Appeal No. EAT/852/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 3 February 1993

	Before

	THE HONOURABLE MR JUSTICE MAY

	MR A C BLYGHTON

	MRS M E SUNDERLAND JP

WILKIN CHAPMAN	APPELLANTS

MRS B A COLLINS	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR J BOWERS
	(OF COUNSEL)
Wilkin Chapman
PO Box 16
Town Hall Square
Grimsby
DN3 1HE

For the Respondent	MR D A COLLINS
	(REPRESENTATIVE)

	MR JUSTICE MAY:  This is a curious case.  On 11 July 1989 the Applicant Mrs Collins was employed by the Respondents, Wilkin Chapman, a firm of solicitors, and nearly but not quite two years later she claims that on 6 June 1991 she was dismissed.  Arising out of that dismissal she has brought two claims before industrial tribunals, the second of which is the subject of this appeal by the Respondents.

	The claim arises from the fact that apparently the Respondents on 1 October 1990 appointed another person to do what Mrs Collins claims was the same job as she was performing.  That person was, so we understand, believed at the time to be a man.  Mrs Collins, to put it broadly, complained that she was being unfairly treated in the matter at least of her pay because this person was paid more than she was for what she says was the same job.  After she was dismissed she brought proceedings quickly in the Industrial Tribunal, presenting her application on 12 June 1991.  Those proceedings were the first of the two sets of proceedings with which this appeal is concerned.

	In those first proceedings she characterised her complaint as being unfair dismissal and equal pay for equal work.  Suffice to say shortly that the unfair dismissal claim failed because she had not been employed by the Respondents for a full two year period.  The equal pay claim was complicated by the fact that, after she had been dismissed, it appeared that the person with whom she wished her pay to be compared, although believed to be a man, was in fact biologically a woman.  On 8 January 1992, the Industrial Tribunal not only dealt with her claim for unfair dismissal in the way that we have indicated but also decided that her claim for equal pay failed because she had no comparator of the opposite sex.  The matter did not end there because that Industrial Tribunal conceived the idea that she might on these curious facts have a claim under the Sex Discrimination Act and in their Reasons for the decision given on 8 January 1992 they said this:

"However, another matter arose during the relatively amicable discussions in Tribunal.  Was in reality the applicant in (although badly phrased) an application, making an allegation of direct sex discrimination under Section 1(1)(a) of the Sex Discrimination Act of 1975?  Was the applicant saying

"here I am, working at Wilkin & Chapman.  I am being paid less than a person who was believed to be a man, who is doing the same job as me.  I am, therefore by inference, being directly discriminated against by reason of the fact that I am female."

The Tribunal considered what to do in those circumstances and at paragraph 9 of their Reasons said this:

"We could allow a very late amendment to the originating application.  We do not think that is appropriate.  We take on board what Mr Buckle has told us, that it is unusual to allow such a basic amendment at such a late stage.  We also think that the amendment is so basic, that it is in fact bringing in a new application.  We do not allow an amendment.  However, what we will allow, having dismissed this originating application, is that if the applicant undertakes to issue an originating application to this Tribunal itemising the complaints of direct sex discrimination, then we will, having heard the arguments, consider allowing the application to be heard by the Tribunal out of time."

	It is pointed out on behalf of the Appellants before this Tribunal that the apparent granting of leave to issue an originating application was something which the first tribunal had no power to do and that may well be right.  However, it seems to us that that does not take the matter very much further because, being granted leave or not, Mrs Collins straight away after that hearing launched her second application.  She presented it within two days of the Reasons being given for dismissing her first application.

	Her second application characterised her complaint as direct sex discrimination and the details of that complaint read as follows:

"I claim direct sex discrimination under S.1(1)(a) of the Act.

My employer offered terms and conditions to a newly recruited employee, which were applied in practice, and were to my detriment, when considering that person was employed to carry out the same functions as myself, using the same equipment in the same office.

I was further treated unfavourably by way of discrimination on 6th June 1991"

	Mrs Collins was ordered to give Particulars of those details and the Particulars which were provided on 3 February 1992 including the following:

"The actions by the Respondents that brought about that detriment are that employers Wilkin Chapman offered terms and conditions to a newly recruited employee who, at the time of commencement of employment, was perceived to be male.  These terms, which were applied in practice, were a clear breach of the Equal Pay Act... Furthermore the Applicant was deliberately not afforded access or opportunity to discuss or question her rights under Equal Pay or Discrimination on the occasions that she tried to raise the matter."

