Bryant v The Housing Corporation
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUXTON,LORD JUSTICE PETER GIBSON,LORD JUSTICE NOURSE |
| Judgment Date | 21 May 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0521-8 |
| Docket Number | EATRF 97/0822/3 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 May 1998 |
[1998] EWCA Civ J0521-8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London WC2
Lord Justice Nourse
Lord Justice Peter Gibson and
Lord Justice Buxton
EATRF 97/0822/3
MR A HOCHHAUSER QC and MR W BIRTLES (instructed by Messrs Trowers & Hamlins, London WC2) appeared on behalf of the Appellant Respondent.
MR M WYNNE-JONES (MR S EVANS 21.5.98) (instructed by Messrs Keith Bright, Birmingham) appeared on behalf of the Respondent Appellant.
Thursday, 21st May 1998
This is an employer's appeal, brought by leave of the single Lord Justice, from an order of the Employment Appeal Tribunal [the EAT] dated 20 January 1997, which allowed the employee's appeals from two decisions of an industrial tribunal [IT] dated 21 March 1996 and 19 April 1996.
The background facts
Mrs Bryant was employed by The Housing Corporation with effect from 4 May 1993 as a "Performance Review Manager". This was a senior post, as is demonstrated by the salary of some £31,000 that attached to it. She was informed on 21 July 1995 that she would be dismissed with effect from 22 October 1995. She applied to the Industrial Tribunal [IT] on that same day on Form IT1, stating in the relevant box on the form that her complaints were: "A) Unfair Dismissal B) Unlawful Deduction from Wages/Breach of Contract C) Sex Discrimination." We have not been concerned in these proceedings with the wages claim. Under "details of your complaint" she submitted a nine page document. Six pages came under the heading "unfair dismissal", and a separate two pages under the heading "sex discrimination". Mrs Bryant drew these documents up herself, having however taken advice from the solicitor who had previously advised her in connexion with her difficulties with her employers.
The sex discrimination complaint related to an appraisal interview that Mrs Bryant had had with the then Regional Director of The Housing Corporation on 5 November 1993 at which, if the matters alleged in the IT1 were correct, he made offensive and improper observations of a sexual nature. Mrs Bryant complained of this matter to her employers who, in her view, investigated them in an insensitive and unfair fashion. This matter concluded with a letter to Mrs Bryant from The Housing Corporation dated 5 July 1994, which stated that The Housing Corporation had found that the Regional Director's comments had been wholly inappropriate and uncalled for and inconsistent with the organisation's Equal Opportunities Policy. Mrs Bryant in her application to the IT described this as a grudging letter that offered no apology. At the same time and, as Mrs Bryant acknowledged, as a result of her complaint, the Regional Director who had been criticised left The Housing Corporation.
The applications to the IT
Mrs Bryant recognised in her application that the complaint of sexual discrimination fell outside the three month time limit; I interpose to say that there was of course no limitation problem with regard to the complaint of unfair dismissal, which I understand is still on foot, awaiting the outcome of this appeal. The IT held a preliminary hearing on 21 March 1996 at which, after hearing submissions by both parties, it determined that the complaint of sex discrimination should be dismissed on that ground. In its reasons for that decision the IT said:
1. The application alleging discrimination on grounds of sex was presented on the 21 October 1995. The case is pleaded in detail therein. It is admitted that the complaint arose more than 3 months before the date of presentation of the application. The tribunal is asked to use its discretion provided by Section 76 of the Sex Discrimination Act 1975.
2. The act complained of occurred, at the latest, on the 5 July 1994. The incidents giving rise to it happened even earlier. The applicant did not pursue the matter then for fear of reprisal from the respondent. The tribunal is satisfied that the act complained of was not the applicant's dismissal, nor can it be said that there was a continuing act.
3. It is not just or equitable to extend the time limit because—
a) the applicant is a professional woman who can be said to be aware of her rights;
b) she was aware of her grievance at the time;
c) the delay in presenting a claim was her decision in the light of her employment position.
