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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Aked- Walker v Northamptonshire County Council [1999] UKEAT 932_98_0110 (1 October 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/932_98_0110.html Cite as: [1999] UKEAT 932_98_110, [1999] UKEAT 932_98_0110

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APPEARANCES

 

For the Appellant	NEITHER PRESENT NOR REPRESENTED
For the Respondents	MR J HORAN (of Counsel) Head of Legal Services Northamptonshire County Council PO Box 104 County Hall Northampton NN1 1AN


 


MR JUSTICE HOLLAND: This appeal raises an unusual and unsatisfactory situation. The matter starts with an IT1 dated 28 January 1997. By way of that complaint, Mrs Aked-Walker complains of unfair dismissal and discrimination on grounds of sex at the hands of her erstwhile employer the Respondents, Northamptonshire County Council. Throughout and until today, Mrs Aked-Walker was represented, and not very well represented at that, by a commercial organisation. They certainly provided her with representation for the purposes of the subsequent hearing before an Employment Tribunal held at Bedford on a substantial number of days on and between 2 March and 16 June 1998. In the overall result the unanimous reserved decision of that Tribunal was that:

"(1) The application alleging unfair dismissal is dismissed.

(2) The application alleging discrimination on grounds of sex is dismissed."

1. It is germane for present purposes to note two paragraphs out of the Extended Reasons dated 30 June 1998. First, paragraph 7:

"Because the applicant did not answer directly the respondent's request for further particulars, the precise date of the incidents on which Mrs Aked-Walker relied in support of her allegation of sex discrimination had not been established at the commencement of the hearing. The Chairman made clear at the outset, that it appeared that it was inevitable that many of the incidents on which Mrs Aked-Walker relied in support of her allegation of sex discrimination, would have occurred longer than three months before the presentation of her application to the Tribunal on the 28 January 1997, particularly as it was now apparent that Mrs Aked-Walker had been suspended since the 3 May 1996. It was therefore for the applicant to satisfy the Tribunal, either that there were acts of discrimination which had occurred on or after 29 October 1996, and that earlier incidents were part of an "act extending over a period" within the terms of section 76(6)(b), or that it was "just and equitable" for the Tribunal to consider those complaints under section 76(5) Sex Discrimination Act 1975."

The second material paragraph is 14:

"Specifically, we find no evidence of any act of discrimination that took place on or after the 29 October 1996 – that is, within the three month period prescribed by section 76 of the Sex Discrimination Act 1975. The most recent acts that we have identified as being discriminatory, are Mr Blackham's dealings with the press in the early part of May 1996, and Mr McNeill's comments during the investigatory interviews in May/June 1996. At best, these incidents took place four months before the 29 October 1996. There is evidence that Mrs Aked-Walker had taken legal advice in October 1996 in connection with the complaint by Mr Douglas. Equally – as Councillor Duxbury points out – the complaints about discriminatory practices seem to have been treated by Mrs Aked-Walker as secondary issues – although she does make much of the male culture of St. Johns (which, as Miss Hardman pointed out, was inevitable in a management group almost exclusively male). We are particularly concerned, that although the Tribunal application was lodged on the 28^th January it had clearly been signed two months previously. In the circumstances, we cannot find any basis on which it would be "just and equitable" to consider these matters as amounting to discrimination in respect of which the Tribunal has jurisdiction – whatever our views might be as to their potential as discriminatory acts. We must therefore dismiss the claim alleging discrimination contrary to the Sex Discrimination Act 1975."

2. We focus on those two paragraphs having regard to subsequent developments in this matter. Following the hearing and the propagation of the decision of the Extended Reasons this organisation that was representing Mrs Aked-Walker submitted what purported to be a Notice of Appeal. We use the expression "what purported to be" advisedly. It is a document that extends over some 15 pages and enumerates what are said to be 49 separate grounds of appeal. It is obvious that there could never be 49 grounds of appeal and even a cursory examination reveals that none of those set out in that notice approach in any way the errors of law that are the bread and butter of this Tribunal in exercising its appellate function.
3. True it is that the organisation on dealing with ground 14 somewhat ingenuously includes the following:

"The Respondent's representation was undertaken by a barrister. The Appellant's representative is a lay consultant who regularly provides a channel of representation to applicants who could not otherwise afford to be represented at the Tribunals, but has no pretensions whatever towards any legal qualification."

The candour is to be respected but that immediately begs the question as to how on earth they felt that they were justified at all in purporting to identify points of law on behalf of that client.

