Appeal No.	 EAT/383/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 July 1999

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR J C SHRIGLEY
LORD GLADWIN OF CLEE CBE JP

MR D R GOULD	APPELLANT

LAMBROOK HAILEYBURY SCHOOL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON

	MR JUSTICE MORISON:	 The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which Mr Gould wishes to make against the decision of an Employment Tribunal.  The decision was of an interlocutory nature and sent to the parties on 12 January 1999 following a hearing on Friday 8 January.  

1	The only matter which arises on this appeal is in relation to paragraph 2 of the Tribunal’s interlocutory order as amplified by paragraph 2 of the reasons for their decision which is at page 9 of our file.  I should make it plain that this is an appeal under the EAT/383/99/ED, it being clear as a result of discussions with Mr Gould that the appeal EAT/384/99 is no longer being pursued.  

2	The application to add a complaint of victimisation is one which might have an impact on the proceedings which have been deferred, pending this appeal, and we can see arguments either way as to whether the Tribunal were right or not to have arrived at the decision that they did.  It would be wrong for us, as this is an ex-parte hearing, to say any more about the merits of the appeal at this time, but we are satisfied that there is an arguable point of law to be raised against the Tribunal’s decision.  

3	Apart from anything else, Mr Gould wishes to say that he was victimised in terms of the reference or references which the Respondents had been giving him following the termination of his employment.  In the light of the recent decision in Coote v Granada Hospitality Ltd it is now clear that a complaint in relation to activities post employment, may give rise to a claim under section 6(2)(c) of the Sex Discrimination Act 1975.  That would not have been known to the Employment Tribunal when the decision was given.

4	Furthermore, Mr Gould seeks to amend his complaint to say that what happened during the course of his employment can be attributed to the fact that he had made a complaint of unlawful discrimination on grounds of sex in 1993, so he says, and that he was complaining shortly before his employment terminated that he was being bullied.  And he says that in itself is an indication that he was complaining of being victimised, although the word victimised was not actually used. 

5	It seems to us to be arguable therefore, that the Tribunal should have allowed this amendment on the basis, as Mr Gould put it forward, that they are going to have to deal with his sex discrimination act complaint and this is simply a variation of his complaint of direct discrimination.  

6	It is important that this appeal is heard as a matter of urgency, because until it has been determined the Employment Tribunal has indicated that it will not fix a date for hearing of the substantive claim.  Having regard to the circumstances, it is obvious that Mr Gould’s complaints, whether they include victimisation or not, should be put before an Employment Tribunal at the earliest possible moment that can fairly be fixed.  That is not likely to be before September or October, but in order to enable an early date to be found, it is essential therefore that the Employment Appeal Tribunal should hear and determine this appeal by the end of July of this year.  

7	I would indicate that it would be the President’s preference to retain this matter to himself and that the last week of July might be an appropriate time; fairly early in the morning so that the rest of his day is not interfered with.  Accordingly, this matter will go for a full hearing in accordance with the terms of this judgment and I repeat what I said earlier on, that by giving leave for this to proceed to a full hearing, the Employment Appeal Tribunal is not giving any indication one way or the other as to how the appeal ultimately will be determined.