Appeal No. EAT/102/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 24 October 1994

	Before

	THE HONOURABLE MR JUSTICE PILL

	MR T S BATHO

	MR R JACKSON

MRS S TURNER	APPELLANT

WHITEHOUSE GROUP LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR I K R WILSON
Solicitor
Messrs Dean-Wilson
96 Church Street
Brighton
East Sussex
	BN1 1UJ

For the Respondents	MR C BAYLIS
(Of Counsel)
Messrs Wallace Jones
Solicitors
208 Beaufort Street
	London
	SW3 6BU

	MR JUSTICE PILL:   This is an Appeal from the Decision of the Industrial Tribunal held at Ashford on 20 December 1993, whereby the Tribunal decided unanimously that the Applicant, Mrs Mei-Shan Turner was not entitled, having regard to the time limit contained in Section 76(1) of the Sex Discrimination Act 1975, to rely as substantive incidents of sex discrimination on matters occurring before a date stated in that paragraph of the decision.  It is stated as being 13 April, but it is clear from other parts of the decision, as the parties agree, was intended to be 7 April 1993.  Mrs Turner had also made a complaint, which is yet to be determined, that the dismissal of the Applicant by her employers, Whitehouse Prestige Cars (UK) Ltd on 14 April 1993, was an act of discriminatory victimisation.

	The Applicant, Mrs Turner, commenced her employment on 23 October 1991.  She complained of a series of acts which she alleged were committed before her immediate superior, Mr Downes.  There is an issue of fact as to what happened.  It was common ground that in relation to her complaint of sexual discrimination, her Application was out of time.  Mrs Turner sought to rely upon Section 76(5) of the Sex Discrimination Act 1975.  Section 76(1) provides that:

		"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".

	Section (3) specifies the jurisdiction of Tribunals and provides that a complaint that another person has committed an act of discrimination against the complainant, which is unlawful by virtue of Part 2 of the Act, may be presented to an Industrial Tribunal.

 	Part 2 of the Act includes Section 6 which provides that in certain respects it is unlawful for a person in relation to employment by him at an establishment in Great Britain to discriminate against a woman. 

	Section 76(5) provides that:

		"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 Tribunal heard evidence from Mrs Turner.  The evidence she gave is set out fully in the Tribunal's decision.  The submissions of the legal representatives on both sides are set out at paragraph 10 of the decision.  

	The conclusions of the Tribunal are set out in paragraph 11.  

		"The Tribunal accepts Mrs Turner's evidence on this aspect of the case as being truthful, and as representing the facts why she did not submit her application earlier.  Indeed, the Tribunal thinks that her evidence was admirably frank.  But it is clear that she sought advice from an early stage, and, although the Tribunal has considerably sympathy with her, because we accept that she may well have felt depressed - to be dismissed is always an unpleasant experience - and the Tribunal does accept that she may well have felt culturally inhibited in discussing the details of her case with advisers who were men, there is no doubt that she could easily have presented her application in time.  She must have known that it was desirable to present it in time - as it is, she presented her application on the last day, but one in relation to her dismissal.  In the circumstances, having regard to the fact that, in considering what is just and equitable, we have to have regard to the interests of both parties and not simply to the interests of Mrs Turner, the Tribunal does not think that it would be just and equitable to extend the time for the period of the complaint in relation to matters occurring on or before 7 April 1993.  But it will clearly be open to the Tribunal hearing the substantive hearing of the case to admit evidence of such matters, on the basis that it may give rise to an inference that the dismissal was an act of discriminatory victimisation".    

