Appeal No. UKEAT/0345/09/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 September 2009

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

UNIVERSITY OF WESTMINSTER	APPELLANT

DR G N BAILEY OBE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR B COOPER
(of Counsel)
Instructed by:
Messrs Eversheds LLP
One Wood Street
London  EC2V 7WS	
For the Respondent	DR G N BAILEY OBE
(The Respondent in Person)

SUMMARY
JURISDICTIONAL POINTS:  Extension of time: just and equitable
The Employment Judge erred when he exercised discretion to allow a Sex Discrimination Act 1975 claim 19 months out of time, the prejudice to the Respondent being considerable, on the grounds amongst others that a senior lecturer in business did not know the Act applied to men, and was seeking to operate internal grievance machinery. Although a litigant in person, the Claimant had five post-graduate degrees and represented his union and the public and was at no disadvantage. 
Appeal allowed, Judgment set aside and discretion exercised afresh to dismiss the claim.

HIS HONOUR JUDGE McMULLEN QC
1.	This case is about the time limit for presenting a claim under the Sex Discrimination Act 1975 and the exercise of discretion to enlarge time in the hands of an employment judge.  I will refer to the parties as the Claimant (Dr Bailey OBE) and the Respondent (the University of Westminster).

Introduction
2.	It is an appeal by the Respondent in those proceedings against an oral judgment by Employment Judge Professor AC Neal sitting alone at London (Central) on 19 December 2008 for which reasons were given on 9 March 2009.  I directed the Judge to give a written judgment for otherwise the appeal could not have proceeded.  I am grateful to him for signing a judgment on 18 September 2009.  I will make a correction to show that the representation on the day was the Claimant in person and Mr Ben Cooper of Counsel who again appears for the Respondent.  The actors in this drama are important for a number of reasons which will become clear.  

3.	The Employment Judge suffuses his judgment with the expertise which he brings to this field and I pay tribute to him as an academic, a practitioner and international teacher of employment law, as well as a long-standing employment judge.  

4.	The Claimant is a litigant in person, which he draws to my attention throughout his address and written submissions.  He is, by profession, a senior lecturer at the University.  He teaches business strategy and, of particular relevance to today’s proceedings, he teaches on the Masters Course for HR and Personnel Development.  He is surrounded by colleagues who know about employment law.  He is a member of the UCU, the union recognised by the University and nationally.  He sits, elected by his colleagues and on the UCU ticket, on the appropriate bodies of the university.  He has five post- graduate degrees and has a long history of public service in representing others as recognised by the Queen’s honour.  

5.	At the Employment Tribunal, a general discussion was conducted by the Judge and then evidence on oath was taken at which questions were asked by the Judge of Ms Davies the relevant manager of the University and of the Claimant.  The Claimant contends he did not ask all the questions he would have wished, but he told me that he was satisfied that task was undertaken by the Judge, so that those matters which exercised the Judge’s mind were the kind of concerns which the Claimant had about the evidence given by Ms Davies.  There is no free standing complaint of an unfair procedure at this hearing on the grounds that the Claimant did not have the opportunity to cross-examine Ms Davies.  So I am satisfied there was a proper opportunity for the ventilation of the relevant issues relating to time and the extension of time.  

6.	The nature of the proceedings was to decide whether the claims should be admitted and whether the Employment Act 2002 (Dispute Resolution) Regulations 2004 regime had been complied with.  Thus the case was conducted at a PHR by a judge alone.  The Claimant brought many claims under different strands of the employment protection canon including discrimination on the grounds of age, religion, belief, trade union membership and activities.  All of those were dismissed and taken no further.  The sole remaining live issue is the Judge’s finding that the claim under the Sex Discrimination Act 1975 was presented out of time, but that it was just as equitable for time to be enlarged so as to validate the claim.  It is against that judgment that the University now appeals.    

7.	Directions were initially given by HHJ Peter Clark on this appeal, who found under Rule 3(7) that the appeal had no prospect.  But on the University applying as is its right under Rule 3(10), the matter came before HHJ Ansell who decided that it was unnecessary to conduct a hearing, for he considered that the appeal, supported now with a skeleton argument and a considerable volume of papers, disclosed reasonable prospects of success and that there should be a full hearing.

Legislation
8.	The legislation is not in dispute.  The time for bringing a claim under Section 76(5) of the Sex Discrimination Act 1975 is three months from the date of the relevant event, but there is an extension available to a judge where it is just and equitable to permit the claim to proceed.  

9.	The Employment Judge directed himself in accordance with the statute and the relevant authorities, which he set out in paragraph 25 of the judgment and as to which there is no dispute.  What is in dispute is the application of those principles to the circumstances in the case.