At that hearing The Housing Corporation was represented by counsel. Mrs Bryant was represented by an organisation called Employment & Labour Law Consultants Ltd which holds itself out as qualified to advise in employment law, and in connexion with employment proceedings. The person from that organisation who handled Mrs Bryant's case was a Mrs Kynes-Dobbie. On the day after the hearing, on 22 March 1996, Mrs Kynes-Dobbie wrote to the IT a letter that in its relevant part said:
we would ask the Chairman of the tribunal to accept that in setting out her unfair dismissal claim and her sex discrimination claim the applicant has raised by way of facts and complaints sufficient grounds to claim relief for victimisation under s 4(1) of the Sex Discrimination Act 1975 (SDA) and the enclosed Schedule refers to these details. This matter was raised during the preliminary hearing. No ruling was made upon it.
Moreover, the claim of victimisation is an intrinsic part of the applicant's reasons for maintaining inter alia that the reasons for dismissal makes the true reason for the termination of her employment although nowhere in the pleadings is a claim under s4(1)SDA expressly stated.
To remove immediately one distraction from the case, the EAT concluded that Mrs Kynes-Dobbie had not raised the issue of victimisation at the hearing before the IT; no attempt has been made before us to disturb that conclusion; and I say no more about that allegation.
In the schedule annexed to Mrs Kynes-Dobbie 's letter, which was headed "Application to Amend the Originating Application" reference was made to four comparatively brief extracts from the complaint, one from the section headed unfair dismissal and three from the section headed sex discrimination, that were said to support the contention that "in the course of setting out her grounds for unfair dismissal and sex discrimination [the applicant] has raised sufficient grounds for claiming relief for victimisation". The application was not copied to The Housing Corporation, but on receiving a copy of it from the IT the solicitors to The Housing Corporation wrote to the IT on 15 April 1996 expressing their opposition to the application on various grounds, including that the allegation of victimisation would increase the evidence before the tribunal, in that various witnesses, involved in the alleged victimisation but not necessarily in the unfair dismissal allegations, would then be required to give evidence.
This application was considered by the chairman of the IT, who had presided at the first application on 21 March 1996. The applicant appears to have been disposed at one stage to complain that the matter had not been heard by a full tribunal, but that objection is not now pursued. By letter dated 19 April 1996 he dismissed the application, saying
The case as pleaded reveals no grounds for such a claim. The application is out of time and it is not just or equitable to extend the time limit.
The appeal to the EAT
Mrs Bryant appealed against that decision. So far as matters still relevant to the appeal before us are concerned, she complained on two grounds. First, that the Chairman's decision that the case as pleaded revealed no grounds for a claim of victimisation was perverse. That complaint was supported by extensive analysis of and reference to the content of her application, that analysis going, in both length and content, far beyond the schedule claiming to demonstrate the basis of the victimisation claim that had been placed before the chairman of the IT. Second, that the Chairman had failed to give any reasons for deciding that it was not just and equitable to allow the "claim" (by which was properly meant, the amendment specifically to allege victimisation) out of time.
The jurisdiction of the EAT and of this court
The jurisdiction of the EAT on appeal from an IT is limited to matters of law. That limitation defines the role both of the EAT and of this court. It has the effect of causing this court to look carefully at the original decision of the IT as well as at that of the EAT. That is the case where it is sought to complain of decisions as to the fairness of a dismissal which, being decisions of fact, can only be challenged on grounds of perversity: see Campion v Hamworthy Engineering [1987] ICR 966. The same limited approach applies to appeals, such as in our case, against procedural or interlocutory orders of the IT, where an appellate court whose jurisdiction is limited to matters of law can only interfere where there has been a breach of well-established legal principles such as failing to take account of relevant factors: see per Mummery J in Kwik Save Stores v Swain [1997] ICR 49 at p54F. As this court put it in X V Z Ltd [1998] ICR 43 at p54C, this approach reflects the fact that the tribunals themselves are the best judges of case management decisions.
Therefore, in hearing appeals from the EAT the first question that this court has to address is whether there was an error of law on the part of the IT that gave the EAT its jurisdiction. That obligation is reflected in what was said by Sir John Donaldson MR in another case concerning amendment of...
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