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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ministry of Defence v. Bloomfield-Evans [2001] UKEAT 63_99_2303 (23 March 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/63_99_2303.html Cite as: [2001] UKEAT 63_99_2303

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APPEARANCES

 

For the Appellants	MR K MORTON (of Counsel) The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS
For the Respondent	MR D BROWN (of Counsel) Instructed By: Messrs Warner Goodman & Streat Solicitors 8/9 College Place London Road Southampton SO15 2FF


 


MR JUSTICE CHARLES:

Introduction

1. The underlying issue in the appeals before us in this case is whether or not the Applicant has brought her claims in time and, if she has not, whether her time for doing so should be extended pursuant to Section 76 (5) of the Sex Discrimination Act 1975 (the SDA). That section provides that:

"A … tribunal may nevertheless consider any such complaint, claim or application, which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

2. The Applicant's claim is for sex discrimination. Originally her claim was against the present Appellant (the MOD) and an individual (Mr H). The Originating Application was presented on 16 December 1997. In paragraph 10 subparagraphs 23 and 24 of her Originating Application the Applicant's claims are put as follows:

"23. My claim against the First Respondent is that I was treated less favourably by the First Respondent than I would have been treated if I were a man. I have suffered what I would not have suffered if I were a man contrary to the Sex Discrimination Act in that:

(i) Because of my sex [… Mr H]. for whose actions the First Respondent is vicariously liable, subjected me [sic] the course of his employment to degrading and detrimental comments and behaviour.

(ii) Further the First Respondent subjected me to my detriment by exposing me to degrading and detrimental remarks and behaviour because of my sex in that:

(a) They were aware at all material times the likelihood because of my sex I would be subjected to degrading and detrimental remarks and

(b) They were aware that I was in fact suffering degrading and detrimental remarks and behaviour because of my sex and

(c) They failed to take any adequate steps to prevent me suffering the said remarks and degrading behaviour in that:

(i) They took no adequate steps to prevent [… Mr H] continuing and repeating his behaviour despite complaints made by me and

(ii) They failed to respond to my informal complaints through supervisors (add details)

(iii) Because of my sex the First Respondent failed to investigate my formal complaint properly in that they:

(a) Did not carry out the investigation with due speed thus causing me further anxiety and distress

(b) Failed to investigate the complaint fully and to interview all the relevant witnesses thus basing any findings against incomplete information

(c) Failed to take appropriate action against [… Mr H]

(d) Failed to advise me appropriately on the merits of my complaint

(e) Failed to comply with Navy guidelines on prevention of harassment

24. My claim against the Second Respondent under the Sex Discrimination Act 1975 is that in the course of his employment:

(a) Because of my sex he subjected me in the course of his employment to degrading and detrimental remarks and behaviour."

We shall refer to those subparagraphs as paragraphs 23 and 24 of the Originating Application because they have been so referred to elsewhere.

3. By a decision of a Chairman of an Employment Tribunal sitting alone at Southampton, the Extended Reasons for which were sent to the parties on 8 May 1999, the Employment Tribunal made the following decision (the First Decision):

"1 The application against the first respondent resulting from the applicant's complaint to them on 3 February 1997 is in time. That complaint does not, taken with the applicant's first complaints of July 1996 or 2 October 1996, form an act extending over a period within the meaning of Section 76 (6) (b) of the Sex Discrimination Act 1975.

2 The Tribunal however extends the time to validate the application in so far as it relates to those first two complaints as it is just and equitable to do so.

3 The application against the second respondent is out of time and the Tribunal does not extend the time to validate the application against him, as it would not be just and equitable to do so."

4. The Extended Reasons for that decision set out a number of the background facts and in our judgment it was correctly common ground between the parties that we should have regard to the findings and reasoning in this decision (and, indeed, all the decisions made by the Employment Tribunal) when considering the appeals that are before us.
5. That decision of the Employment Tribunal dealt expressly with the claim against the First Respondent (the MOD) contained in paragraph 23 (iii) of the Originating Application and the claim against the Second Respondent (Mr H). It did not deal expressly with the claims against the MOD contained in paragraphs 23 (i) and (ii) of the Originating Application. This failure and a refusal by the Chairman to review his decision resulted in an appeal to this Tribunal which was heard on 9 October 1998 (the First Appeal). In his judgment on the First Appeal Morison P said (amongst other things) that:

"Accordingly, it seems to us that what has got to happen in this case is that the learned Chairman who heard the case in March should revisit the question which was asked of him in relation to the MOD's liability under s. 41(1), as I put it, of the Act. That is; can the applicant at the hearing give evidence as to the alleged harassment at the hands of the second respondent who is no longer in the case, and prove harassment against the MOD, in addition to seeking to prove against the MOD a complaint that they failed properly to investigate her complaints when she raised them with them."

6. This is how the "limitation or time issue" in relation to the claims against the MOD came to be reconsidered by the Chairman of an Employment Tribunal sitting at Southampton. The decision of the Chairman together with his Extended Reasons for it were sent to the parties on 11 December 1998. It was in the following terms:

"On further consideration of the preliminary point, in accordance with the order of the Employment Appeal Tribunal dated 9 October 1998 -

(i) the applications against the respondent contained in paragraph 10 of the Originating Application at sub-paragraphs 23(i) and 23(ii) are out of time;

(ii) the Tribunal, however, extends the time to validate sub-paragraphs 23(i) and 23(ii) as it is just and equitable to do so."

7. We shall refer to this decision as the "Decision to Extend Time".
8. The MOD appeal against the Decision to Extend Time and that appeal is the first appeal that is before us. Following receipt of the Decision to Extend Time the Applicant (the Respondent to the appeal against the Decision to Extend Time) by a letter written by her solicitors dated 23 December 1998 invited the Employment Tribunal to review the Extended Reasons for the Decision to Extend Time. That application related to paragraph 26 of the Extended Reasons. A hearing of that application took place on 12 March 1999. Under cover of a letter dated 13 July 1999 the Employment Tribunal sent to the parties two documents:

(a) the first was headed "unanimous decision on review", and

(b) the second was headed "certificate of correction" by which the Employment Tribunal purported to

(i) refuse the application to review the reasons for the Decision to Extend Time on the ground that it had no power to do so, but

(ii) to correct the reasons for that decision under Rule 10 (9) by deleting the penultimate sentence of paragraph 26 of the Extended Reasons.

The letter invited submissions on the "slip rule" issue. The MOD made written submissions thereon. A further hearing was directed and a further decision was given on 2 November 1999 whereby the Decision to Extend Time was corrected under the "slip rule". This decision is the subject of the second appeal that is before us and we shall refer to it as the "Slip Rule Decision".

