Appeal No. EAT/75/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 9 December 1993
	Judgment delivered on 3 March 1994

	Before

	HIS HONOUR JUDGE B HARGROVE OBE QC

	MR R TODD

	MISS D WHITTINGHAM

MRS H PAGET	APPELLANT

ESSEX COUNTY COUNCIL	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J HORAN
(REPRESENTATIVE)
Free Representation Unit
49/51 Bedford Row
London WC1R 4LR

For the Respondents	MR D J MOORE
(OF COUNSEL)
Chief Executive
County Hall
Chelmsford
Essex CM1 1LX

	JUDGE HARGROVE:  On 18 November 1992 the Industrial Tribunal decided that there was no jurisdiction for them to hear the complaint by the Appellant under the Sex Discrimination Act 1975 that:

		"Mrs Pye used information pertinent to my need for the statutory services of my employing authority to harass me both in relation to my employment and in relation to my family situation."

	On 16 June 1992 the Chairman of the Tribunal had directed that there should be preliminary hearing before a full Tribunal but the question which was decided upon at the interlocutory hearing was not the question which was answered precisely by the Tribunal.  At the interlocutory hearing there was the addition of the sentence:

		"Her judgments were biased, unsound and discriminatory".

	The interlocutory hearing was sought by the Respondents because they were bewildered in respect of the allegations they had to meet.

	To appreciate the problem which faced both the Respondents and Tribunal it is necessary to set out a little of the history.  The Appellant was employed by the Respondents as a senior social worker from about 1981 to 1991.  In 1987 her daughter became ill suffering from myalgic encephalitis.  It seems that the Appellant began to devote time to looking after her daughter and in due course she also became ill.  Differences arose between the Appellant and her superiors in relation to two main issues.  The first was whether she should return to work, receive sick pay, or be granted compassionate leave.  Rightly or wrongly the Appellant felt that she was harassed by her superiors in relation to her work and when she applied to be granted various means of assistance for herself and her daughter from the social services, she regarded the position as being highly unsatisfactory.  These proceedings were therefore launched and the form IT.1 complains of sex discrimination, failure to provide equal pay, breach of contract, unlawful withholding of wages, unfair dismissal, unfair treatment as a user of the employer's statutory services, victimisation.  That was supported by 10 closely typed pages which purported to give details of the complaints.  That document is diffuse in the extreme, follows no logical order, appears to be repetitive at points, fails to identify any issues precisely, and gives the impression of having been composed a paragraph at a time without reference to what has gone before.  We record these matters not by way of complaint, far less by way of blame attaching to the Appellant.  The Appellant was at the time in very poor health and we are informed that this document was composed only with the assistance of the Appellant's husband.  The objective of setting out these matters is to indicate the considerable complexity facing the Respondents and also facing the Industrial Tribunal.

	The Tribunal faced yet a further disability.  At the hearing of the preliminary issue the Appellant appeared in person.  We have no doubt that she was given every assistance by the Tribunal but it is clear upon this issue the Appellant was able to give the Tribunal little help in return.  The Tribunal in setting out some of the matters which the Appellant was complaining stated as follows:

		"Mrs Pye had suggested in 1987 that the Applicant, who was also in poor health, take compassionate leave to care for her daughter in respect of whom the services had initially been requested.  She would not have made this suggestion to a male colleague and this was discrimination on the grounds of sex."

	The Tribunal further stated at paragraph 5:

		"The jurisdiction under the Sex Discrimination Act 1975 is limited to cases of discrimination in the employment field.  Where a social worker such as the Applicant who has a superior knowledge of the services that are available makes demands for social services which are available to the public at large and does not have her demands met in full, it is open to her to complain that she has been subjected to discrimination in the course of her employment.  This is especially so if the explanation is conveyed to her by her line manager who is also an officer of the local authority.  These services are not however being regulated by the contract of employment and the services are being provided both to employees and members of the public.  The Respondent must be allowed to deal with demands on its services as it sees fit and if the Applicant is dissatisfied with them she is entitled to pursue her complaints with the local government ombudsman as she is already doing."

	While it is plain that one of the complaints being made by the Appellant was that she was not being adequately provided with social services assistance for herself and her daughter we consider it is also clear that she was saying, as the Tribunal indicated at paragraph 3, that she considered that her superior, Mrs Pye, was endeavouring to coerce her into taking compassionate leave which was a status where the Respondents would have wide discretion.  It may well be that in fact that discretion would have been exercised entirely in favour of the Appellant.  Indeed it has been urged upon us that it could not possibly be that such a status would in any way be detrimental to the Appellant.

	While we consider that it is a difficult argument we find that as obliged to concede that if a person is coerced into taking on a status which places them in a position where the other party can exercise complete discretion and where there is no degree of trust and confidence between the parties, it is possible to argue that this will be subjecting the person placed in that position to a detriment as set forth in section 6(2)(b) of the Sex Discrimination Act 1975 always providing that it can be shown that a man in the same position would not be so treated.

	It may be that the omission of a final sentence from the question posed at the interlocutory hearing may have hindered the Tribunal in its consideration and it is hardly surprising in the welter of matters which were placed before the Tribunal in the IT.1 that this aspect has become obscured.

	We have had the good fortune to be more advantageously placed than the Industrial Tribunal since Counsel has appeared before us on behalf of the Appellant.  Mr Horan from the Free Representation Unit has performed a valuable service to both his client and the Court by clarifying matters and considerably reducing the time this appeal would otherwise have taken.  

	We accordingly find that the Tribunal has jurisdiction to entertain the complaint in the terms set forth in the interlocutory hearing on 16 June 1991 and this appeal is accordingly allowed.