Appeal No.	 EAT/150/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 June 1999

Before
HIS HONOUR JUDGE PETER CLARK
MRS T A MARSLAND
MRS R A VICKERS

MR K KIVERSTEIN	APPELLANT

DEPARTMENT OF TRANSPORT & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS KAREN STEYN
(of Counsel)
Appearing under the
Employment Law Appeal
Advice Scheme	
For the Respondents	MR TIM BRENNAN
(of Counsel)
Treasury Solicitors
Queen Annes Chambers
28 Broadway
London SW1H 9JS	

	JUDGE PETER CLARK:	The Appellant, Mr Kiverstein, commenced employment in the Civil Service on 30 March 1987.  At the material times he was an Executive Officer in the Press Office of the Department of Transport, the Respondent.

1	On 7 August 1996 he presented an Originating Application to the Employment Tribunal.  The nature of his complaint was that in August 1994 a member of his staff, Mr Catling, made a formal complaint that he, Mr Catling, had been sexually harassed by the Appellant’s line manager, Mrs Mongelard, in that she called him a “trouble-making queer”.  The Appellant took the matter up, complaining to his Head of Division that Mr Catling’s complaint was not being taken seriously.  Matters developed in such a way that the Appellant believed that he had been victimised under the Sex Discrimination Act 1975 for his complaint about Mrs Mongelard’s treatment of Mr Catling.

2	In their Notice of Appearance the Respondent took a preliminary point that the original complaint made by the Appellant was a complaint of discrimination by reason of sexual orientation in the case of Mr Catling and as such was not a complaint of sex discrimination under the 1975 Act, applying the then approach of the Employment Appeal Tribunal in Smith v Gardner Merchant [1996] IRLR 342.  It could not, therefore, amount to a protected act for the purposes of the Appellant’s victimisation complaint under the 1975 Act.

3	On 22 October 1996 a Chairman at London (South) Employment Tribunal directed that there should be a preliminary hearing on the question whether the Tribunal had jurisdiction to hear the Appellant’s complaint.  That preliminary issue came for determination before a Chairman, Mr D.N. Milton, sitting alone at London (South) on 22 November 1996.  By a decision with Extended Reasons dated 11 December 1996, the Chairman upheld the Respondent’s submission.  At paragraph 9 of his reasons he said this:

“It was not disputed by the Applicant that the sexual harassment of Mr Catling by Mrs Mongelard (if for the purposes of argument it occurred at all) was harassment on the grounds of Mr Catling’s sexual orientation.  I was referred to the decision of Smith v Gardner Merchant Limited 1996 ICR page 790 and I am quite satisfied that on the current state of the law of England there is no statutory protection under the Sex Discrimination Act or EEC law against unfavourable treatment for sexual orientation.  It follows therefore that even if Mrs Mongelard had been guilty of the conduct alleged, there was no ‘protected Act’ which in turn could give rise to a claim for victimisation under Section 4 of the Act.”

4	In his reasons the Chairman goes on to deal with a wider case which the Appellant sought to advance, namely that he had additionally complained that Mrs Mongelard had discriminated against men generally and himself, in particular, and for that matter had discriminated against Afro-Caribbeans.  He therefore sought to argue his victimisation claim on that basis as well.  

5	The Chairman treated that wider case as requiring leave to amend the Originating Application and for the reasons which he gave he declined to give such leave.  Finally, and as a result of his understanding of the law as expressed by the EAT in Smith v Gardner Merchant, the Chairman concluded that the claim must be dismissed at the preliminary hearing.

6	Against that decision the Appellant appealed by a Notice dated 17 January 1997.  The appeal was stayed pending the outcome of the reference to the European Court of Justice by Lightman in R v Secretary of State for Defence ex parte Perkins [1997] IRLR 297.  History shows that following the European Court of Justice decision in Grant v South West Trains [1998] IRLR 206, that reference was withdrawn by order of Lightman J on 13 July 1998:  see Perkins (No.2) [1998] IRLR 508.

