Appeal No.	EAT/60/02/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 March 2003

Before
HIS HONOUR JUDGE ANSELL
MS S R CORBY
MR T HAYWOOD

(1) MISS E STOTT 
(2) MS F MURPHY 
(3) MS C BICKERDYKE	APPELLANTS

PRISON SERVICE HMP WAKEFIELD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MISS A GUMBS
(of Counsel)
Instructed by:
Equal Opportunities Commission
Arndale House
Arndale Centre
Manchester M4 3EQ	
For the Respondent	MR A SERR
(of Counsel)
Instructed by:
The Treasury Solicitor
Queen Anne's Chambers
28 Broadway
London SW1H 9JS	

HIS HONOUR JUDGE ANSELL

1	This is an appeal from a unanimous Decision of an Employment Tribunal held at Leeds in October 2001 who decided that applications alleging unlawful sexual discrimination were out of time and the Tribunal refused to allow them to be heard, in other words to extend time, under the just and equitable principle.  The Decision was originally promulgated on 21 November 2001 but there was a minor error in the Decision and a retyped version was sent out on 23 January 2002.  Leave for this hearing was given by this Court on 19 June, His Honour Judge Levy QC presiding.  

2	Ms Murphy and Miss Stott were Prison Officers and Ms Bickerdyke was a Probation Officer at Wakefield Prison, and between July and October 2000, they received abusive and sexually explicit phone calls and suspicion fell on them emanating from inside the prison.  Eventually a trap was set and on 20 October 2000, an inmate was identified as the culprit.  One of the allegations is that there was a lack of support to these ladies in the way that the matter was investigated both before and after 20 October and a further allegation was that, effectively, the prison staff were responsible for these actions in that they allowed the miscreant to have access to a phone, allowing him to make these most unpleasant phone calls.  

3	A total of four other inmates were also possibly involved and initially they were moved to another wing into the segregation unit of that wing.  Three of them were sent thereafter to other prisons; one, however, was not moved to another prison until either 24 or 25 January - there is a minor error on the dating within the Tribunal Decision and a further complaint is raised in relation to the manner that this matter was dealt with between October and January, particularly because the last inmate was allowed to remain in the prison up to January 2001. 

4	In terms of advice, the Applicants had initially gone to the Prison Officers Association for advice and that appears to have been during the latter part of the year 2000.  There was no official grievance taken out by the Applicants at that time.  They were not happy about the POA continuing to act for them because of conflicts of interest with male POA members, so they were then diverted to a legal advice service and particularly Mr Peter Allen at that service.  He did not give any advice to instigate proceedings; he did instruct Counsel, although there was a letter dated 1 February, where Mr Allen recognised that if there was an intention to bring a claim, there might be a problem relating to time limits, since he believed that the limit for the time ran from 20 October, that being the date of the identification of the main culprit.  

5	Counsel’s advice was considerably delayed and was not finally received until 11 May and the advice, certainly that which Mr Allen passed on to the ladies was that their only potential claim was in relation to breach of contract namely breach of the implied term of trust and confidence.  They were then diverted to a firm of solicitors in Manchester, who after a short period of time, two weeks or so, did instigate proceedings on 31 May, and as I have said already, the preliminary hearing which was fixed by the Tribunal to determine the issue of time limits was fixed for 31 October.  

6	The Tribunal, in determining the issue, took as the last date of discrimination 24 January 2001, that being the date, as I have indicated, when the last prisoner was moved.  There is no finding within the Tribunal Decision as to whether or not they considered that there was a continuing act of discrimination throughout or whether there were separate acts of discrimination, the first act being the allegation of vicarious responsibility allowing the prisoner to make the phone calls and the second continuing act being the failure to carry out proper investigation and take proper notice of the complaints that had been made.  