9. Paragraph 26 of the Extended Reasons for the Decision to Extend Time is in the following terms:

"26 As regards the submissions of the Respondents (the MOD), I accept that there is a clear intention expressed in Section 76 (1) that claims should be begun within three months. I accept that a number of the matters of which the Applicant complains may have occurred as long ago as March 1995. Yet the Respondents did cause enquiries to be made when Mrs Bloomfield-Evans made her complaints and they will be able to utilise these when preparing to defend the case in a way which would not have necessarily been so easy for … (Mr H) ... . Indeed I distinguished the claim against … (Mr H) … from that against the Respondents. The complaints against him are about what he has alleged to have said or done in person. The complaint against the Respondents is how they responded, as his employers, to the complaints of the Applicant. The Respondents admit that the same considerations apply to paragraph 23(ii)."

10. The sentence which the Employment Tribunal removed from that paragraph pursuant to the Slip Rule Decision (or possibly in their minds by the earlier decision dated 14 July 1999) was the penultimate sentence of that paragraph, namely:

"The complaint against the Respondents is how they responded, as his employers, to the complaints of the Applicant."

Classification of the complaints

11. It seems to us that this may have caused some of the problems in this case.
12. As I have mentioned Morison P in his judgment on the First Appeal referred to "The MOD's liability under s. 41(1)". Earlier in his judgment Morison P had said that:

" … It seems to us not as clear as it should be as to what the tribunal meant by the words 'the claim against the Ministry of Defence will proceed'. It could have meant those complaints which had been identified in their previous decision, which as I say relate to paragraph 23 (iii) of the IT1, possibly also 23(ii)(c). But it could also mean that the whole of the claims set out in paragraph 23 were to proceed."

It was this lack of clarity that prompted the order that was made on the First Appeal that the Chairman should reconsider the time issue in respect of the claims against the MOD. This citation from the judgment of Morison P also recognises the potential for argument over the classification of the claim asserted in paragraph 23(ii) of the Originating Application.

13. The position of the MOD is that the claim(s) included in paragraphs 23(i) and (ii) of the Originating Application is/are properly classified as one(s) where the question is whether the MOD is liable for the acts of sex discrimination perpetrated by Mr H and thus as vicarious liability claim(s) (and thus as claim(s)under Section 41 (1) SDA). This appears, for example, from paragraph 22 of the Extended Reasons for the Decision to Extend Time which is in the following terms:

"22 As to paragraph 23(ii), for the reasons set out at paragraph 20 above (paragraph 7 in the respondent's submissions), the claim is out of time. It is not just and equitable to allow the claim to proceed because: the first respondent can only have 'subjected the applicant to detriment by exposing her to degrading and detrimental remarks and behaviour because of her sex' by the alleged acts of [… Mr H]. This is in substance a repetition of the allegation in paragraph 23(i) that the first respondent is vicariously liable for his acts. For the reasons set out at paragraph 21 above, the respondent submits that it is not just and equitable to allow these allegations to proceed. When determining whether it is just and equitable to allow these allegations to proceed, exactly the same considerations apply as to the allegations referred to at paragraph 23(i)."

14. However, as appears from the reference to the submissions made on behalf of the Applicant in paragraph 6 of the Extended Reasons for the Decision to Extend Time the Applicant classified the vicarious liability claim as the claim pleaded in paragraph 23(i) of the Originating Application. This paragraph of the Extended Reasons reflected paragraph 2 of the written submissions put in on behalf of the Applicant which the Chairman considered when reaching the Decision to Extend Time. Paragraph 2 of those submissions is under the heading "The Claim Pleaded at Paragraph 23(i) of the Originating Application" and begins with the following assertion:

"2. The claim pleaded at paragraph 23(i) of the Originating Application ('the vicarious liability claim')."

Later in those submissions there is a heading "The Claim Pleaded at Paragraph 23(ii) of the Originating Application". Under that heading the following submissions are made:

"21. The claim pleaded in paragraph 23(ii) of the Originating Application is that, over the period when the Applicant served on HMS Invincible with [… Mr H] (ie March 1995 to October 1996), the First Respondents subjected her, on the grounds of her sex, to detriment by exposing her to degrading and detrimental remarks and behaviour from [… Mr H] (by, in summary, failing to take any adequate steps to prevent [… Mr H's] behaviour, despite the First Respondent's awareness of the likelihood of, and/or the fact of, such behaviour). …

23. It is, again, accepted that the claim is on its face out of time to the same extent as the vicarious liability claim.

24. The Applicant submits, however, that it is just and equitable to extend time so that the claim may be heard. The circumstances which are relevant to the Tribunal's decision as to whether or not to extend time are precisely those arising in relation to the vicarious liability claim, … ."

There was a footnote to that submission in relation to the use of the word "claim". That footnote was in the following terms:

"Insofar as the complaint overlaps with paragraph 23(iii) of the Originating Application (failure properly to investigate complaints), time has, of course, already been extended by the Tribunal in its decision of 8 May 1998. These submissions address the remainder of the Applicant's claim set out in paragraph 23(ii) (ie excluding the claim in relation to the July and October 1996 and February 1997 complaints)."

15. Earlier in the outline submissions made on her behalf for the First Appeal before this Tribunal (heard in October 1998) the skeleton argument put in on behalf of the Applicant defined the claim in paragraph 23(i) of the Originating Application as the "vicarious liability claim" and the claims under paragraphs 23(ii) and (iii) and as "the complaint investigation claim".
16. In his Extended Reasons for the Decision to Extend Time the Chairman of the Employment Tribunal does not deal with the differences of definition or classification of the claims. However the position of the parties before him was that in respect of the question whether or not it was just and equitable to extend time the same considerations applied to both claims. We add that before us no submissions were made (i) as to the differences in classification or definition referred to above, or (ii) that different considerations applied to the claims in paragraphs 23(i) and (ii) of the Originating Application in respect of the "time or limitation point". We shall return to this later.
17. However, at this stage we repeat that it seems to us that the existence of this difference in definition and classification and the point recognised in the footnote to the written submissions made on behalf of the Applicant that, following the first decision of the Employment Tribunal, the Applicant's claim in respect of the complaints she made in July and October 1996 fall, or may fall, to be treated as part of the complaint in paragraph 23(iii) of the Originating Application may have caused, or at least contributed to, the difficulties that have arisen in connection with paragraph 26 of the Extended Reasons for the Decision to Extend Time.