The facts
10.	The Respondent is a major university in the capital with a long-standing and impressive tradition of learning.  The Claimant too has a long-standing reputation, about to retire after some 35 years of tertiary teaching at the end of this year at the age of 65.  It is, no doubt, a sadness to all around him that in the late stages of his successful career he is engaged in this litigation.  

11.	As are many universities throughout the United Kingdom, the Respondent is engaged, in a process of grading conducted according to standards known as Hay.  There has been a good deal of reference to this in the hearing before me and some reference to it in the hearing before the Employment Judge, although, of course, much of this was well known to him from his status in the academic world

12.	The Claimant was given a grading which he considered to be discriminatory, for a female employee of the University had been graded differently, on the ground of his sex.  The short chronology in this case is that the grading decision was given to the Claimant on 1 June 2006.  Thus the time limit expired for bringing a claim of sex discrimination on 31 August 2006, the rule of thumb being three months less a day.  He presented his claim on 21 April 2008.  It was thus 19 months out of time.  The Respondent contends the start date is 1 June 2006 but it is common ground that he was aware of sufficient detail about his complaint to enable him to raise a grievance on the subject at the latest in April 2007.  That is a grievance which the University conceded was relevant to the 2002 Act regime and enabled him to present a claim to the Tribunal of sex discrimination.  The delay with which the Employment Judge was concerned was either one year or 19 months. 

13.	The Judge considered a number of factors as to which he carried out a balancing exercise and held that, although there were factors which favoured the refusal to exercise discretion, for they favoured the Respondent, on balance the discretion should be exercised in favour of the Claimant to allow the claim to go forward.  The Judge considered delay in obtaining various information, delay in following internal procedures for the rectification of grading errors, the length of time the delay had occurred and the state of knowledge of the Claimant.  In balancing those factors, the result was that the claim would be admitted.  

The Respondent’s case
14.	The principal argument of the Respondent was that no clear reasons were given by the Judge for the exercise of his discretion, but insofar as they were exigible, there was no proper ground upon which the discretion should be exercised.  The Judge had considered irrelevant factors and had failed to take into account certain relevant factors, all of which would affect the judgment.  

15.	In a powerful submission, Mr Cooper condemns the Employment Judge for a wholesale lack of analytical rigour, that he paid lip service to the self direction correctly given, and had failed in relation to its application.  The Judge had unfairly placed a burden of proof upon the Respondent, which was not correctly there, and had criticised the Respondent inconsistently for the unavailability of certain material.  There was, in addition, a simple contention of perversity: no reasonable judge, in the light of the stark chronology, could have decided in the way he did.  

16.	What was required were simple findings as to the date on which the decision had been taken and became known to the Claimant, the date on which he had relevant knowledge upon which to base a claim of sex discrimination and the reason why a claim was not presented before 21 April 2008..

17.	Mr Cooper submitted the judgment should be set aside but the matter should not be referred back to a judge and that I should exercise the discretion myself.  Failing that, the matter should not be sent back to Employment Judge Neal, for the defects in the judgment were systemic and discretion was based on a misapprehension which could not be corrected by a redirection and it should, in those circumstances, be given back to a different judge.

The Claimant’s case
18.	The Claimant contends that the principal issue in this hearing is the relationship between the claim within the Employment Tribunal and the claim within the internal procedure for the resolution of disputes about grading.  He also contends he was under a misapprehension as to the scope of Sex Discrimination Act 1975, he not knowing it applied equally to men and women until April 2007, when advised by an officer of the UCU.  He contends that he has a real issue to present to an Employment Tribunal.  If overturned, this procedural decision will deprive him of justice.  He makes no criticism of the Judge’s direction nor of the analysis of Mr Cooper, but argues that the Judge made a decision which was just and equitable and exercised his discretion correctly.  

The legal principles
19.	I take the legal principles to be as follow: an allegation of perversity in this court has to cross a very high threshold see Yeboah v Crofton [2002] IRLR 634 CA.  An overwhelming case has to be shown that the judgment below was wrong.  

20.	In respect of an exercise of discretion, considerable authority is given to a first instance judge and it is only if the judge exercised the discretion in a way which was wrong in principle, or if he or she considered irrelevant factors, or failed to take into account relevant factors that the exercise of discretion will be set aside.  As to the discretion under Section 76 of the Sex Discrimination Act 1975, the burden of proof is upon the Claimant to show that the discretion should be exercised in his favour and it is treated as exceptional rather than the rule, Robertson v Bexley Community Centre [2003] IRLR 434 (CA), paragraphs 24-25 per Auld LJ.  

