Appeal No. EAT/1280/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 November 1997

Before
THE HONOURABLE MR JUSTICE MORISON (P)
(IN CHAMBERS)

MS M GREEN	APPELLANT

1) HARMONY HEALTHCARE PLC T/A	RESPONDENTS
    HUNTERCOMBE HALL NURSING HOME
2) SHAW TRUST

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS DREW
(Of Counsel)
Oxford Employment Rights Service
Barton Neighbourhood Centre
Underhill Circus
Oxford
OX3  9LS	
For the Respondents	MRS M E JEFFERSON
(Representative)
Peninsula Business Services Ltd
Stamford House
361-365 Chapel Street
Manchester
M3  5JY	

	MR JUSTICE MORISON (PRESIDENT):   This is an appeal against an Interlocutory decision of an Industrial Tribunal Chairman following a hearing on 5 November 1997 at Reading.  Because it is an Interlocutory decision, it is to be recognised that the Chairman is to be accorded a wide margin of appreciation in the decision that he arrives at because he is exercising a discretion.  

	It seems to me that I ought only to interfere with the exercise by him of his discretion if I am satisfied that he demonstrably took a wrong approach to the matter, in the sense of either taking into account facts and matters which he ought not to have done or failed to take into account facts and matters which he ought to have done and I include matters such as prejudice.  Alternatively, if one could describe the decision that he arrived at as so unreasonable as to be perverse, then again this Court will intervene.

	In this case, Ms Green presented, on 18 February 1992, to an Industrial Tribunal an application making three complaints.  First was unfair dismissal; second was breach of contract and in brackets she has put the Disability Discrimination Act, it being her case that she was given less notice than that to which she was entitled in an attempt to dismiss her from employment before the Disability Discrimination Act came into force; and third, a claim under Section 92 of the Employment Rights Act relating to written reasons for dismissal.

	Ms Green is registered disabled.  She had been employed as a laundry assistant at Huntercombe Hall Nursing Home from 1990 until the effective date of termination of her employment at the end of November 1996.  

	Ms Green’s complaint therefore was presented against Huntercombe Hall Nursing Home but, in addition, she has brought a complaint against the Shaw Trust because she was given work at the Nursing Home as a result of a work placement scheme operated by West Berkshire.  During the course of her employment she was given extra assistance by the Shaw Trust.  It will be a matter for the Industrial Tribunal to investigate their position and status in the matters to which the complaint relates.

	The employers put in their IT3 on 6 March 1997 indicating that the reason for her dismissal was due to the way she was performing her duties and to a particular personal problem which they refer to in their IT3.

	During the course of the discovery process, very properly the Respondents disclosed a memorandum which was completed by the Matron at the Nursing Home.  That disclosure was made on 14 July 1997.  The memorandum apparently dated 1 November 1996 records the fact that there had been for a period between September 1995 and November 1996, a number of incidents which had been reported to her by nursing staff, concerning what she describes as a male resident’s inappropriate advances to the Applicant.

	That note also records that in Matron’s view the Applicant was not visibly distressed on the occasions where she personally had witnessed such contacts and that she conveyed anxiety only when the matter was specifically raised with her.  Accordingly from that date it became clear to those who were supporting Ms Green’s case, although not officially on the record as representatives, that there might be a possibility that she was dismissed in connection with the matters referred to in Matron’s note.  

	It therefore also occurred to them that if the matters referred to in that note had, and I use the word colloquially “infected” the decision to dismiss the Applicant, she might have a claim under the Sex Discrimination Act not because the employers were failing to look after her interests during her employment and had discriminated against her themselves through the resident who was allegedly making these advances, but rather because the decision to dismiss her was one which was to spare the Respondents’ embarrassment in relation to these incidents, thus attracting, so she submits, the benefit of the provisions of the Sex Discrimination Act.

	It is not the function of the Employment Appeal Tribunal at this stage, to say anything about the merits of the complaint, which she now wishes to make under Section 6 of the Sex Discrimination Act.  But what she wished to do was to include such a claim within her IT1.  If she had applied very promptly after 14 July, it seems to me most unlikely that any Tribunal Chairman properly directing himself would have disallowed the application for leave to amend.

	Any Tribunal properly directing itself on the facts of this case, would have appreciated that at the unfair dismissal hearing the question as to the reason for the dismissal of the Applicant was to be seriously in issue.  Accordingly it was inevitable that during the course of the employer’s case the note which Matron made would feature in the evidence and submissions of the parties.  In other words, the Tribunal would be required to say whether the matters raised in that note did influence the decision to dismiss Ms Green or not.  