The course of the hearing before us

18. In his skeleton argument Counsel for the MOD invited us to deal with the appeal against the Slip Rule Decision first. The logic of that submission was that until that appeal had been dealt with the precise content of the Extended Reasons for the Decision to Extend Time could not be known.
19. However, at the outset of the hearing before us we indicated that in our view the better course would be for us to hear the appeal against the Decision to Extend Time first. We were of this view because it seemed to us that:

(a) even if the MOD failed on its appeal against the Slip Rule Decision with the result that the sentence that was removed thereby would not be part of the Extended Reasons, the original inclusion of that sentence therein would be part of the history, as would the fact that the Chairman had recognised that its inclusion was a mistake,

(b) whether or not the sentence removed by the Slip Rule Decision from the last four sentences of paragraph 26 of the Extended Reasons for the Decision to Extend Time is included or excluded within that paragraph, it seems to us that the last part of that paragraph is an example of 'Homer having nodded', and

(c) we were doubtful whether the result of the appeal against the Slip Rule Decision would be a determinative factor in the appeal against the Decision to Extend Time.

20. Both parties through their Counsel accepted that this was a sensible procedure for us to adopt. We adopted it on the basis that if the argument on the appeal against the Decision to Extend Time demonstrated that it was necessary for us to consider the appeal against the Slip Rule Decision we would go on and do so. Those arguments did not demonstrate that it was necessary for us to do this and indeed, neither Counsel submitted that we should do so.
21. In those circumstances we heard no oral argument on the appeal against the Slip Rule Decision, and we have concluded that the most appropriate course for us to take is to dismiss that appeal on the basis that (subject to any direction from the Court of Appeal) the MOD can appeal that decision if the Applicant appeals our decision on the appeal against the Decision to Extend Time.

Our approach on the appeal against the Decision to Extend Time

22. It is apparent, and was accepted on behalf of the MOD, that the Chairman of the Employment Tribunal had the correct statutory test in mind (see, for example, paragraph 10 of the Extended Reasons and the references therein to Section 76(5) SDA and to British Coal Corporation v Keeble [1997] IRLR 336).
23. It was also (in our judgment correctly) accepted by Counsel for the MOD that as the Appellant against an exercise the discretion conferred by Section 76(5) SDA by the Chairman of an Employment Tribunal he had a difficult task (see, for example, Hutchison v Westward Television Ltd [1977] ICR 279, in particular, at page 282 E to F where it is stated:

"Because it is such a wide discretion conferred upon an industrial tribunal, the task which an appellant has in such a case is a heavy one. Really he must show, if he is to succeed upon appeal, that the industrial tribunal demonstrably took a wrong approach to the matter, or that they took into account facts which they ought not to have done, or that they failed to take into account facts which they should have done, or, as a last resort which is always open upon an appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed tribunal could have reached it."

There it is made clear, and we accept, that the task of an Appellant in establishing that the Employment Tribunal has erred in the exercise of the equivalent discretion conferred by Section 68(6) of the Race Relations Act 1976 and thus the "just and equitable test" is a heavy one. The grounds upon which an appeal can succeed when an Employment Tribunal has identified the right test are however identified.

24. By reference to those grounds the focus of the appeal was as follows:

(a) in identifying what he described as the most cogent points set out in the submissions of the parties and thus as the most cogent points relating to his decision and thus his exercise of the discretion conferred by Section 76(5) SDA the Chairman of the Employment Tribunal misdirected himself by (i) making or appearing to have made errors of fact, and further or alternatively (ii) wrongly or inappropriately taking into account and giving particular weight to some factors and leaving out of account other factors; and

(b) in any event the decision reached by the Chairman of the Employment Tribunal was one which was plainly wrong and outside the range of decision open to an Employment Tribunal properly directing itself in the exercise of its discretion.

In addition it was submitted that the misdirections show that the Chairman applied the wrong approach in law to the exercise of his judicial discretion and in particular that (i) he failed to properly analyse the periods of the delays, the reasons for the delays and the effects of an extension, and (ii) he took into account as cogent points matters that were irrelevant or neutral.

25. The focus of the oral submissions was on paragraph 25 of the Extended Reasons. In the main the earlier part of the Extended Reasons consist of a recitation of the written submissions made by both sides. It was accepted before us that those submissions were accurately summarised in the Extended Reasons. Paragraph 25 is the first paragraph under the heading "The Tribunal's Conclusions" and it is in the following terms:

"25. The Originating Application is out of time as far as paragraph 23(i) and paragraph 23(ii) are concerned. Under section 76(5) there is no burden of proof and I have to determine the question in accordance with the words of the subsection. The discretion, as noted above, is as wide as the discretion conferred by section 33 of the Limitation Act. The most cogent points set out in the submissions of the parties appear to me to be as follows: (i) the Applicant was twice given inaccurate legal advice. She submitted her claim within three months [on] her release from the Navy in accordance with the second set of legal advice which she received (ii) her internal grievance was concluded on 16 December 1997 which was coincidentally the same day as that of presentation of her Originating Application (iii) a greater part of the time between October 1996 and the presentation of the Originating Application in December 1997 is accounted for by the time taken by the first respondent at various levels to consider her complaints (iv) during October 1996 to February 1997 the Applicant became ill (v) as I noted at paragraph 13 of the Tribunal's earlier decision, the delay in bringing the application 'may be laid entirely at the door of the first respondent and of the Solicitors consulted by the Applicant' (vi) the question of prejudice if I decline to exercise my discretion to extend the time in respect of the vicarious liability claim; Mrs Bloomfield-Evans will have lost for good the opportunity to pursue this part of her claim. If I exercise my discretion in her favour, the Respondents will have a full opportunity to defend the claim and will be able to utilise the information which they obtained in the course of investigating her complaints (see paragraph 14c above). Moreover because the Respondents have either disciplinary control over potential witnesses remaining in their service and will presumably have contact details for witnesses who have subsequently left their service. There has been no suggestion from the Respondents that any relevant witness is for any reason uncontactable."

I have already set out paragraph 26. The remaining paragraphs under the heading "The Tribunal's Conclusions" are as follows:

"27. I have a wide discretion under Section 76 (5). I find the submissions on behalf of the Applicant more persuasive than those on behalf of the Respondent.