7	The Decision was based on the final act of discrimination being in January 2001, although in their Decision they did indicate that they would have decided that the Decision would have been the same whether the last date of alleged discrimination was late autumn 2000 or January 2001.  So it seems that even if there were two acts, their Decision effectively would have been the same, and they refused to extend time.  They identified that the delay in issuing over and above the normal time limit was one of approximately six weeks, and then they went on to say this:
“The date when the Tribunal is making its Reserved Decision is 7 November 2001.  If this case goes to a full hearing, it will probably be listed in March 2002.”

They went into the reasons for the application being out of time and identified the Applicants as being undecided as to what they wanted from their complaint; namely whether they wanted compensation or simply a proper and effective communication from the prison management.  

8	They then identified the delay which I have already set out dealing with the POA, their legal advisory service, and finally the lawyers, and in paragraph (d) on page 6 of the Decision they said this:
“(d)  As has been noted above there will a significant delay before this case can go to a full hearing.  It will be approximately eighteen months after the discovery that an inmate was responsible for making the telephone calls.  No official grievance was taken out by the Applicants against the Respondent at any time, and therefore there are no contemporaneous minutes relating to any grievance hearings which would help the Tribunal in coming to its conclusions.  The only contemporaneous documents are minutes of debriefing meetings and letters to and from advisors.  It was the conclusion of the Tribunal that there would therefore be serious difficulty in providing a fair hearing because of the difficulty of witnesses remembering what had happened at the time of the complaint.  It was clear to the Tribunal that there would be prejudice to the Applicants if the Tribunal found against them.  There would be no claim available in Employment Tribunal against the Respondent.  If the Tribunal found in favour of the Applicants the obvious prejudice against the Respondent would be that allegations would be allowed to be heard out of time but also further prejudice in that explanations for actions would be difficult to be given because of lack of contemporaneous notes.
(e) The responsibility of the Respondent for the delay
There was no submission by the Applicants’ representative that the Respondent was in any way responsible for the delay in entry of the application.  The Tribunal finds that this is correct.”

They refer to their discretion under section 76 and consider the incorrect advice and finally, conclude that it would not exercise its discretion to allow the application to be heard out of time.  

9	The substantial complaint made by the Appellants today is this: that the Tribunal have used the date of their hearing, and, indeed, the date of a final hearing as the appropriate date of assessment  of the factors relating to the just and equitable principle.  It is submitted that that was wrong in law because the time of assessment in relation to those factors which the Court should take into account should be the date when the proceedings were instituted, 31 May. Indeed, it is argued that to consider the factors at any other date would, for example, blame an appellant or applicant for such matters as Tribunal-led delay, a shortage of Judges or Chairmen of Employment Tribunals or an Employment Tribunal deciding to deal with these matters at a preliminary hearing, rather than together at a final hearing.  As was stated cogently in the written submissions, the approach taken by the Tribunal would have the effect of penalising an applicant with the effects of Tribunal or respondent-led delay in listing a preliminary hearing to determine whether it is just and equitable to extend the time, irrespective of the extent of the delay in lodging the application.  

10	Section 76(5) is well known, but I will, once again, refer to it:
“A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”
The discretion is very wide namely: “all the circumstances of the case …. if it is just and equitable to do so” - and quite clearly this Court should be loath to interfere with a wide discretion exercised properly by any Employment Tribunal.  Indeed, we remind ourselves from Hutchinson -v- Westward Television Ltd [1977] IRLR 69 for the Appellant to succeed on appeal they must show that the Employment Tribunal demonstrably took a wrong approach to the matter, or they took into account facts which they ought not to have done, or they failed to take into account facts which they should have done, or as a last resort which is always open on appeal, the decision was so unreasonable in all the circumstances that no reasonably instructed Tribunal could have reached.  

11	It is submitted on behalf of the Appellants that this effectively was a misdirection of law and in Dobie -v- Burns International Security Services (UK) Ltd [1984] IRLR 329 at paragraph 18 the Court of Appeal said thus:

“Once you detect that there has been a misdirection, and particularly there has been an express misdirection of law, the next question to be asked is not whether the conclusion the Tribunal is plainly wrong, but whether it is plainly and arguably right notwithstanding that misdirection.  It is only if it is plainly and unarguably right notwithstanding a misdirection that the decision can stand.”