That appears to have been Particulars relating to the complaint under S1(1)(a) of the Sex Discrimination Act.

	The application does not explicitly say so, but it is clear that the complaint that Mrs Collins was treated unfavourably by way of discrimination on 6 June 1991, was elaborated in terms which could be directed towards section 4(1)(d) of the Sex Discrimination Act 1975.  What the Particulars said were this:

"The Applicant's unfavourable treatment on 6 June 1991 amounted to that of discrimination in that she was subjected to victimisation for having questioned previously the actions of the Respondents in recruiting a new employee which would and did give rise to a subsequent claim under equal pay.  Victimisation took the form of instant dismissal on 6 June 1991."

	The second application was on the face of it out of time and in that respect we refer to section 76 of the Sex Discrimination Act which provides in subsection (1):

"An industrial tribunal shall not consider a complaint under section 63 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done."

	Mr Bowers has submitted that in relation at least to the first of the two grounds of complaint the event complained of was the engagement of this other person, which took place in October 1990, and he therefore points out that the delay was very long.  It appears that the second ground of complaint is directed towards Mrs Collins' dismissal on 6 June 1991 and that is considerably closer to 10 January 1992 but nevertheless outside the three month period.  

	Section 76(5) of the Sex Discrimination Act provides:

"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 question therefore arose whether an extension of time should in this case be granted.  A hearing was designated for that purpose and the Regional Office of Industrial Tribunals in Nottingham wrote to the Respondents on 14 October 1992 referring to the hearing that was going to take place on 22 October 1992 and saying that that hearing would deal with two issues.

	The first issue was whether it is just and equitable for the claim to be heard, even though it is out of time (that is to say the question of whether an extension of time should be granted or not).  The second issue was whether there is a jurisdiction under the Sex Discrimination Act.  As to that the Respondents' position was and is that these claims under the Sex Discrimination Act are bound to fail as a matter of law and that accordingly they should be struck out.  That in substance we understand is what was argued before the second Industrial Tribunal on 22 October.  That Tribunal first of all concluded that it was just and equitable to grant an extension of time and secondly concluded that they would not strike the claim out because they considered that findings of fact after evidence should take place first.

	The terms in which that was expressed in the second Tribunal's reasons include at paragraph 10, the following:

"It seems to us that if the other Tribunal had realised that it could have done so it would have added the Sex Discrimination claim.  It did not think it could and did the next best thing by inviting this further application.  In the light of that anyone would think it unjust and inequitable if the applicant were not now able to proceed with the claim."

Paragraph 11:
"We find that it is just and equitable for the applicant's claim to be heard.
Paragraph 12:
"With regard to the second jurisdictional point we could only dismiss it if it could not succeed as, for example, in an unfair dismissal claim an applicant has less than 2 years' continuous service.  One interesting point which was raised was that the "comparator" was assumed to be and was treated as a man.  It seems to us that this is not a case that can be struck out.  Findings of fact will have to be made after hearing evidence."

	Mr Bowers draws our attention to the Industrial Tribunal Rules which are contained in Industrial Tribunals Rules of Procedure Regulations 1985 and in particular to Rule 12 which is under the heading "Miscellaneous Powers of Tribunal".  The relevant part of the rule reads:

(1)  Subject to the provisions of these Rules, a tribunal may regulate its own procedure.

	(2)  A tribunal may, if it thinks fit, -
		...
		(e)subject to the Proviso below, at any stage of the proceedings order to be struck out or amended any originating application or notice of appearance or anything in such application or notice of appearance on the grounds that it is scandalous, frivolous or vexatious.

In submitting that the Industrial Tribunal, should have struck out the claim, Mr Bowers on behalf of the Appellants relies on that rule.

	The way in which that rule should be approached was considered by the Court of Appeal in Ashmore v British Coal Corporation 1990 ICR 485.  On page 494 Lord Justice Stuart-Smith says this:

"The expression "frivolous or vexatious" in rule 12(2)(e) includes applications which are an abuse of process:  see E T Marler Ltd v Robertson [1974] ICR 72.  Whether or not an application should be struck out on this ground is a matter for the discretion of the tribunal, which can only be challenged on the basis that the tribunal has misdirected itself in law or reached a decision to which no reasonable tribunal could come:  see Medallion Holidays Ltd v Birch [1985] ICR 578.