28. In exercise of my discretion I extend the time to validate the complaints as it is just and equitable to do so."

26. As appears therefrom in paragraph 25 of the Extended Reasons the Chairman set out five matters which appear to him to be the most cogent points set out in the submissions of the parties. It follows that these are the factors to which he gave particular weight. In our judgment it was correctly not argued that the fact that he did not mention other points raised in the submissions did not mean that he did not take them into account (or that it could be submitted that he did not do so). In this context we naturally accept that the Chairman did not have to set out every aspect of his reasoning (see, for example, Holister v National Farmers Union [1979] ICR 542 at 552 H to 553 D and Meek v City of Birmingham District Council [1987] ILRLR 250 at paras. 8 to 11 of the judgment of Bingham LJ).

The points identified by the Chairman of the Employment Tribunal as the most cogent points

27. Before dealing with these in turn it is appropriate to set out some dates. The Chairman of the Employment Tribunal did this in his Extended Reasons sent to the parties on 8 May 1998. These Extended Reasons relate to his first decision on the "limitation or time points". It was by this decision that he decided it was not just and equitable to extend time in respect of the claims made by the Applicant against Mr H. The dates are:

(a) The Applicant joined the Royal Navy on 14 February 1991.

(b) From 8 March 1995 until 12 October 1996 she served in HMS Invincible. It is during this period that she complains that she suffered harassment on the part of Mr H. This came to an end when she was posted elsewhere.

(c) The Chairman identified three complaints made by the Applicant about the conduct of Mr H. The first complaint (or complaints) was in July 1996 and the second was in October 1996. The third was in February 1997. She made this complaint after being told by her Divisional Officer to make a formal complaint.

(d) The third complaint was made after she had left HMS Invisible and at a time when she alleges she found that her confidence and performance had been affected by the events of which she complained and she had become ill. The Chairman's notes of evidence show that she had become ill by Christmas and by February 1997 she felt she could not cope any more and that as she felt that the navy had done nothing to support her or assist in her complaint there was no alternative to handing in her notice..

(e) It was common ground before us that in or about October 1996 the Applicant had decided not to pursue her complaints further. In the Extended Reasons for his first decision the Chairman put the matter in the following terms:

"She decided that she had to put matters behind her and try to get on with things and left HMS Invisible on the following day (7 October 1996) to join HMS Collingwood after a period of leave"

(f) In February 1997 the Applicant also requested to be withdrawn from her course in HMS Collingwood and submitted an 18 months' notice of discharge with effect from 6 February 1997.

(g) In fact the Applicant did not serve 18 months' notice and she regarded 18 September 1997 as her date of release (but her final formal discharge came later on 11 November 1997).

(h) On 23 September 1997 the Naval Personnel Secretariat wrote to the Applicant to confirm that preparations to lay her complaint before the Board were almost complete and they sent her a copy of the brief. It was common ground before us that the content of that brief was favourable to the Applicant and accorded with the decision the Board ultimately reached.

(i) In early October 1997 the Applicant's present solicitors (who were the third firm of solicitors she had consulted) wrote to the MOD threatening proceedings under the SDA.

(j) The Originating Application was issued on 16 December 1997.

(k) On 20 January 1998 the Applicant was notified that her complaint had been upheld by the Admiralty Board who offered her their sincere apologies. The Admiralty Board upheld her complaint both in respect of the allegations of harassment against Mr H and the failure to carry out proper investigations.

(l) In addition it was common ground before us that following this decision of the Admiralty Board Mr H also made a complaint which was upheld by the Admiralty Board. The nature of his complaint was that he had not been given the opportunity to make representations to the Admiralty Board in their consideration of the Applicant's complaints. It was common ground before us that the Admiralty Board dealt with the Applicant's complaint on paper only.

Cogent point (i): The Applicant was twice given inaccurate legal advice. She submitted her claim within three months of her release from the Navy in accordance with the second set of legal advice which she received.

28. This relates back to the following finding in the first decision of the Chairman of the Employment Tribunal:

"Mrs Bloomfield-Evans twice took legal advice during 1997. In February when she handed her notice in she consulted a Solicitor who advised that she could not pursue any civilian action until she had either exhausted the naval procedures or left the Navy. It was not until she saw that Solicitor that she was aware that she could make a claim to an Industrial Tribunal, subject to those 2 points. Having secured her release, she took further advice from another Solicitor, but it was of similar effect to that which she had received from the first Solicitor. However, she was also informed of the 3 month time limit for making a complaint."

As appears from that finding (and the chairman's notes of evidence) the Applicant received such advice from the second solicitor after she was released from the navy. This reference to release must be the date she regarded as her date of release (i.e. 18 September 1997). This is because by (at the latest) early October 1997 she had consulted her present solicitors and was aware that she could make a claim before the internal grievance procedure was "exhausted". However we note that in paragraph 10.1 of the "Written Submissions on behalf of the Applicant" to the Chairman dated 18 October 1998 and made as a result of the First Appeal (heard by this Tribunal on 9 October 1998) the date of the second piece of advice is said to be 23 June 1997 and that she was then advised that she had three months from either leaving the navy or the completion of the internal complaint to present a claim. We however add that there was no suggestion before us that the Applicant's present solicitors ever advised the Applicant that her claim could not be made until after the internal complaint had been completed.

29. The MOD submit that the failure of the Chairman of the Employment Tribunal to refer to this third piece of advice received by the Applicant is a material and important omission.
30. Having particular regard to the second sentence in this cogent point, we agree. This is because it is apparent that over the period from about early October until 16 December 1997 the Applicant was not acting in reliance upon the first or second piece of advice she received but had instructed, and was relying upon, her present solicitors. We were told that her evidence was to the effect that the delay from October through to December arose because she left matters to those solicitors as to the drafting and presentation of her claim.
31. The strong inference from this first cogent point (read alone or with the fifth cogent point) is that in exercising his discretion the Chairman proceeded on the basis that in presenting her claim when she did the Applicant was still acting on the wrong advice received from the first and second firms of solicitors she consulted. This is wrong and it follows that this first cogent point is flawed because it fails to recognise that from October 1997 the Applicant had received further advice but did not issue her proceedings promptly.
32. We therefore agree with the submission made by counsel for the MOD that this first cogent point appears to proceed on an error of fact, and further or alternatively it is flawed because it fails to take into account the later and correct advice. That is not to say that the earlier and incorrect advice is irrelevant. Plainly it is not because it is the primary reason advanced by the Applicant for the delay. The force, validity and effect of that reason should however be assessed in the light of the fact that the Applicant received advice from a third firm of solicitors (who remain her solicitors) which did not continue the errors in the earlier advice.
33. In this context we also note that (a) the Chairman's notes of cross examination of the Applicant include a note that she had two options one was to leave the navy and the other to await an internal investigation and that she did not know why Originating Application was put in before the internal complaint was finally dealt with, and (b) in the finding set out above, which is in his earlier decision, the Chairman records the first piece of advice in the alternative, namely "until she had either exhausted the naval procedures or left the Navy" and the second piece of advice as being to similar effect with the addition that there was a three month time limit. It follows from the Chairman's finding that by the stage of the second piece of advice the Applicant regarded herself as released from the navy but no mention is made in cogent point (i) of the internal grievance. Thus the Chairman seems (a) to be regarding the effect of the wrong advice as being that it provided the reason why the Applicant did not bring her claim until she left the navy, and (b) to have given the Applicant credit for bringing the proceedings within three months of leaving the navy.
34. In respect of this cogent point it was submitted that it also applied to the claim against Mr H and that in respect of the claim the Chairman reached then opposite conclusion on whether it would be just and equitable to extend time. This point was made in respect of a number of the other cogent points identified by the Chairman. In our judgment with the qualification mentioned below we do not think that this point has great force because to put it crudely the first decision in respect of the claim against Mr H could have been flawed rather than this one. The qualification is that the decision in respect of Mr H introduces a need to consider the differences between the positions of the two Respondents and to explain why different results are reached. There plainly are some differences but equally there is common ground not least because the claims are based on the actions of Mr H.