12	In terms of extending time, general guidance was given in the case of Mills -v- Marshall [1998] IRLR 494  by this Court.  The President, Mr Justice Morison at paragraph 21 said thus:

“In this legislation, the Sex Discrimination Act, the court’s power to extend time is on the basis of what is just and equitable.  These words could not be wider or more general.  The question is whether it would be just or equitable to deny any person the right to bring proceedings when they were reasonably unaware of the fact that they had the right to bring them until shortly before the complaint was filed.  That unawareness might stem from a failure by the lawyers to appreciate that such a claim lay, or because the law ‘changed’ or was differently perceived after a particular decision of another court.  The answer is that in some cases it will be fair to extend time and in others it would not.  The industrial tribunal must balance all the factors which are relevant, including, importantly and perhaps crucially, whether it is now possible to have a fair trial of the issues raised by the complaint.  Reasonable awareness of the right to sue is but one factor.”

We note that Morison P used the phrase 
“Whether it is now possible to have a fair trial of the issues raised by the complaint.”.  
The case itself involved a considerable delay of some three years before the proceedings were instituted and were not done so until a decision of the European Court in relation to the rights of transsexuals to bring discrimination claims had been delivered.  

13	Harvey, at paragraph L 559, dealing with the just and equitable extension, said this:
“Whether the test is satisfied is primarily a question of fact for the tribunal to interpret, in the exercise of its discretion.  The following is a non-exhaustive list of factors which may prove helpful in assessing individual cases:
(a) the presence or absence of any prejudice to the respondent if the claim is allowed to proceed (other than the prejudice involved in having to defend the proceedings);
(b) the presence or absence of any other remedy for the applicant if the claim is not allowed to proceed;
(c) the conduct of the respondent subsequent to the act of which complaint is made, up to the date of the application;
(d) the conduct of the applicant over the same period, the length of time by which the application is out of time, the medical condition of the applicant, taking into account, in particular, any reason why this should have presented or inhibited the making of a claim;
(e) the extent to which professional advice on making a claim, and if it was sought, the content of any advice given.”

A number of those factors clearly indicate to us that the relevant date of assessment was the date when the proceedings were instituted, not the date when the Court is determining whether or not to extend time.

14	The only decision referred to us on this particular point is the case of Ministry of Defence -v- Bloomfield Evans, a judgment delivered by this Court on 23 March under EAT/63/99, with Mr Justice Charles presiding, and it was a case, again with substantial delay, where the Court was looking to identify the various factors that the Chairman had either, correctly or incorrectly, taken into account in coming to the exercise of his discretion.  It appears that there was no issue in the case as to whether the appropriate date was the date when the proceedings were eventually instituted or the date when the Chairman came to be assessing those factors.  At paragraph 68, Mr Justice Charles referred to this, under the heading “The test for extending time”:
“68	This is contained in Section 76(5) SDA and is set out in paragraph 1 of this judgment.  It requires us to consider if in all the circumstances of the case it would be just and equitable to extend time.  The statutory formula is a wide one which confers a judicial discretion.  In Harvey at paragraph L 559 the authors set out a non-exhaustive list of factors which may prove helpful in assessing individual cases.  We have had regard to these. In our view the reference therein to the conduct of the parties covers an assessment of the periods of delay and the reasons for them. In any event that is relevant.”

15	The next heading is “The date at which the assessment whether it is just and equitable to extend time should be made”
“69	In our judgment the date for assessment is the date on which the Applicant issued her proceedings (i.e. 16 December 1997).
Continuing Act
70	Oral submissions were not made to us that the relevant acts complained of were acts extending over a period for the purposes of Section 75(6) SDA.  Written submissions were made to the Chairman and to us to this effect. We do not accept them.  In our view no relevant policy was identified by the Applicant.  In any event the acts on Invincible came to an end in October 1996.”

