Appeal No.	 EAT/178/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 February 1998

Before
THE HONOURABLE MR JUSTICE BELL
MR L D COWAN
MR R SANDERSON OBE

MR J ORMAN & MRS B ORMAN	APPELLANTS

MISS S GEAR	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MRS B ORMAN
(on behalf of herself and 
her husband)	

	MR JUSTICE BELL:     This is a preliminary hearing in respect of an appeal by Mr and Mrs Orman against the decision of an Industrial Tribunal held at Stratford on 21 October 1997, registered on 6 November 1997, that the Applicant was unfairly dismissed and dismissed in breach of the Sex Discrimination Act 1975.

	The Tribunal awarded the Applicant, Miss Gear, a total of £2,879.65p against both Respondents, Mr and Mrs Orman, in respect of her unfair dismissal, and the sum of £2,000 against both Respondents in respect of sex discrimination.  The total award therefore, against both Mr and Mrs Orman together was £4,879.65p.

	On reading the papers in this case it appeared to us that the main point on the appeal was whether the Industrial Tribunal was in fact entitled to find, on the material before it, that Miss Gear was dismissed at all by Mr and Mrs Orman, more particularly by Mr Orman, and we say no more than this, at this stage that had the hearing proceeded on the basis of that contention alone, we might have found it difficult to say that no reasonable Tribunal, properly directed, could have reached the decision which they did, whether or not it was actually Mr Orman who conveyed the fact of her dismissal to Miss Gear personally.

	However, early in this hearing at which Mrs Orman has attended to represent both herself and her husband, and at which Mr Galver has very kindly stepped in from the back of the courtroom to offer assistance which we asked of him, it became clear that one of Mrs Orman’s complaints, which she has put before us very gently, indeed, diffidently, was that neither she nor her husband were asked by the Chairman of the Industrial Tribunal whether they wanted to make representations in respect of the addition of a complaint of sex discrimination to the complaint of unfair dismissal, which appears on the face of the Applicant’s form IT1.  Moreover, Mrs Orman who was added as a Second Respondent to the application, says that she was not asked if she wanted to make any representations upon her addition as a party and, indeed, she sat through the whole Tribunal, not only without giving evidence, as I understand it, but without being aware that she was entitled to ask questions of any of the witnesses.

	We have got a copy of the relevant pages 3 and 4 of the Applicant’s IT1.  In box 1 appear the words “Unfair Dismissal”.  In box 11 there appears a reference, of course, to the end of her employment.  There is no reference to pregnancy as such, at least expressly, though Miss Gear does speak of Mr Orman saying that she was being silly and it was too dangerous and would not looked good if she worked on until as late as September 1997.  If one knew all the background one might take that to be a reference to it not looking good and being silly and dangerous because she was pregnant, but it does not, to us, leap off the face of the page that she was making an allegation that she had been dismissed because of her pregnancy.

	Section 76(1) of the Sex Discrimination Act 1975 puts a time limit of three months on the bringing of a complaint of sex discrimination, but in subsection (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 terms of the Industrial Tribunal’s decision in paragraph 2 of the extended reasons make it clear that the Tribunal did consider whether it was fair, certainly from the Applicant’s point of view, to add a complaint of sex discrimination but it does not, on the face of it, make it clear that Mr and Mrs Orman were invited to give representations which were recorded on whether the sex discrimination allegation complaint should be added or whether Mrs Orman was invited to make representations which were recorded on whether she should be added as a Respondent.

	The question is, where does one go from there?  Mrs Orman says that, had she known that there was any possibility of a claim of sex discrimination she would have certainly got legal representation for the hearing because quite understandably, particularly as a woman, she sees that as a particularly serious allegation.  She has told us this morning that, if this matter is allowed to proceed to a hearing she will seek legal advice on behalf of herself and her husband, which we have to say would be very sensible of her in all the circumstances.  It might be, when further enquiry is made, that it will become apparent that whatever Mrs Orman’s recollection today,  she and her husband were given every opportunity to comment on whether an allegation of sex discrimination should be added and whether she should be added as Respondent.  The one thing which is certain is that we cannot carry out any further effective enquiry into the matter which will throw light on the matter.

	In those circumstances, what we propose to do is to allow the matter to proceed to a full hearing inter partes of the appeal before the Employment Appeal Tribunal.  We direct that such Chairman’s notes as there are relating to the addition of the complaint of sex discrimination and/or the addition of Mrs Orman as a Respondent, be produced.

	We give leave to Mr and Mrs Orman to add to their Notice of Appeal any ground relating to any alleged procedural defect, which they are advised to add within 28 days of today’s date.  The appeal should be listed as a Category C case, with a time estimate of half a day.