Appeal No. EAT/0753/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 October 2001

Before
HER HONOUR JUDGE A WAKEFIELD
MS N AMIN
MRS D M PALMER

DR D K BANERJEE	APPELLANT

1) MRS J BARTON 2) ST HELENS AND	RESPONDENTS
KNOWSLEY HOSPITAL NHS TRUST

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	MR D MELVIN
(Senior Legal Officer)
Instructed by
British Medical Association
Bartree House
460 Palatine Road
Northenden
Manchester
M22 4DT	

JUDGE A WAKEFIELD

1.	This is an Ex Parte Preliminary Hearing of an appeal by Dr D K Banerjee against a decision of an Employment Tribunal sitting at Liverpool by which on a preliminary issue they decided that the first Respondent’s complaints of sex discrimination against the Appellant had been presented out of time but that it was just and equitable to allow them to proceed to a hearing.

2.	The background to the appeal is that by an Originating Application presented on 15 January 2001 the first Respondent complained that St Helens and Knowsley Hospital National Health Service Trust had indirectly discriminated against her on grounds of her sex and was in breach of contract and that the Appellant had, since October 1998, directly discriminated against her on grounds of her sex.

3.	At the hearing before the Employment Tribunal on 18 May 2001 it became clear from the evidence given by the first Respondent that her complaints against the Appellant were of acts which had occurred between October 1998 and July 2000.

4.	By Section 76 of the Sex Discrimination Act it is provided as relevant that an Employment Tribunal shall not consider a complaint under Section 63, that is of an act of sex discrimination, unless such complaint is presented to the Tribunal before the end of the period of three months beginning when the act complained of was done.  But by sub-section 5 of that section, a Tribunal may nevertheless consider any such complaint which is out of time if in all the circumstances of the case it considers that it is just and equitable to do so.

5.	The relevant findings of the Employment Tribunal at the hearing of the  preliminary issue are set out in paragraphs 11 – 18 of their decision as follows:

“Mrs Barton first complained of sexual harassment in or about July 2000.  She had actually been away from work due to illness for several months before then.

She told us, and we accepted, that she was very upset at the time.  Indeed, she became very upset before us.

She contacted her trade union representative in August but, as we have said, also lodged a formal complaint in that month.

On 16th October she was told the outcome of that complaint.  She was also reminded of the three month time limit for making a claim to the Tribunal (which had already been mentioned to her at earlier meetings with her representative).

The Originating Application was received at the Tribunal on 15th January 2001.

We considered that it was just and equitable that the claim should be permitted to proceed in its entirety.  We accepted that Mrs Barton’s mental state at the time was not all it might have been and that contributed to the delay.

This was not a case in which the delay was likely to cause severe prejudice to the respondents.  Such conflicts of evidence as there were (and this appeared to be a case in which the conflicts might not be as great as one would normally encounter) would be little harder to resolve than if the application had been presented timeously, some three months earlier.

Furthermore, the applicant clearly would be prejudiced if she was unable to take these matters forward.  It may well be the case that she intends to commence personal injury proceedings against the respondents but there will not be a complete identity between those proceedings and her claim at the Employment Tribunal.”

6.	So, on that basis, they allowed the matter to proceed.  In relation to the claim which was made by the first Respondent in her evidence to the Tribunal that her mental state at the time was not all that it might be, it is interesting that we have been presented with arguments today that the Tribunal should not have proceeded on the basis of such evidence unless it were supported by expert medical opinion.  However, the representative on the part of the Appellant today was not able to tell us that there had been at the Tribunal any challenge whatsoever to the Applicant’s evidence on that matter and therefore in our view there was no reason at all why the Employment Tribunal should not have acted on the basis of such evidence.

7.	The Notice of Appeal challenges the decision of the Employment Tribunal on the basis that (a) they took a demonstrably wrong approach,  (b) that they failed to take account of a relevant consideration, or (c) they took account of some irrelevant considerations or (d) they acted in some way irrationally or perversely.  We were referred to the case of Hutchinson -v- Westward Television Ltd [1977] IRLR 69.  We are satisfied that the Employment Tribunal in this case correctly exercised its discretion.  We remind ourselves that the test here is not whether it would have been practicable to have presented the Originating Application in time.  The test is whether it is just and equitable in all the circumstances to allow the application to proceed.  This is a matter of discretion.  The Tribunal in our view considered all relevant factors.  They did not consider any that should not have been considered.  This Appeal Tribunal will not in those circumstances interfere with the exercise of the discretion.  This appeal cannot succeed and it is dismissed.