Appeal No.	 EAT/121/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 May 1999

Before
THE HONOURABLE MR JUSTICE LINDSAY
MR J C SHRIGLEY
MR P M SMITH

MRS W O MARSTON	APPELLANT

HALTON BOROUGH COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR D McILROY
(of Counsel)
Instructed by:
Byrne Fordsham & Co
1-3 Deacon Road
Widnes
Cheshire
WA8 6EB	

	MR JUSTICE LINDSAY:     We have before us by way of a preliminary hearing the appeal of Mrs Winifred Marston in the matter Marston against Halton Borough Council.  

	On 5 August 1998 the Employment Tribunal received Mrs Marston’s IT1 claiming sex discrimination.  It is not altogether easy looking at that IT1 to put a date on the matters of which complaint was made but it would seem that the last event relied upon was Mrs Marston’s application for a post being declined and the job instead being awarded to a Mr Patino and her being obliged thereafter to report to Mr Patino.  She reported to Mr Patino from March 1998 but Mr McIlroy, who has appeared before us on behalf of Mrs Marston, suggests 2 February as the date from which time starts running to measure the statutory period within which a complaint of this kind had to be made.  So time started running on 2 February and, on the face of things, therefore, would run out on 1 May.  

	The Tribunal held that Mrs Marston was conscious from the outset of the existence of a time bar and indeed, that appears in her own IT1.  What she says, on our page 19, is that:

“I accept that the last specific incident of a discriminatory nature may be out of time but will submit that it was not reasonably practicable for me to submit my application in time as I have recently suffered from a brain haemorrhage and had to avoid the kind of stress this matter will cause until I was capable of dealing with it.”

	The test for exclusion under section 76 (5) is not, in fact, reasonable practicability, but the just and equitable test but plainly impracticability can be an important factor in the course of deciding whether it is right, just and equitable to consider a claim out of time.  Having received that IT1 the Council, the employer, took the time bar point.  What they said in their IT3 on our page 20 is this:

“The purpose of this letter is to request a Preliminary Hearing on your jurisdiction since the incidents of discrimination which the Applicant has indicated she intends to rely upon, all allegedly occurred more than three months prior to the submission of her complaint [and then there is a reference to section 76(1)].
The Applicant’s explanation that it was not reasonably practicable for her to submit her application in time because she had suffered from a brain haemorrhage is contested.  She returned to work on 24th February 1998 and has been undertaking her duties in her post as Domestic Services Manager since then.”

	So thus it was from the outset that that robust and simple point - that if she was fit enough to work from 24 February as a Domestic Services Manager, then surely she would have been fit enough to lodge an IT1 - was indicated as a point that would be taken by the Council.  A preliminary hearing was arranged to deal with the time bar.  The hearing was on 30 September 1998 and the decision was promulgated on 5 November and it was:

“The unanimous decision of the Tribunal is that:-
(i)    the application was not presented to the Tribunal before the end of the period of 3 months beginning when the act complained of was done.
(ii)   it is not just and equitable that the Tribunal should consider the complaint.
(iii)  accordingly, it is dismissed.”

	There had been an oral decision given on 30 September and then a written decision on 2 October and Extended Reasons were given on the date I have mentioned, 5 November.  The decision, as so far read, appears to address precisely the questions which were properly to be addressed on such an occasion.  Section 76(5) confers a discretion (“the Tribunal may nevertheless consider” and there is a reference to “if in all the circumstances of the case it considers it just and equitable to do so”).  That discretion has, of course, to be judicially exercised but within that very broad boundary the discretion is completely unfettered.  It is, moreover, for the parties to present evidence of the circumstances of the case which they wish to have considered.  The Tribunal has to make up its mind on the material laid in front of it on the day.  It is quite plain that Mrs Marston later recognised that there were features which she wished she had presented and wished she had invited the Tribunal to take into consideration.  She says that in correspondence, but the Tribunal cannot be faulted for failing to consider material which was not laid in front of them on the day.

	In order to overturn a discretion as unfettered and as broad as this one is the Appellant has to show that the Tribunal took into account matters it should not have done, or failed to take into account matters that it should have done, or otherwise that it concluded in some manner that no Employment Tribunal, properly instructing itself, could have done.  The particular weight to be given to particular considerations is a matter for the Tribunal.  We now look at the decision of the Tribunal with that in mind.