Cogent point (ii):  her internal grievance was concluded on 16 December 1997 which was coincidentally the same day as that of presentation of her Originating Application

35. As a free standing point we agree with the submission made on behalf of the MOD that this point is irrelevant because the Applicant did not know the date that internal grievance was concluded. This date (as opposed to the existence of the internal grievance) had nothing to do with the date upon which the Applicant presented her claim. The fact that the internal grievance was concluded on the same day as she presented her complaint is as the Chairman said coincidence. The date of presentation of the Originating Application is plainly relevant but the submissions made on behalf of the Applicant that we have seen do not explain and the Chairman does not explain why this coincidence is a relevant or cogent point. We do not understand how the Chairman could properly have thought that such coincidence was of itself a cogent point. In our judgment if he did so (which appears to be the case) by so doing he misdirected himself in the exercise of his discretion.
36. However in our judgment the fact that the Originating Application was issued before the Applicant (and her present solicitors) knew of the outcome of the internal grievance does have a significance in that it demonstrates that the Applicant was not delaying the presentation of her Originating Application until after the outcome of her internal grievance was known and thus that the Applicant and her present solicitors were not awaiting the outcome of the internal grievance before deciding to commence and/or issue proceedings. In this context we repeat that the Chairman's notes of evidence record that the Applicant said in cross examination that she did not know why her Originating Application was issued before her internal complaint was finally dealt with. It should also be noted that the Originating Application was issued just inside the three month period from the date that the Applicant regarded as her date of release from the navy (18 September 1997) albeit that it was not asserted that her third and present solicitors thought that proceedings could not be brought until she left the navy. These are factors against extending time.

Cogent point (iii): a greater part of the time between October 1996 and the presentation of the Originating Application in December 1997 is accounted for by the time taken by the first respondent at various levels to consider her complaints

37. In paragraph 4.2.1 of the "Outline Submissions on behalf of the Applicant for Preliminary Hearing 25/iii/98" (but dated 12 June 1998) and paragraph 11.1 of "Written Submissions on behalf of the Applicant" to the Chairman dated 18 October 1998 and made as a result of the First Appeal (heard by this Tribunal on 9 October 1998) this is relied on as showing the reason for the delay. The Chairman's notes of her evidence together with the further submissions in paragraph 11 (see in particular paragraphs 11.4 and 11.5) and the Chairman's findings provide an unclear picture as to how much of the Applicant's thinking related to the fact that she was still in the navy and how much to the fact that the internal complaint had not been finally dealt with. The Chairman records the first advice given to the Applicant by solicitors she consulted in the alternative and we shall assume in her favour that until the Applicant left the navy part of her reason (based on advice) for not issuing proceedings related to the internal grievance procedure. We accept that from receipt of that first piece of advice in February 1997 until 18 September 1997 she would not have known whether that grievance procedure would be concluded before or after she left the navy. However crucial point (iii) refers to the internal process without linking it to the Applicant's reason(s) for not issuing her proceedings earlier, or making any mention of (a) the period between October 1996 and February 1997 when the Applicant had decided not pursue her complaint and her evidence (and the Chairman's finding) was to the effect that she did not know that she could make a claim whilst she remained in the navy, and (b) the period from 18 September to 16 December 1997. In our judgment this is an example of a failure by the Chairman to properly analyse the delay and the reasons for it.
38. There are links between this cogent point and (a) the point made in paragraph 34 above, (b) the first and fifth cogent points, and (c) a point made before us (and earlier written submissions made on behalf of the Applicant but which is not expressly reflected in the Chairman's cogent points) that if proceedings had been issued before the result of the internal grievance was known they would have been stayed either by consent, or order, to await the outcome of the internal grievance.
39. It follows from the point made in paragraph 36 above that the "stay point" was not something that was in the minds (or the forefront of the minds) of the Applicant and her present solicitors at the time the Originating Application was being prepared (i.e. from about October 1997 to mid December 1997 which was all after the date that the Applicant regarded as her date of release).
40. We accept that the "stay point" and the connected point that the Applicant had initiated an internal grievance procedure which was continuing are relevant albeit that the weight placed on them by the Applicant is unclear (see for example Gonnella v The Benefits Agency EAT/1156/98 at paragraphs 20, 21 and 27).
41. However in our judgment the "stay point" and the connected point that it was, or would have been, reasonable and sensible for the Applicant to await the outcome of the internal grievance procedure before issuing her claim are poor ones. This is because:

(a) the Applicant had decided to leave, and had given her notice to leave, the navy in February 1997. So she was not seeking a result from the internal grievance procedure that would promote or assist her future career in the navy,

(b) the grievance procedure was therefore not going to provide her with a remedy which would be equivalent to, or in her eyes a satisfactory substitute for, a favourable decision of an Employment Tribunal, and

(c) the internal grievance procedure was conducted on paper and was not going to produce any significant additional information that would assist the Applicant in advancing her claim.

In our judgment it is most unlikely that a stay would have been agreed to, or ordered, if the Applicant had issued her proceedings before the conclusion of the internal process.