21.	In deciding the issues, the following considerations from British Coal Corporation v Keble [1997] IRLR 336 EAT, paragraphs 8-9 in the judgment of Smith J, as she then was, will be relevant: (1) the length and reasons for delay (2) the extent to which the cogency of the evidence is affected (3) co-operation with any requests for information (4) promptness (5) any steps taken to obtain advice.

22.	Whether any factor is capable of providing an explanation is a test of relevance, so that a Claimant, when relying upon any particular fact is obliged to show that on cogent evidence.  Generally speaking, attempts by a Claimant to pursue an internal procedure do not afford grounds for the exercise of discretion: see Apelogun-Gabriels v London Borough of Lambeth [2002] IRLR 116) and the parallel principles for discipline which I have considered against the background of the 2002 Act regime in Remploy Limited and Shaw [2009] ICR 1159.  

23.	The most outstanding example of the exercise of discretion is the judgment in Southwark London Borough Council v Afolabi [2003] ICR 800 CA.  There, the court upheld the judgment of the Employment Tribunal, which I had upheld in the EAT, indicating a claim for race discrimination could proceed nine years after the relevant event.  This is an important case because it shows the startling reach of the discretion. A complaint about a grading did not become known to the putative claimant until he saw his personnel file.  The people who had made the decision criticised were available, as were their notes of the relevant interviews. No prejudice therefore occurred and the claim was allowed to proceed.

24.	Litigants in person are regular and welcome participants in the Employment Tribunals and are encouraged to present their own cases in this user-friendly, cost free environment and I adopt the comments made by Sedley LJ in Gee v Shell UK Limited [2002] EWCA Civ 1479.

25.	Where all the facts are known on appeal, it is often in accordance with the overriding objective for the EAT in overturning a decision to make the decision afresh without remission.

Discussion and conclusions
26.	I accept the criticism of Mr Cooper that many of the areas in which the Judge was required to make findings are not the subject of findings and are woolly.  For example, he does not specifically set out the chronology and makes a gross error in respect of the timing, which is to place the deadline for the submission of a claim form as being the beginning of September 2007 when it is 31 July 2006.  Mr Cooper accepts this is not his finest point, but it is symptomatic, he contends, of a failure directly to grapple with the essential findings which need to be made in this case.  

27.	The Judge recorded the circumstances: it was not unreasonable for the Claimant to hold back and not to rush to litigation, he had a long career, which was coming to an end, the law was difficult and the Claimant was a litigant in person unaware of legal rules.  I credit Dr Bailey with the usual attributes of a litigant in person: stress, unfamiliarity in the courtroom and solipsism.  But as he has presented to me, he was at no disadvantage for representing himself.  It must be borne in the mind he was making a simple non-legal case, a senior lecturer in one university talking to a professor in another about his grading and late appeal; a walk in the grove. He is in the profession of communication in public and he is at the very top end of those litigants in person who are entitled to fair treatment.  He suffered no disadvantage before the Employment Judge or before me. This was not a factor to be weighed in his favour.

28.	The plea must be considered analytically, which the Judge did not do. Most people who suffer an adverse decision at the workplace do not have an employment lawyer on site.  They may know how to reach one, or be a union member. If they take the steps in litigation such as issuing a claim or advocacy, they are aptly described as litigants in person and are entitled to a generous reception by the courts. What an ordinary working person on hearing an adverse result does is to ask around or do research seek professional advice. All he had to do was put in a claim and explain why he did not do so for almost two years. To describe him at that stage as a litigant in person overstates the point. 

29.	He told the Judge that he had not understood that the Sex Discrimination Act 1975 applied to men and women before April 2007.  I find that difficult, particularly as he teaches HR postgraduates and it has, since 1975, been or should have been the policy of business to acknowledge equality of opportunity. The short title of the Sex Discrimination Act 1975 provides:
“An act to render unlawful certain kinds of sex discrimination ... and establish a commission with the function of working towards the elimination of sex discrimination and promoting equality of opportunity between men and women generally ...”

30.	The Judge gave no reason for accepting this extraordinary excuse. Nevertheless, since that belief has not been challenged, I will accept that until 2007 this senior lecturer in business did not know that for over 30 years men might take advantage of this national and EU measure.  

31.	The problem for the Claimant is that the primary ground he now advances is the operation of the internal procedures.  As I have made clear by reference to the authorities, these are not grounds except for the unusual case governed by the 2002 Act regime, where there is an extension of time of three months only.  It is, of course, laudable that the Claimant, particularly as a trade union representative, should want to go through the procedure, but at the same time the law must operate and a claim must be presented.

32.	In my judgment, the Judge relied upon an inconsistent approach to one particular matter relating to the procedure.  The procedure provided for a decision by a panel, and for it to be reviewed by what is described as the sore thumb panel (a decision which sticks out like a sore thumb is the imagery).  The documents for both of those panels were unavailable and some decision makers were unidentifiable.  But the unchallenged evidence of Ms Davies, wrongly recorded by the Judge as being a possibility rather than a certainty, was that the final decision of the evaluation decision was anonymised.  Not only were there no records by the decision takers, but the names of the decision takers were not known.