	The Tribunal heard Mrs Marston on her own behalf; they heard a Mrs Zanin, who is an Assistant Cleaning Manager, and they had documents which included medical material put in front of them and they made a number of important conclusions.  Thus, in their Extended Reasons:

“(v)     On 2 February 1998 she [Mrs Marston] became aware that she had not been successful but that the successful applicant had been a Mr Patino.  She told us that she believed as early as that date that the failure to appoint her was an act of sex discrimination.  She was very upset.”
(vi)    Mrs Marston returned to work in late February and in either March or April she consulted her trade union about her grievance.  The convenor to whom she spoke told her that they would get together and discuss it but in about April he was sacked.  She told us that it was her intention that he would take the matter on for her.
(vii)   At the beginning of June Mrs Marston consulted a Solicitor.  The sole purpose of that consultation was with a view to bringing a claim of sex discrimination.
(viii)  On the recommendation of the solicitor, Mrs Marston saw an employment advisor, Mr Farrow.  It appears that meeting took place in late July.  The Originating Application was presented on 5 August.
7.  Under Section 76 of the Sex Discrimination Act 1975, an Industrial Tribunal shall not consider a complaint unless it is presented before the end of the period of 3 months beginning when the act complained of was done.  In this case that period expired on 1st May 1998.”

	So that plainly the complaint was out of time and the Tribunal then turned to considering subsection (5) of section 76 and they properly summarised it.  What they said in paragraph 8 is this:

“However, Section 76 goes on to provide that the Tribunal may nevertheless consider any such complaint which is out of time if, in all the circumstances of the case, it considers it is just and equitable to do so.”

	The Employment Tribunal then summarised Mrs Marston’s case, as it was put to them on that day, and they did that in paragraph 9:

“Mrs Marston’s submission was simply this:  she had been very seriously ill in 1997.  Despite the fact that she had sought advice in connection with a claim, she did not wish to take it forward until she felt mentally strong enough.  She told us that it was only towards the end of May, when she had agreed terms with the Council upon which she would leave their employment, that that stage had been reached.”

	Unfortunately, so far as concerns Mrs Marston’s position, that case was not believed.  What the Tribunal said in their paragraph 10 was this:

“We rejected that submission and that evidence.  We believed that it was her intention at a very early stage to take proceedings and that if her trade union representative had not left his employment or indeed if the solicitor she had seen in June had taken the matter forward at that time, then the Originating Application would have been presented a good deal earlier than in fact it was.  In short, we rejected completely the sole basis upon which she sought to explain the delay.”

	The Tribunal, of course, saw and heard the witnesses and it is the Tribunal that is the sole judge of fact.  How then does Mr McIlroy, on behalf of Mrs Marston, attack the conclusions?  We have an excellent skeleton from Mr McIlroy that makes a number of points.  Under the heading at paragraph 6:  “The tribunal took into account facts which they ought not to have done”, the first ground is the evidence of Mrs Zanin:

“The Tribunal allowed Mrs Zanin to give expert evidence as to the state of the Applicant’s health, matters about which she was not qualified to give an opinion.”

	There is not a shred of indication in the Tribunal’s reasoning that they relied on Mrs Zanin for anything medical.  It transpires, from what Mr McIlroy has told us this morning, that Mrs Zanin was a colleague at work of Mrs Marston and indicated that when she came back to work not only was she, as it seemed, able to do her own job but was, indeed, able to take on duties that otherwise might not have fallen within the ordinary description of her job.  That, it seems to us, is not medical evidence, but it obviously is practical evidence that has some bearing on the nature of Mrs Marston’s ability to present an IT1 within the three months or any other period.  It was Mrs Marston’s own case that she had had a brain haemorrhage in July 1997, but we do not think there was any evidence about that and it was also clear that she returned to work in late February 1998.  We cannot conclude that the evidence of Mrs Zanin was wrongly taken into account as being medical evidence about which she was not qualified to give an opinion.  

	Next, there is a point that Mr McIlroy has not advanced this morning but which is there in his skeleton, the threat by the Council Solicitor to appeal immediately if the case was not thrown out.  There is nothing whatsoever in the Tribunal’s reasoning to suggest that any weight at all was given, or any notice taken, of any threat on behalf of the Council Solicitor and one would not expect a Tribunal to attach any weight to a thing such as that and there is no indication that they did.