42. It follows that in our judgment this cogent point adds nothing to the point that a reason advanced by the Applicant for not issuing her proceedings earlier was the advice she had received from solicitors and is therefore given inappropriate weight because it does not reflect a proper analysis of the reasons for, and the periods of, delay. The Chairman's finding as to that first advice is in the alternative and we have accepted that the existence and continuation of the internal process is included within the reasons advanced by the Applicant for not issuing proceedings earlier. But there is nothing in the Chairman's findings to suggest that the Applicant would have left the navy earlier if the internal grievance had been concluded earlier, or that if it had been concluded earlier she would (or thought that she would) have issued her proceedings before she left the navy. From early October 1997 (when she consulted her present solicitors) the Applicant knew that she could issue proceedings without awaiting the result of the internal complaint.

Cogent point (iv): during October 1996 to February 1997 the Applicant became ill

43. We accept that this is a factor to be taken into account. But by identifying it without recognising that (as set out in the chronology):

(a) the Appellant had decided in October 1996 to try to put matters behind her and not to pursue her complaints further,

(b) she made her third complaint in February 1997 after being told by her Divisional Officer to make a formal complaint,

(c) the Chairman's finding quoted under cogent point (i) is that before February 1997 the Applicant was not aware that she could bring a claim before an Employment Tribunal, and

(d) the third complaint was made after she had left HMS Invisible and was at a time when she alleged she found that her confidence and performance had been affected by the events of which she complained,

the Chairman gives it inappropriate weight and this is another example of a failure to properly analyse the periods of delay and the reasons for them.

Cogent point (v): as I noted at paragraph 13 of the Tribunal's earlier decision, the delay in bringing the application 'may be laid entirely at the door of the first respondent and of the Solicitors consulted by the Applicant'

44. We repeat what we have said in relation to cogent points (iii) and (iv). In our judgment they also apply to this cogent point. For example it simply cannot be said that the delay from October 1996 to February 1997 can be laid at the door of the solicitors consulted by the Applicant received from solicitors or the MOD (the first respondent) save in the sense that the Applicant says that during this period she became ill because of her earlier treatment and lack of support from the navy which allegations constitute bases of her claims. Also there is no suggestion that the MOD could, or should, have advanced the Applicant's date of release from the navy.
45. In any event this cogent point in respect of the Applicant (as opposed to the second respondent Mr H) indicates a measure of shared responsibility for the delay. The Applicant cannot escape responsibility vis a vis the MOD for the incorrect advice given to her by her solicitors.

Cogent point (vi): the question of prejudice if I decline to exercise my discretion to extend the time in respect of the vicarious liability claim; Mrs Bloomfield-Evans will have lost for good the opportunity to pursue this part of her claim. If I exercise my discretion in her favour, the Respondents will have a full opportunity to defend the claim and will be able to utilise the information which they obtained in the course of investigating her complaints (see paragraph 14c above). Moreover because the Respondents have either disciplinary control over potential witnesses remaining in their service and will presumably have contact details for witnesses who have subsequently left their service. There has been no suggestion from the Respondents that any relevant witness is for any reason uncontactable."

46. In our judgment it was correctly common ground that the first part of this cogent point was a neutral point which underlies every exercise of discretion to extend time when an applicant issues proceedings out of time. It follows in our judgment that by including this neutral point in his cogent points the Chairman misdirected himself.
47. The ability for there to be a fair trial is an important factor to be taken into account. This is a two way process and applied equally when an extension was being considered to bring the claims against Mr H. It is thus in this respect that the divergence in the conclusions reached by the Chairman on extending time is perhaps at its most stark and there is a need to explain why opposite conclusions were reached.
48. The reality of the claims based on Mr H's alleged harassment is that whether or not he is a respondent the primary witnesses will be the Applicant and Mr H and others who it is said were present at the times the alleged incidents took place. If Mr H had remained a respondent he and the MOD would both have been respondents to the same claims based on Mr H's alleged harassment of the Applicant and therefore Mr H would have had the full benefit of the product of the MOD's disciplinary control over witnesses and resources to prepare evidence. In our judgment it follows that the distinction made by the Chairman in his Extended Reasons for both his decisions on the extension of time based on the respective abilities of the two respondents to contact witnesses is flawed. In reaching this view we have had regard to (i) the point made in written submissions on behalf of the Applicant that the MOD do not plead a positive case in respect of the harassment alleged against Mr H and seek to rely of Section 41(3) SDA., and (ii) the point that the Admiralty Board did not hear oral evidence and also upheld a complaint by Mr H.
49. If looked at separately the MOD as a large organisation does not face the prospect of the strain and upset of proceedings involving allegations of harassment that both the Applicant and Mr H would face. It is however wrong to approach the question of extension of time in respect of the claim against the MOD either (a) on a different basis to that applied in considering the claim against MR H when considering whether there can be a fair trial, or (b) on the basis that it is a claim against a large organisation which will not suffer distress because an extension would mean that Mr H's conduct would be investigated to an equal extent as if he was still a respondent and findings relating to it will be made. Mr H is therefore equally at risk of adverse findings and the effect they would have on his reputation and feelings. A difference would be that he would not be liable in damages but the reality is that if he remained a respondent it is likely that it would be the MOD who would meet all (or the great bulk) of any damages awarded.
50. This cogent point also fails to take into account:

(a) the point that the claim will depend on the recollection of events which the Chairman took into account when refusing to extend time for the claim against Mr H, and

(b) the point that paragraph 16 of the particulars of the Applicant's case annexed to her IT1 asserts and her earlier statements were incomplete and this is confirmed in paragraph 27 of the Chairman's notes of evidence.

51. In our judgment it follows that this cogent point is flawed because it contains the misdirection referred to in paragraph 45 above and in considering the issue of whether there can be a fair trial and the effects of an extension (and thus whether it would be just and equitable to order one) it places emphasis on a point relating to the respective abilities of the two respondents that is flawed and leaves other relevant points out of account.

Conclusion on the appeal against the Decision to Extend Time

52. In our judgment for the reasons we have set out in our comments concerning the cogent points identified by the Chairman the MOD have established that this is an exceptional case in which on the grounds specified in paragraph 24(a) above this appeal against the exercise of the discretion conferred by Section 76(5) SDA by the Chairman should succeed.
53. In our judgment the misdirections, errors and omissions we have identified in respect of the cogent points and our comments thereon show that the Chairman applied the wrong approach in law to the exercise of his judicial discretion and in particular that (i) he failed to properly analyse the periods of the delays, the reasons for the delays and the effects of an extension, and (ii) he took into account as cogent points matters that were irrelevant or neutral.
54. In reaching this conclusion we have been very conscious of the point that we should read the Extended Reasons generously and should not take fine or narrow points, or points that a failure to mention something founds an argument that it was not taken into account. However we have concluded that the totality of the points we have made in respect of the cogent points identified by the Chairman leads to the result that we should allow this appeal and set aside the decision he reached in the exercise of his judicial discretion to extend time.