	On behalf of Mrs Turner, Mr Wilson submits first, that the Tribunal have applied the wrong test and have had regard to what is reasonably practicable, a test applicable under, for example Section 67 of the 1978 Act, but not to Section 76(5) of the present Act.  Second, he submits that even if the correct test has been applied, on the evidence before the Tribunal it was plainly just and equitable to allow Mrs Turner to proceed.  Third, and associated with that submission, he submits that there was no evidence before the Tribunal of prejudice to the employers save the prejudice which inevitably results when a defence based on a time limit for the bringing of proceedings is defeated.  Fourth, he submits that the result reached by the Tribunal is, in the circumstances, absurd.  It is absurd he submits, in that the Tribunal accept that it will be open to them when hearing the complaint of discriminatory victimisation to hear the same allegations as they have ruled are not admissible by virtue of the time limit to a claim for discrimination.  Fifth, Mr Wilson submits, there is an unsatisfactory lack of reasoning in paragraph 11.  It is not clear he submits, why and on what basis the Tribunal have reached the conclusion they have expressed in relation to the expression "just and equitable".  Mr Wilson referred us to the decision of the Employment Appeal Tribunal, Lord Coulsfield presiding, in Kenneth McRoberts  v  Mrs Margaret Lesley Adams (EAT) Scotland 499/92. In that case the Tribunal upheld a decision of an Industrial Tribunal that it was just and equitable to consider the Application on the merits notwithstanding that it was made out of time.  However, the statement of principle in that case is as follows:

		"In our opinion the Industrial Tribunal have considered the whole circumstances properly and fully, and directed themselves to the correct question.  We see no reason to think that they failed to give due regard to the effect of their decision on the employer.  The question whether it is just and equitable for an application to be allowed to proceed is one which depends on the facts and circumstances, and is primarily one for the Industrial Tribunal to decide.  In our opinion, no reason was set before us to justify interfering with the decision of the Industrial Tribunal, and this appeal will therefore be refused". 

	We were also referred to the decision of the Employment Appeal Tribunal in the older case of Hutchison  v  Westward Television Ltd [1977] ICR 279, Phillips J presiding.  Mr Justice Phillips expressed the approach which the Tribunal should adopt to Section 76(5), page 282E in this way: 

		"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".  

	At page 282B Mr Justice Phillips had stated:

		"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 as 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".

	We agree with Mr Wilson that the test under Section 76(5) is a different one from that under Section 67 of the 1978 Act.  We respectfully accept and adopt the approach of Mr Justice Phillips to the subsection.  The Industrial Tribunal has a wide discretion.  Further, the test plainly requires the Tribunal to have regard to the effect of their decision upon both parties and it is not a case where it is sufficient simply to judge the Applicant's conduct and to base a decision entirely upon that.  In our judgment the Tribunal did apply the correct test.  The expression "just and equitable" appears twice in paragraph 11, and we have no doubt that they had Section 76(5) in mind.  

	The absence of evidence from the Respondents does not, in our judgment, disentitle the Tribunal from reaching the decision they did.  The prejudice to the Respondents of a claim proceeding is obvious as is the advantage to them of not having to meet it upon the merits.  The allegations against Mr Downes as to the merits of which, of course, we make no comment are serious.  In our judgment the paragraph is sufficiently reasoned and the Tribunal plainly had full regard to the evidence given by Mrs Turner and to the prejudice which, inevitably, is occasioned to her if the claim is not allowed to proceed.  As to the submission that an absurd result is achieved, the two causes of action under the Act, are plainly different.  We have referred to Section 6 which is the action found to be defeated by time limit.  The claim which subsists under Section 4 headed "Discrimination by way of victimisation" is a different claim and we cannot regard it as absurd that, upon the scheme of the statute, that claim can proceed and evidence which would have been admissible upon the claim defeated by time is admitted.  The two remedies which the statute provides are distinct and separate from each other.  

	In our judgment the decision which the Tribunal reached was one which they were entitled to reach in the circumstances.  While sharing the Industrial Tribunal's sympathy for Mrs Turner, it would in our judgment be quite inappropriate for this Tribunal to interfere with the decision which the Industrial Tribunal reached upon Section 76(5).  Accordingly, the appeal is dismissed.