Veitch Penny LLP - Exeter | Crediton, Devon

Case

Stott and others v HM Prison Services
Court of Appeal (7th October 2003)

Issues

(1) Sex discrimination
(2) Employee’s delay in issue of complaint
(3) Assessment of factors to extend time

Facts

Elaine Stott, Fiona Murphy and Christine Bickerdyke were employed as Prison and Probation Officers all of whom worked at Wakefield Prison.

Between July and October 2000 they all received sexually explicit and abusive phone calls. It was found that they had been made by a prisoner who had been able to get unsupervised access to a telephone. It was thought that four other prisoners might also have been involved. Eventually the prisoners were all moved to other prisons - the last one moving in January 2001.

The applicants made a complaint of sexual discrimination on 31st May 2001 and were accordingly 6 weeks outside of the three-month time limit with which to make a claim. They then applied for their complaint to be heard outside the three-month time limit.

In November 2001, there was a Preliminary Hearing in order to determine whether the Tribunal should exercise its discretion to allow the applicants to make their complaint outside the time limit.

The Employment Tribunal took into account both the delay before the claim was issued and the delay which would be experienced before the matter could be listed for a full hearing (it could not be listed until March the following year). Accordingly, it was found that it would not be just and equitable to extend time. There would be difficulties in ensuring a fair hearing, due to the delay coupled with the lack of contemporaneous evidence.

The employees appealed to the Employment Appeal Tribunal who found that the appropriate date for considering whether it was possible to have a fair Trial was the date when proceedings were instituted and not the date when the Tribunal considered whether to extend time.

The employer appealed seeking to restore the previous Judgment.

Decision

The appeal would be allowed.

The issue that the Employment Appeal Tribunal had to consider was whether the Tribunal should only have had regard to prejudice caused by the delay in the issue of the claim or whether it was entitled to take account on the possibilities of a fair hearing given the subsequent inevitable lapses of time.

The Court of Appeal found the original Tribunal was correct in the course it had adopted and therefore the Employment Appeal Tribunal had set the original decision aside in error. Accordingly the Tribunal had been fully entitled to decline to exercise the discretion to extend time. The Employment Appeal Tribunal’s decision would be set aside and the original decision would be reinstated.

Comments

The Court of Appeal noted that discretion provided under Section 76(5) of the Sex Discrimination Act 1975 could not have been wider. In determining what was just and equitable, the Tribunal was entitled to have regard both to the blameworthiness of either side and any delay to a possible Trial date. To limit the Tribunal’s considerations to factors that arose only before the issue of the claim would be wholly artificial. Section 76(5) of the Act required that the Tribunal have regard to all the circumstances of the case.