Housing Corpn v Bryant

An appellate tribunal exercising a jurisdiction confined to questions of law may interfere with an industrial tribunal’s procedural or interlocutory decision only where a recognised legal error is established, such as failure to consider a relevant factor, or where the decision is perverse. It must not infer an error from silence or substitute its own assessment of case management matters.

A victimisation claim requires a pleaded causal connection between the protected act and the less favourable treatment. A document which merely alleges discrimination and dismissal, without linking the dismissal to the protected act, does not disclose such a claim. An application to amend must be considered on its own facts, including the applicable limitation period and the reasons for delay.

The employee presented claims to an industrial tribunal for unfair dismissal and sex discrimination. The sex discrimination complaint concerned allegedly sexual remarks made by a senior manager and the employer’s subsequent investigation. That complaint was out of time and was dismissed.

The employee later applied to amend her originating application to allege victimisation under the Sex Discrimination Act 1975, asserting that her dismissal was connected with her earlier complaint. The industrial tribunal refused the amendment, finding that the pleading disclosed no grounds for victimisation and that the application was out of time.

The Employment Appeal Tribunal allowed the employee’s appeal and granted leave to amend. The employer appealed to the Court of Appeal. The central issues were whether the industrial tribunal had erred in law and whether the EAT had exceeded its limited appellate jurisdiction.

1. Appeal allowed. The order of the Employment Appeal Tribunal was discharged, and the industrial tribunal’s order dated 19 April 1996 was restored.
2. The EAT and the Court of Appeal could interfere only for an error of law. In relation to procedural or interlocutory decisions, that required a breach of an established legal principle, such as failure to take account of relevant factors, or perversity. Industrial tribunals are expert bodies in case management. Their decisions must not be revisited merely because an appellate tribunal would have assessed the material differently. This approach was consistent with Campion v Hamworthy Engineering, Kwik Save Stores v Swain and X V Z Ltd.
3. The industrial tribunal chairman’s statement that the pleading disclosed no grounds for victimisation was, properly understood, part of his discretionary assessment of the proposed amendment. The EAT was therefore not entitled to substitute its own view unless the chairman’s assessment was plainly unreasonable. Even if the pleading were construed independently, it did not demonstrate the necessary causal link between the employee’s complaint of discrimination and her dismissal.
4. The EAT was also wrong to assume that the chairman had applied the same limitation reasoning used for the original sex discrimination claim. The material before the EAT did not establish that he had ignored the relevant submissions or misdirected himself. The employee had not adequately explained the delay in bringing the victimisation complaint. No error of law was shown.
5. The EAT’s references to inadequate representation did not themselves justify intervention. Lack of skill by an adviser cannot convert a discretionary decision into an error of law: Kumchyk v Derby City Council.
6. By way of additional observation, the lengthy document subsequently prepared as an amendment appeared to replace the original particulars entirely. It would therefore have constituted a new claim brought out of time, rather than a rectification or expansion of the original claim.

• Court of Appeal: Appeal allowed. The EAT’s order was discharged, the industrial tribunal’s order restored, and leave to appeal to the House of Lords refused.
• Employment Appeal Tribunal: Employee’s appeals from the industrial tribunal’s decisions were allowed, and leave to amend the originating application was granted.
• Industrial Tribunal: The out-of-time sex discrimination complaint was dismissed, and the later application to amend to allege victimisation was refused.