Mr Baker submits that the tribunal did err in law.  He submits that, unless she is estopped by res judicata, issue estoppel or agreement to be bound by the findings in the Thomas case, and it is common ground that she is not, the applicant has an absolute right to have her claim litigated.  He argues that, because the applicant is not estopped for any of those reasons, her claim cannot be frivolous, vexatious or an abuse or process.  I do not agree.  A litigant has a right to have his claim litigated, provided it is not frivolous, vexatious or an abuse of the process.  What may constitute such conduct must depend on all the circumstances of the case; the categories are not closed and considerations of public policy and the interests of justice may be very material."

Mr Bowers accepts by reference to the case of E T Marler Ltd v Robertson [1974] ICR 72, at page 76, that he has to establish that the claim is so manifestly misconceived that it can have no prospect of success.

	The relevant parts of the Sex Discrimination Act 1975 are these.  Section 1(1) reads:

"A person discriminates against a women in any circumstances relevant for the purposes of any provision of this Act if -

(a)on the ground of her sex he treats her less favourably than he treats or would treat a man..."

Section 4(1)(d) reads:

"A person ("the discriminator" discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has -

		(d)alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act or give rise to a claim under the Equal Pay Act 1970 [or proceedings under Part 1 of Schedule 5 to the Social Security Act 1989].

Section 5(3) reads:
"A comparison of the cases of persons of different sex or marital status under section 1(1) or 3(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

	Taking the appeal that is directed towards the Industrial Tribunal's jurisdiction first, Mr Bowers has submitted this morning that the Industrial Tribunal had no jurisdiction to entertain the claim and the decision not to strike it out was perverse.  Central to his argument is the apparently uncontested fact that, whatever may have been believed up to June 1991, the person with whom comparison has been drawn was biologically and in law a woman.   Mr Bowers has cited to us a number of cases, to which it is not necessary to refer, to the effect that in a number of other specific aspects of the law, whatever appearances may be, it is the biological fact of manhood or womanhood that has to be taken when the law is to be applied.  He submits that that is the case for the purpose of the Sex Discrimination Act 1975.

	Basing himself upon that premise, he then argues in short as follows:  that for the purpose of the act and in particular for the purposes of section 1(1)(a) and 4(1)(d), there is in fact in this case no man with whom Mrs Collins can compare her position and that therefore just as her claim under the Equal Pay Act was held to fail for this very reason, so her claim under the Sex Discrimination Act is bound to fail for equivalent reasons.

	Mr Bowers accepts that a Tribunal will only strike out a claim on the ground argued, if it is so manifestly misconceived that it can have no prospect of success.  Looking first at section 1(1)(a), that section as we have indicated provides that a person discriminates against a woman if, on the ground of her sex, he treats her less favourably than he treats or would treat a man.  Mr Bowers submits that that section simply cannot apply if there is no male comparator.  Without in any sense deciding the point it seems to us at least to be arguable that the words "or would treat a man" admit at least of an argument that you do not have to have an actual man for this section to apply and it may be arguable, we say no more than this, that Mrs Collins might establish that she was treated less favourably than her employers would treat a man by reference to how they in fact treated a person who was believed to be a man although later on it turned out that that person was in fact biologically a woman.

	So far as section 4(1)(d) is concerned, the statutory provision is that a person discriminates another person if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has:

"(d)alleged [and we emphasise the word alleged] that the discriminator or any other person has committed an act which ... would amount to a contravention of this Act or give rise to a claim under the Equal Pay Act 1970."

Mr Bowers' contention is that that section simply cannot apply because the facts could never give rise to a claim under the Equal Pay Act 1970 because there was no male comparator.

	We observe however that the words of subsubsection (d) are introduced by the word "alleged" and again it seems to us to be at least arguable, we say no more, that if Mrs Collins had contended that the person she thought to be male was being paid in circumstances which would give rise to a claim under the Equal Pay Act 1970, the fact that subsequently it turned out that this person was not a man, may not detract from the fact that that is what she believed at the time and that is what she was alleging.  Again we emphasise that we are finding no more than that that as we conceive it an arguable construction of the subsubsection.

	In those circumstances we take the unanimous view that this is not a case which is in law so manifestly misconceived that it can have no prospect of success and we accordingly reach the conclusion that the Industrial Tribunal reached the right decision in determining that it will be necessary to hear evidence to find the facts and then to consider whether or not these sections properly construed did or did not apply to those facts.