7	However, that did not end the matter.  The Court of Appeal subsequently heard the Appellant’s appeal in the case of Smith v Gardner Merchant.  The judgment is reported at 1998 IRLR 510.  Consistent with the European Court’s decision in Grant, the Court of Appeal accepted that a claim based on discrimination on the grounds of sexual orientation did not constitute a complaint of sex discrimination either under Domestic Legislation or Community Law.  However, the Court held that it was open to the Applicant in that case to contend that he had been discriminated against on the grounds of his sex, if it could be shown that a female homosexual would have been treated more favourably than he had been.

8	The Registrar wrote to the Appellant earlier this year enquiring whether he wished to pursue his appeal.  By letter dated 1 March 1999 the Appellant replied seeking leave to amend his original grounds of appeal by the addition of a ground which relies upon the Court of Appeal decision in Smith v Gardner Merchant.

9	The Respondent, through the Treasury Solicitor, opposed that application for leave to amend by a letter dated 7 April.

10	On 20 April the Registrar directed that the appeal should be listed for a preliminary directions hearing.  At that hearing the Respondent would be at liberty to make representations on the question of leave to amend.  There would then be strictly an ex parte preliminary hearing to determine whether or not the matter should proceed to a full hearing and finally, both parties were able to make submissions on any necessary directions if the matter was allowed to proceed.

11	We dealt first with the application for leave to amend and Ms Steyn submitted that the basic appeal, which does not include an appeal against the Chairman’s refusal to grant leave to amend the Originating Application, remains the same save that now that the law has been revealed by the Court of Appeal in the Smith v Gardner Merchant case, the point should be clearly set out on the pleadings.

12	Mr Brennan opposes the application.  He refers to the Appellant’s attempts to widen the argument before the Chairman, which course the Chairman declined to accept by refusing leave to amend, and he submits that that was a perfectly proper exercise of the Chairman’s discretion.  We accept that submission and indeed, no appeal is made against that order.  He submits that the law has not materially changed for the purpose of this case, that from the outset the Appellant sought to argue his victimisation claim on the basis of the sexual orientation ground and that remains invalid as a result of the European Court decision in Grant.  

13	It seems to us that there is no material distinction to be drawn between this case and Smith v Gardner Merchant in the sense that it is open to the Appellant, at a full merits hearing, to argue that he was victimised on the basis of a protected act, that is a complaint of the employer’s treatment of Mr Catling’s complaint of sexual harassment by Mrs Mongelard and that if it is shown that Mrs Mongelard would not have treated a female homosexual employee in the same way as Mr Catling, then the necessary chain is established for the purpose of succeeding in a victimisation claim.

14	In all the circumstances, and in the exercise of our discretion, we think it is right to grant leave to amend the Notice of Appeal in the way raised in the Appellant’s letter of 1 March 1999.  However, now that he has the advantage of representation, we shall grant 14 days from today, in which to allow the Appellant to lodge draft amended ground of appeal, that document to be directed for my attention and I will then consider granting leave.

15	Turning now to the preliminary hearing, having set out the background, we have reached the conclusion that the matter ought to proceed to a full appeal hearing so that this Tribunal can consider the effect of the Court of Appeal decision in Smith v Gardner Merchant, in the circumstances of this case.  In this connection I should draw the parties’ attention to Harrison v Boots (EAT/1098/97, 2 July 1999) decided after the hearing in this case.

16	Secondly, the Chairman dismissed the Originating Application on the basis that the Tribunal had no jurisdiction.  Ms Steyn raises the point that this was not a matter which went to jurisdiction, it was a matter for a full merits hearing and that point will also be considered at the full hearing.

17	Finally, so far as directions for the full hearing are concerned, we shall list the case for half a day, Category B; there will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing, copies of those skeleton arguments to be lodged at the same time at this Tribunal.

18	I grant leave to Appellant to amend his Notice of Appeal in the form of the draft dated 18 June 1999.