Remission

55. In the absence of agreement that we should decide the issue as to whether time for bringing the claims should be extended ourselves we could only do so if we reached the view that any Employment Tribunal properly directing itself on the facts found by the Chairman and the undisputed facts would be bound to reach a particular conclusion (see for example Kapadia v London Borough of Lambeth [2000] IRLR 699).
56. During the hearing counsel for the Applicant took instructions and confirmed that the Applicant agreed that if the MOD's appeal succeeded we should not remit the issue of whether her time should be extended but should decide it ourselves. This had been and remained the MOD's position. It was thus agreed that we should (in pursuance of s. 35 Employment Tribunals Act 1996) decide the issues on extension of time that were before the Chairman as a result of the First Appeal (heard by this Tribunal in October 1998) on the basis of the facts found by the Chairman and the undisputed facts.

Our Decision

Classification of the complaints

57. Firstly we return to the classification of the complaints and the identification of the claims we are dealing with (see paragraphs 2, and 9 to 17 above). As mentioned in paragraph 14 above the Applicant's submissions which the Chairman considered when reaching the Decision to Extend Time recognised that there was, or may be, an overlap between the claims pleaded in paragraphs 23(ii) and the claim pleaded in paragraph 23(iii) (in our judgment fairly described in those submissions as a claim that there was a failure properly to investigate complaints). We agree. The possibility for confusion and thus the need for definition is added to by paragraph 2 of the decision sent to the parties on 8 May 1999 (see paragraph 3 above) (the First Decision). We repeat that paragraphs 1 and 2 of that order are in the following terms:

"1 The application against the first respondent resulting from the applicant's complaint to them on 3 February 1997 is in time. That complaint does not, taken with the applicant's first complaints of July 1996 or 2 October 1996, form an act extending over a period within the meaning of Section 76 (6) (b) of the Sex Discrimination Act 1975.

2 The Tribunal however extends the time to validate the application in so far as it relates to those first two complaints as it is just and equitable to do so.

Paragraph 2 thereof extends time for bringing claims based on earlier complaints referred to in paragraph 1 (the "Earlier Complaints").

58. The Earlier Complaints are the complaints of July and October 1996 referred to in (i) paragraph 4(b) of the Extended Reasons for the First Decision, (ii) in respect of the July complaint(s) in paragraphs 13 and 14 of the statement annexed to paragraph 10 of the Applicant's IT1 which "pleads her case", and (iii) paragraph 4 of the Grounds of Resistance which refers to a formal complaint on 2 October 1996. The Grounds of Resistance also refer to a later formal complaint in February 1997 (the Chairman in the Extended Reasons for the First Decision says this was made on 3 February 1997 but the Grounds of Resistance seem to indicate that it was made slightly later).
59. As we read the Extended Reasons for the First Decision the Chairman treated the third complaint made by the Applicant in February 1997 (see paragraphs 4(d) and (e) of the Extended Reasons) as the formal complaint referred to in paragraph 23(iii) although it does not seem to be referred to in the Applicant's statement annexed to her IT1. Indeed much of the problems over definition flow from the lack of precision in this document. The complaint in February 1997 was a formal complaint but so was the complaint made on 2 October 1996.
60. The complaint(s) in July 1996 would be within the complaints referred to in paragraph 23(ii)(c)(i) and/or (ii). The formal complaint made in October 1996 might be within paragraph 23(ii)(c)(i) although as the Applicant left Invincible very shortly after this complaint was made it is not clear what steps the MOD could have taken as a result of it in respect of the conduct of Mr H towards the Applicant. It is also the case that paragraph 23(ii)(c) (and perhaps paragraph 23(ii) as a whole) could cover a claim based on an alleged failure to properly investigate those complaints. In our judgment this is, and is the true extent of, the overlap or potential overlap between paragraphs 23(ii) and (iii).
61. It is unclear what is covered by the reference to "formal complaint" in paragraph 23(iii).
62. In paragraph 12 of the Extended Reasons for the First Decision the Chairman stated:

I consider that it is in the interests of justice that the whole course of the way in which the first respondents dealt with applicants successive complaints should be put before a full hearing. These are important issues affecting conduct of such complaints in a public service.

In our judgment when this passage is read in context the Chairman is there deciding that the Earlier Complaints should be included in the claim in paragraph 23(iii) which (as we have said) can be described as a claim that the MOD failed properly to investigate complaint(s).

63. In our judgment it follows that the correct way to give effect to paragraph 2 of the First Decision is to treat it as amending paragraph 23(iii) by including therein the Earlier Complaints and the formal complaint made in February 1997 rather than seeking to extract and isolate from the claim in paragraph 23(ii) one based on an alleged failure to properly investigate some or all of those complaints.
64. We proceed on that basis and thus on the basis that paragraph 23(iii) has been extended and amended by the First Decision to reads as follows:

Because of my sex the First Respondent failed to investigate the complaints made by me (i) in July 1996 and referred to in paragraphs 13 and 14 hereof, (ii) my formal complaint made in October 1996 and (iii) my formal complaint made in February 1997 properly in that they:

(a) Did not carry out the investigation with due speed thus causing me further anxiety and distress

(b) Failed to investigate the complaint fully and to interview all the relevant witnesses thus basing any findings against incomplete information

(c) Failed to take appropriate action against [… Mr H]

(d) Failed to advise me appropriately on the merits of my complaint

(e) Failed to comply with Navy guidelines on prevention of harassment

For the avoidance of doubt we give leave to make that amendment without any re-service.

65. We repeat that the submissions made on behalf of the Applicant to the Chairman when he was considering the Decision to Extend Time included the following submissions and footnote (see paragraph 14 above):

"21. The claim pleaded in paragraph 23(ii) of the Originating Application is that, over the period when the Applicant served on HMS Invincible with [… Mr H] (ie March 1995 to October 1996), the First Respondents subjected her, on the grounds of her sex, to detriment by exposing her to degrading and detrimental remarks and behaviour from [… Mr H] (by, in summary, failing to take any adequate steps to prevent [… Mr H's] behaviour, despite the First Respondent's awareness of the likelihood of, and/or the fact of, such behaviour). …

23. It is, again, accepted that the claim is on its face out of time to the same extent as the vicarious liability claim.

