that it should only appoint a temporary receptionist on a fixed term contract to carry out the requisite duties until a final decision was made, and

(iv) accordingly when the Applicant was appointed as a receptionist in January 1997 this was pursuant to a fixed term contract for one year due to expire on 26 January 1998 and when that contract was entered into the Applicant had made no complaints of unlawful sex discrimination.

(B) There was no dispute between the parties that it was only after the Applicant had gone on to sick leave that Zeneca finally took the decision to utilise the external security company to carry out reception duties. The Employment Tribunal recognised that it might be possible to infer that the cause of Zeneca's decision was the Applicant's sex, or the institution by the Applicant of proceedings or the complaint she had made, and therefore the Employment Tribunal considered whether or not they should infer and therefore conclude:

(i) that Zeneca would have treated a male employee differently, and/or

(ii) the Applicant was being victimised

but refused to do so, and it is apparent that there was evidence before the Employment Tribunal upon which they could properly base their conclusion to reject the claims of unlawful sex discrimination and further or alternatively victimisation based on the non-renewal of the Applicant's fixed term contract.

(C) The evidence demonstrated and, indeed, it could not and was not seriously disputed that:

(i) no in-house employee was employed as a receptionist after the Applicant.

(ii) the Applicant's employment expired in accordance with the terms of her fixed term contract, no sooner and for the reason originally envisaged,

(iii) reception duties were thereafter carried out by an external security firm,

(iv) those duties were in fact merged with a more general security role, and

(v) this was all consistent with Zeneca's long-standing plans for the development of the receptionist/security functions.