	Accordingly, if the Applicant is right that if the matters in that note did influence the decision to dismiss, or formed the basis of the decision to dismiss, as the case might be and there was a claim under the Sex Discrimination Act, every Chairman would have permitted the Applicant to raise a case promptly made after the note was disclosed, even though it was outside the time limit, on the basis that those matters were bound to be canvassed in any event and it would be manifestly unjust to deprive the Applicant of the opportunity of a finding under the Sex Discrimination Act if the facts were found in a particular way in her favour.

	The question, as it seems to me, in this case, largely relates to the time that took place between the discovery of this material on 14 July and the notifications to the Industrial Tribunal on 5 September of the application for leave to amend.

	In considering the discretion which is conferred on Industrial Tribunals under Section 76(5) of the Sex Discrimination Act 1975, I respectfully agree with the judgment of a predecessor of mine, Mr Justice Phillips, in the case of Hutchison v Westward Television Ltd [1977] ICR 279 at page 282.  (I am grateful to Mrs Jefferson, Employment Consultant, for referring me to this authority.)  The EAT said on that occasion, by reference to the words in Section 76(5):
“..... Those are very wide words.  They entitle the industrial tribunal to take into account anything which it judges to be relevant.  We doubt whether industrial tribunals will get much assistance in exercising that jurisdiction by being referred to cases decided on other tests under other statutes.  We do not go so far as to say that they are always and in all circumstances irrelevant, but we would deprecate these very simple, wide words becoming encrusted by the barnacles of authority.  The industrial tribunal is to do what it thinks is fair in the circumstances.”

	That said, it seems to me, that it is likely that where an application for leave to amend is made under these wide words, there may well be a consideration of the same sort of matters as are referred to in the Limitation Acts; for example: the reason for the delay, the extent of the delay, the promptness of the application made to the Tribunal after the discovery of the facts relied on, and prejudice to either party.

	It seems to me that, with great respect to the Industrial Tribunal Chairman in this case, he has not taken into account the question of prejudice.  He has referred to what he says is the substantial delay of nearly two months in presenting the application; he is referring to the period from 14 July to 5 September.  I have had the advantage which he did not have, of reading the Affidavit in this case, which sets out quite clearly what was done during that period.  It seems to me that it would have been inappropriate to make any reference to sexual harassment without the express instructions of the Applicant, having regard to her disability and having regard, in particular, to the words in Matron’s note about her displaying anxiety only when confronted with these matters.

	It seems to me that if Ms Green was anxious about discussing these matters, it would not have been correct for advisors to have raised them without her specific authority.  It seemed to me that the way they set about obtaining instructions from her, was entirely sensible, in the sense that she was to be seen personally and in the company of a social worker who looks after her.  In that context, it seems to me, the Industrial Tribunal Chairman was over harsh in the way he looked at the delay, having regard to the fact that we all know that August is likely to be a holiday month and it is sometimes difficult to arrange meetings.  

	It seems to me that the real objection is that the Chairman has not weighed the respective injustice to the parties: on the one hand the injustice to the Applicant if she is not given leave to amend; on the other, the injustice to the Respondents if she were allowed to amend.  Having regard to the fact that the issues which underlay this note are inevitably going to be raised at the unfair dismissal hearing, even if the amendment was not made, it is, it seems to me, very clear, that no prejudice will be sustained to the Respondents by reason of allowing the amendment, save that they will obviously then be exposed to a claim which they had not previously been exposed to.  If the facts merit such a claim being made, it does not seem to me that that is a prejudice upon which they can properly rely.  If the facts do not merit such a claim, then they will not be at risk in terms of liability.  On the other hand, if the Applicant is not allowed to make this amendment, the Industrial Tribunal might find itself in a most uncomfortable position at the hearing, if, after investigation of the true reason for dismissal, the Tribunal concluded that it was an unlawful reason falling within the Sex Discrimination Act but had, by refusing the amendment disabled themselves from giving effect to their finding.  That would be a most unfortunate situation.

	I make no comment about the way the facts will be decided in this case.  Having regard to the evidence and the arguments presented to me, I am satisfied, therefore, that the only just decision that the Tribunal Chairman should have made on this occasion, was to permit the amendment, since it is a case where the balance of justice firmly falls in favour of granting it.  Therefore, this is one of those rare cases where the EAT feel entitled to interfere with the exercise of a broad discretion, on the basis of either or both, that the Industrial Tribunal Chairman failed to take into account matters he should have taken into account, or secondly, arrived at a decision which was perverse.  The appeal is allowed.