33.	The Judge accepted it was correct for the University not to keep such records for almost two years and to anonymise certain decisions of colleagues by others. At the same time he recognised there would be prejudice to the Respondent in seeking to defend the Claimant’s claim without that material.  To have decided that the case should go ahead was, in my judgment, wrong in principle.  It appeared to be a criticism of the Respondent in his final decision that it had not made this material available.  Indeed, it continues to be a sore point with the Claimant as he addressed me today.  But in the exercise of discretion, the factors weighed by the Judge, three of which were in favour of the Respondent, ought also to have included the inability of the Respondent to produce the relevant material.  

34.	Mr Cooper, in a sustained submission, indicates the Employment Judge reversed the burden of proof upon the Respondent and I agree.  But of course at a full hearing, the Claimant will make a prima facie case which must, if it gets through, be rebutted by cogent explanations of the Respondent which it will not have, absent the documents and the decision-takers.  The simple question was why was the decision made by the final panel and who made it?  It will not be available to the Respondent and that, in my judgment, is a very relevant factor to be considered.  The Judge’s findings about those two matters, the reason for the lack of knowledge and the fact that it prejudiced the Respondent, should have caused the decision to be made in its favour. 

35.	I consider that the timescale in this case are telling.  The Judge did not decide on the relevant date. It is 1 June 2006 when the decision was made.  Even if I were to consider the time during which the internal procedure was operated, it still does not account for about half of the relevant time in this case.  The period from the decision until the Claimant was advised by his union that the Act applies to men, was about ten months. A misapprehension of such elementary equality requires searching examination. Succeeding that time, April 2007 to, say, January 2008, is the period covered by the internal machinery. Then three months pass. There is no explanation and no finding as to why the claim was not filed.  

36.	In those circumstances, I hold that the Judge did not approach correctly what is, on any ground, an extraordinary delay.  This case required careful attention to the factors and findings of fact which were put forward and the Judge’s decision is not understandable through his reasons. Indeed, the reasons he gave point, rather, in favour of the Respondent.  

Disposal
37.	Having detected an error of law, I have to decide disposal of the case. Understandably, Dr Bailey, if this were to be my judgment, told me he would prefer the matter to go back to Employment Judge Professor Neal, notwithstanding that he had himself lost before him on the other strands of his case.  The alternative of course is to remit this matter to another judge.  

38.	I have sufficient material to make the decision myself on the application of Mr Cooper.  The decision I make pays careful attention to the fact that the Claimant, being a litigant in person, did not know the application of the Sex Discrimination Act 1975 until 2007, but even then, on that date, time began to run and the claim was a year out of date.  

39.	It is not in the interests of justice for this case to go back to an Employment Tribunal when the facts are so stark, the chronology so clear and the explanations so jejune.  It is as easy for me to apply the relevant principles to the factual circumstances of this case as it is for an employment judge.  If I were to remit the matter I would not, with respect, submit it to Employment Judge Neal, for although he has found for and against each of the parties, the exercise of his discretion is so affected by his consideration of factors that are not relevant that it would not be fair to send it back to him, applying, as I do, the principles in Sinclair Roche & Temperley v Heard [2004] IRLR 763.  

40.	In my judgment, this claim was out of time.  Time ran from 1 June 2006 and I do not accept that time began in April 2007, although my judgment would be the same if I were wrong on the first point and the correct date were April 2007.  Time limits in discrimination cases are short, evidence is wasting, relief is difficult to come by the longer a breach remains unremedied.  

41.	So, the facts are clear enough for me to decide that it would be wrong to exercise discretion in favour of the Claimant.  Misunderstanding the elementary scope of the Act is not a reason. He was a person who knew, or should have known, the importance of presenting a claim quickly after 1 June 2006 or if I am wrong about that, April 2007, and lodging a claim in 2008 was way beyond any reasonable elongation of time.  The undisputed evidence is that in April 2007 he filed a grievance which satisfied the 2002 Act regime for an Employment Tribunal claim of discriminatory grading. It is not just and equitable to allow him a further year. And if I am wrong about that, three months from January 2008 to 21 April 2008 is not justified. I accept the University is disadvantaged by this delay for not having access to the relevant material and I can add those points to the three factors which the Judge himself considered as being in favour of the Respondent. The Claimant’s awareness of the situation and the problems relating to the obtaining of information are insubstantial.  

42.	The appeal is allowed. The judgment is set aside. The Claimant was out of time and discretion to extend time is refused.