	We turn to the matter of extension of time.  In the case of Hutchinson v Westward Television Ltd [1977] ICR 279, the late Mr Justice Phillips said this at page 282:

"The formula provided by section 76(5) by which an application to extend time has to be judged is a new one, and it very sensibly gives the industrial tribunal a wide discretion to do what it thinks is just and equitable in the circumstances.  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.

In that connection and going back for a moment to the first point, it is for the tribunal to say how far they think it is necessary to look at the circumstances of the matter complained of.  No doubt they will want to know what it is all about;  they may want to form some fairly rough idea as to whether it is a strong complaint or a weak complaint, and so on.  Certainly it is not required at that stage to try the complaint.

The third thing which we have to say about section 76(5) is this.  Because it is such a wide discretion conferred upon an industrial tribunal, the task which an appellant has in such a case is a heavy one.  Really he must show, if he is to succeed upon appeal, that the industrial tribunal demonstrably took a wrong approach to the matter, or that they took into account facts which they ought not to have done, or that they failed to take into account facts which they should have done, or, as a last resort which is always open upon an appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed tribunal could have reached it."

That emphasises two things.  Firstly that the subsection in question gives a very wide discretion, and secondly that anyone who seeks before the Appeal Tribunal to overturn the exercise of that discretion has a up-hill task.

	What Mr Bowers says in this case is firstly that in two respects the second Industrial Tribunal took into account matters which they should not have taken into account because they were wrong.  The first of those matters appears in paragraph 10 of their Reasons where they said:

"It seems to us that if the other Tribunal had realised that it could have done so it would have added the Sex Discrimination claim."

It did not think it could and did the next best thing by inviting this further application.  It is correctly pointed out that the first tribunal in fact stated that it did have power to allow a very late amendment but that it exercised a discretion not to do so.     

	The second matter to which Mr Bowers refers concerns the relevance of whether Mrs Collins had as it is put "acted on bad legal advice" and in that respect reference is made to paragraph 9 of the Reasons.  It reads:

"Mr Collins said that the County Court claim was made on the basis of bad legal advice."

The submission is that as a matter of authority, and in particular with reference to Trevelyans v Norton [1991] ICR 488, that was an error.  Based upon those two submissions Mr Bowers submits that it is open to this tribunal to open up and review the exercise by the second Industrial Tribunal of their discretion, that we should do so and that for reasons which he argues we should reach the opposite conclusion.  The reasons which he urges upon this Appeal Tribunal are these.

	Firstly (he submits), that Mrs Collins  was fully aware of her rights and the manner in which to claim them at the latest from the date of the presentation of her first Industrial Tribunal application, that date being in June 1991.  Secondly, Mr Bowers submits that in the second application Mrs Collins seeks to raise precisely the same issues as were resolved in favour of the Respondent in the first Industrial Tribunal.  He submits that there must be some finality in litigation in the interests of the public and the private purse.  Thirdly he submits that, having dismissed the first application, it was perverse for the first tribunal to encourage and apparently permit or permit in part a second.  Mr Bowers asks rhetorically - Why should Wilkin Chapman be put to the trouble and expense of a second set of proceedings when in the first proceedings an acknowledged discretion to amend them was decided against Mrs Collins?

	Next Mr Bowers submits that to grant an extension of time would mean that Wilkin Chapman had to attend a fourth hearing on the same matters in dispute between the parties and he further submits that repeated hearings in this case have caused considerable distress to the other person concerned in the case, for example, because of local and national publicity.  He submits in the round that the second tribunal was perverse to allow in January 1992 a claim which should have been presented at the very latest when the first tribunal application was made and he submits that no reasonable Industrial Tribunal taking into account the matters and all the circumstances of the case could properly have exercised its discretion under section 76(5) of the 1975 Act as this second Industrial Tribunal did.   

	Each member of this Appeal Tribunal has considered the exercise of that discretion in the circumstances of this case.  We appreciate that the second Originating Application is a claim which is made some seven months after Mrs Collins was dismissed and that it is, in terms of the three month time limit, considerably out of that time.  We see the force of the arguments which Mr Bowers advances but we are of the unanimous conclusion that not only are there no grounds for suggesting that the exercise by the second Industrial Tribunal of the relevant discretion was perverse but that additionally, if it were for this Appeal Tribunal to consider exercising that discretion, it would reach the same conclusion.  These are very unusual facts and it seems to us that it is indeed, as the Industrial Tribunal held, just and equitable in all the circumstances of this case that the appropriate extension should be granted to enable what we have already said is not a hopeless case to be properly determined.  

	In those circumstances the appeal against the decision on 22 October is dismissed.