This is a short reference without any detailed reasoning or argument to support it, there is a clear direction from Mr Justice Charles that the date of assessment is indeed the date when the proceedings were instituted and, as I have mentioned, there is some support from the various paragraphs set out in Harvey.  

16	We would not seek to depart from that conclusion and we are of the view that the relevant date is indeed the date when the proceedings were instituted, albeit that at that date, the Tribunal has a wide discretion under the just and equitable principle to take into account the many factors which it is allowed to do.  To take a later date, either the date when the Tribunal considered the application namely November 2001 or even advancing matters to a prospective hearing date of March 2002, would seem to us to work unfairly against an applicant, because that would allow other factors entirely outside the control of the applicant to enter into the discretion such as (a) when was the Tribunal able to give a hearing date?  (b) Did the Tribunal fix a preliminary hearing or a final hearing?  (c) Were there applications made by the Respondent for adjournments, for whatever reason?  These are just examples of other factors which, in our view, show the unfairness of taking that later date, and thus it follows that in our view the Tribunal were in error within subparagraph (d) of referring to a significant delay before the case can go to a full hearing.  

17	One of the factors that a Tribunal would have to consider is what was the state of the evidence available to either party, and particularly the Respondent, at the date the proceedings were instituted and/or that could affect the fairness of the final hearing but simply to allow a factor such as a passage of time from the date of application to the date of hearing to influence their Decision, is, in our view, an incorrect approach and our unanimous view is that we would remit the matter back to a Tribunal for them to reconsider the issue of discretion, as at 31 May 2001.  

18	It has been submitted to us by the Respondent that other factors were so persuasive that we should not allow an extension, because of those other factors, but we do not consider it appropriate for us to deal with the matter on that basis, and we are of the view that it requires a fresh approach from a new Tribunal to consider the factors as they were at the end of May 2001.  We would also hope that they would clearly identify whether there was a single continuing act of discrimination or two separate acts and whether their discretion would apply to both acts of discrimination.  As I have indicated already, there is a passage within the Decision which suggests that they would have approached the matter in the same way, but that matter clearly needs to be identified.  

19	A second issue was raised on the appeal which strictly is unnecessary for us to determine in view of the fact that we are remitting the matter.  However if we are wrong as regards the first matter, we would not have allowed the appeal in relation to the issue of documentation.  The complaint made by the Appellants in relation to documentation is that the Tribunal made an error in referring to the only contemporaneous documents as minutes of debriefing meetings and letters to and from advisers.  

20	There was evidence given by one of the Applicants that a pro forma document had been completed by her and possibly the other two, in relation to the phone calls.  There was also reference made by that witness, Ms Murphy, to internal investigations being carried out by the Respondent.  However, there was no documentation before the Tribunal in relation to any of those internal investigations, and it was for the Appellants to seek discovery if they wished to place those documents before the Tribunal.  

21	We do not regard the Tribunal’s failure to mention the questionnaire as relevant to the determination which they came to in subparagraph 6(d) for this reason. If one reads that paragraph as a whole, they were clearly referring to the absence of contemporaneous documentation in relation to the actions taken by the prison service and their staff.  The questionnaire only went to confirming that the telephone calls had been confirmed in writing by the Applicants and we cannot see that the failure to mention that particular document rendered the conclusions that the Tribunal came to generally on contemporaneous documents as incorrect.  

22	However, in any event, these issues can now be looked at afresh and any appropriate Orders sought from the Tribunal before any fresh hearing in relation to discretion.  We appreciate that these matters are now becoming lengthy and protracted and it has been said that it is by no means clear what amounts, if any, the Applicants will eventually achieve, but at this stage, all we can do is to remit the matter back for the issue of discretion to be considered in the light of the indications we have given as to the appropriate date of assessment.  Thus we will allow the appeal for the reasons that we have stated.