	Next, a point that is relied upon this morning:  “The Tribunal failed to take into account relevant facts:  the medical evidence”.  The medical evidence, to be relevant, needed especially to relate to the period at and after February 1998 and down to the point at which Mrs Marston lodged her IT1 on 5 August.  Mr McIlroy’s skeleton has carefully prepared for us extracts from the medical evidence which was laid before the Tribunal in the way of documents.  Doctors did not give evidence but there are written reports and indications that were in front of the Tribunal.  Mr McIlroy’s skeleton discloses medical evidence relating to November 1997 and January 1998 but that, of itself, was not material to the period which, as I say, began in February 1998.  There is then evidence as to 13 February 1998 and 27 April 1998, but not mentioning or suggesting any inability to present an IT1 or any mental state that precluded or made difficulties in relation to the presentation of an IT1.  There is a medical condition indicated as at 28 September 1998 but that, of course, is after the expiry of the material period, but it does speak to difficulties in July 1998 and speaks also of stress.  Although it is shown that a Consultant Neurosurgeon felt that possibly (and it is only “possibly”) Mrs Marston’s symptoms could have been stress related, the symptoms which, to judge from the extract, were being referred to, were “numbness initially affecting the right side of her face and the latter episodes her right hand and short-lasting difficulties as to loss of speech”.  But during this period, as we mentioned earlier, she was fully at work and it is hard to see that that medical evidence provided a good foundation for a case that she was unable to present or had substantial difficulties in the presentation of an IT1.

	We do not say that the Employment Tribunal could not, on that evidence, have concluded that it was just and equitable to consider her claim even though it was out of time.  It may, indeed, have been entirely reasonable to extend time on that evidence, but that is not the question before us.  If, instead, we ask ourselves what is the right question, namely on the evidence was the case such that no Employment Tribunal could have concluded as this one did, then, so far as concerns this reliance upon medical evidence, we cannot say that that is the case.

	Mr McIlroy then turned, in his skeleton and at our invitation in oral address, to “The Inequality of Inconvenience”, as it was described.  What he says in his skeleton is:

“The tribunal failed to take sufficient account of their finding in paragraph 11 of their reasons that there was no evidence of any prejudice to the Council if the proceedings were allowed to go ahead, whereas the Applicant / Appellant was severely prejudiced by their refusal to allow the proceedings to do so.”

	The difficulty there is that manifestly the Tribunal had considered the point.  What they say in their paragraphs 11 and 12 is this:

“11.  It was not suggested on behalf of the Council that any prejudice would be suffered by it if the proceedings were allowed to go ahead.  Clearly, the applicant is severely prejudiced by our refusal to allow them to do so, since she cannot bring her claim.
12.  Notwithstanding that ‘inequality of inconvenience’, we considered that it was not just and equitable for the claim to proceed. ...”

	The point that has vexed us is this.  If it was not suggested on behalf of the Council that any prejudice would be suffered by it if the proceedings were allowed to go ahead, then on the one hand one has (putting it into the balance) zero prejudice.  On the other hand, if it is right (and plainly it was) that the Applicant would be prejudiced by a refusal for the case to be considered, one has what one might call 100 per cent prejudice.  Can it be that, on a balance between zero and 100 per cent, it can be right in law for the Tribunal to conclude, as this one did, that it was not just and equitable for the claim to proceed?  Put another way round, perhaps a more accurate way of putting it, is it necessarily an error of law, in a 100 per cent to zero per cent case, not to have allowed the matter to proceed?  This has troubled us, but we conclude that we cannot describe it as an error of law, even in a zero to a 100 per cent case, to conclude that it is not just and equitable for a claim to proceed.  The particular weight to be given to considerations in the exercise of a discretion is, as we have mentioned, very much a matter that is the province of the Tribunal itself, and it has the great advantage of having heard the case and having directly seen the witnesses and heard their evidence.  Mrs Marston’s attempt to link delay with the medical position failed.  The Tribunal held that it had been her intention from an early stage to take proceedings.  Her claim that she did not wish to proceed until mentally strong enough was disbelieved.  They saw and heard her on the day.  We do not feel able to say that that was not a permissible option or was a conclusion to which no Tribunal, reasonably directing itself, could have come.  Once the reason for the delay was disbelieved, very little was left in her favour, apart from the so-called “inequality of inconvenience” which we have been unable to describe as representing some error of law.

	The Tribunal concluded:

“Since we disbelieved the applicant’s own version of events, it followed that she had given no credible explanation for the delay.  Having concluded that there was, as far as we could discover, no reason for the delay, we considered that, despite the lack of prejudice to the respondents, this was not a case that ought to go forward.”

	That is not an illogical approach.  Many Tribunals might have concluded otherwise than this one did.  We might have done ourselves, but that is not to say that there is an error of law detectable in their exercise of the discretion in this particular case.  We are, in fact, unable to detect any error of law properly-so-called, and accordingly we must dismiss the appeal even at this interlocutory stage.