4. That observation having been made we then turn to the next development in the matter and that is the preliminary hearing before this Tribunal on 18 January 1999. This Tribunal condemned the Notice of Appeal as being prolix and concerned with fact. It found readily that there was nothing in the document at all but of its own initiative it took a point in the following terms:

"Finally as to sex discrimination the Tribunal found at paragraph 12 of their reasons, several specified examples of discriminatory treatment. However, they later went on to find that none of the matters there complained of took place within three months prior to the presentation of the Originating Application on 28 January 1997.

It is here that we think an arguable point of law arises. The Appellant complained of acts of sex discrimination at her disciplinary hearing and, indeed, at the subsequent internal appeal which itself post-dated the Originating Application. The effect of Coote v Granada Hospitality [1998] IRLR 656 arguably extends time until the determination of the appeal process compare Adakeye v Post Office (No.2) 1997 IRLR 105.

In these circumstances we think that the appeal should be allowed to proceed solely on the issue of limitation under the Sex Discrimination Act."

This Tribunal then indicated that the Notice of Appeal should be totally disregarded, that the matter should proceed simply on the basis of the issue and thus identified.

5. It is further to be noted that one of the consequent directions given by this Tribunal was the preparation of a short bundle of documents. We then come to the more recent events. First we are told that this commercial organisation sought to have agreed some three bundles of what had to be wholly irrelevant documentation. Second and more pertinently it intimated to the Respondents yesterday that they were no longer prepared to represent Mrs Aked-Walker and this morning a fax has been received by this Tribunal headed somewhat bizarrely "Private and Confidential" in these terse terms:

"Dear Sir,

We write to inform you that we are no longer acting for the above applicant.

Yours faithfully,

Leanne O'Toole

for the Employment Law Advice Centre"

6. This inevitably posed a dilemma. The first dilemma is as to the position of Mrs Aked-Walker. This Tribunal has caused her to be communicated with her directly and in the upshot, as the note in front of us says:

"She is therefore resigned to her case being decided today on the basis of her Skeleton Argument that has been sent previously."

This is no criticism of Mr Aked-Walker but the Skeleton Argument that was sent previously has no relevance whatsoever to the point identified by the Tribunal at the preliminary hearing.

7. Thus it is that we arrive at this situation. We have an inter partes hearing ordered by this Tribunal that is to deal with the point that this Tribunal identified. Mr Horan has turned up to argue the matter on behalf of the Respondents and has, as might be expected, put in a careful Skeleton Argument which addresses what on any view are potentially difficult issues relating to the interplay of European Law, with domestic authority and the provisions of the Act. On the other side, there is a conspicuous absence of the Appellant or anybody representing her.
8. We have for our part had to debate how to deal with this situation. Were we in a position to identify readily and with clarity a point arising out of the decision such that we could advance ourselves to Mr Horan the arguments on behalf of the Appellant, then we would have proceeded to deal with the matter in the usual way. We would have been satisfied that whatever the result, the matter being explored properly on its merit, we would have been satisfied that the judgment could reasonably reflect those merits and the underlying law. This is not that case. The point identified by this Tribunal is on any view a subtle one. It reflects facts that have some obscurity even with the aid of the findings of the Employment Tribunal yet further the legal concepts involved are far from straightforward.
9. The Cootes case as identified by this Tribunal is a European case, and as Mr Horan's Skeleton Argument points out, there is a subsequent decision in the same matter, this time of this Tribunal. Those respective decisions do not directly bear upon the time limits imposed by the Sex Discrimination Act within which complaints can be made and, were there proper inter partes argument, it would be necessary for some careful exploration as to the long-term implications of Cootes case, as to the underlying European Law and as to the interaction between such and the provisions of the Sex Discrimination Act.
10. As a forensic exercise it seems to us hopeless to try to conduct this with one side only represented, and even if we were to attempt it, the resulting judgment would be manifestly unsatisfactory however well Mr Horan argued, however hard we tried to formulate and express views. It would indeed be in our judgment somewhat dangerous to throw into this particular part of the law a judgment, which must inevitably be fundamentally open to criticism given the representation problem. Thus it is we are unwilling to enter into the merits of the matter even though Mr Horan was willing to try to help us.
11. We have decided to regard this appeal as not being prosecuted and in those circumstances, for want of prosecution, we dismiss it forthwith. That then is the order of this Tribunal. Before parting with the matter we must express our concern and dismay that this commercial organisation should have waited until today to inform this Tribunal that it was no longer acting and to do so without offering any explanation whatsoever. We are aware that we cannot necessarily expect from such an organisation the standards that we would expect from solicitors or from the Bar, but if they are minded to try to fill a role that proximates to that taken by those two professional bodies, then there is no reason why dictates as to good manners and proper behaviour should not prevail so that at the very least, this Tribunal is considered with courtesy and consideration as well as their opponents who seem remarkably philosophic in all the circumstances.