24. The Applicant submits, however, that it is just and equitable to extend time so that the claim may be heard. The circumstances which are relevant to the Tribunal's decision as to whether or not to extend time are precisely those arising in relation to the vicarious liability claim, … ."

The footnote to that submission in relation to the use of the word "claim" was in the following terms:

"Insofar as the complaint overlaps with paragraph 23(iii) of the Originating Application (failure properly to investigate complaints), time has, of course, already been extended by the Tribunal in its decision of 8 May 1998. These submissions address the remainder of the Applicant's claim set out in paragraph 23(ii) (ie excluding the claim in relation to the July and October 1996 and February 1997 complaints)."

We have defined that overlap and given effect to it by extending and amending the claim in paragraph 23(iii). The has the consequences that (a) if the Applicant's time for bringing the claims in paragraph 23(ii) is not extended the overlap is preserved by its inclusion in paragraph 23(iii), and (b) the "remainder of the Applicant's claim in paragraph 23(ii)" is that claim as asserted on the basis that it does not include any aspect thereof now included in paragraph 23(iii). We agree that the description in paragraph 21 of this quotation from the Applicant's submissions is a fair description of such balance of the claims in paragraph 23(ii) and that it follows that the circumstances that are relevant to the decision whether or not to extend time are the same as in respect of (a) the claim in paragraph 23(i), which it was common ground (and plainly is) a vicarious liability (or a s. 41(1) SDA) claim, and (b) the claims in paragraph 23(ii).

66. An alternative way of putting this is that we agree with the submissions made on behalf of the MOD to the Chairman of the Employment Tribunal, and to us, that with the exception of the elements of the claim pleaded in paragraph 23(ii) and in particular paragraph 23(ii)(c)(i) that the MOD failed to properly investigate the Applicant's complaint(s) (which we have now treated as being added to paragraph 23(iii)) the claims in paragraphs 23(i) and (ii) can appropriately be described as vicarious liability claims.
67. Using that description we have concluded that time for bringing the vicarious liability claims should not be extended. This has the result that the only claims that can be pursued are those in paragraph 23(iii) on the basis that it has been extended and amended by the First Decision in the manner set out in paragraph 64 above.

The test for extending time

68. This is contained in Section 76(5) SDA and is set out in paragraph 1 of this judgment. It requires us to consider if in all the circumstances of the case it would be just and equitable to extend time. The statutory formula is a wide one which confers a judicial discretion. In Harvey at paragraph L 559 the authors set out a non-exhaustive list of factors which may prove helpful in assessing individual cases. We have had regard to these. In our view the reference therein to the conduct of the parties covers an assessment of the periods of delay and the reasons for them. In any event that is relevant.

The date at which the assessment of whether it is just and equitable to extend time should be made

69. In our judgment the date for assessment is the date on which the Applicant issued her proceedings (i.e. 16 December 1997).

Continuing Act

70. Oral submissions were not made to us that the relevant acts complained of were acts extending over a period for the purposes of Section 75(6) SDA. Written submissions were made to the Chairman and to us to this effect. We do not accept them. In our view no relevant policy was identified by the Applicant. In any event the acts on Invincible came to an end in October 1996.

The acts complained of and the periods of delay

71. The assessment of the overall question on extension of time and the assessment of delay should be considered having regard to the dates of the relevant acts complained of. These relate to the Applicant's service on Invincible from 8 March 1995 to 12 October 1996. In paragraph 2 of the statement annexed to her IT1 the Applicant says this:

On 8^th March 1995 I joined HMS Invincible and throughout the period from the day I joined until the day I left the service I was subjected to various degrees of sexual harassment at work. The Second Respondent [Mr H] was my Chief on HMS Invincible and was responsible for subjecting me to harassment. The First Respondent who employed [Mr H] failed to take my complaints seriously, and advised me that I did not have a valid complaint until 23^rd September 1997.

It is apparent from this paragraph that acts complained of go back to March / April 1995. As appears above the complaints identified are in July 1996 and October 1996 and (after the Applicant had left Invincible) in February 1997. It is also apparent from paragraph 23(ii)(c)(ii) that the draftsman thereof wanted details of informal complaints to be added but they were not. As we have also mentioned in paragraph 16 of the statement annexed to her IT1 the Applicant asserts that the statement she refers to therein (which it appears therefrom was prepared after the July 1996 complaint(s) and thus related to the October 1996 complaint) was not complete. This is confirmed in paragraph 27 of the Chairman's notes of evidence. It follows that:

(a) although many of the matters the Applicant complained about was recorded by October 1996 not all of them were,

(b) her claims in paragraphs 23(i) and (ii) will be based on her recollection, and the recollections of others, of events from March / April 1995, and

(c) it is at least possible that some of the events the Applicant would seek to rely on have not as yet been recorded in her statements relating to her complaints and the statement annexed to her IT1.

72. For the purposes of analysis we consider that it is convenient to divide the periods from the first act complained of until the issue of proceedings into the following four parts:

(a) the period of service on Invincible (March 1995 to October 1996),

(b) the period from the Applicant leaving Invincible until she decided to give notice to leave the navy and to make a further complaint (October 1996 to February 1997),

(c) the period from her decision to leave the navy and to make that further formal complaint until the date she regarded as her date of release from the navy (February 1997 to 18 September 1997), and

(d) the period from 18 September 1997 to 16 December 1997 when the Originating Application was issued.

73. We have already commented on these periods when dealing with the Chairman's cogent points.
74. During the first period (March 1995 to October 1996) the statutory time limit in respect of a number of the acts complained of would have run out. However if at the end of it the Applicant had brought proceedings it may well have been that her time would have been extended in respect of the "time expired" acts complained of. In our view the main relevance of the earlier acts is that they would form part of the subject matter of the Applicant's claims in paragraphs 23(i) and (ii) if time was to be extended.
75. In our judgment an important factor is that during the second period (October 1996 to February 1997) the Applicant had decided to "put matters behind her". The Chairman also found that during this period she was not aware that she could bring proceedings.
76. During this period we recognise that the Applicant was or became ill and distressed and we express our sympathies to her as to this. But this was not the reason she did not issue proceedings during it. Rather it seems on the findings of the Chairman that it was a factor in her decision in February 1997 to leave the navy, to bring her internal formal complaint and to seek advice from solicitors. It appears from the Chairman's notes of evidence and his findings that this was the first occasion upon which she received advice from solicitors. By February 1997 the statutory three month period in respect of all events that occurred on Invincible had expired.
77. It follows that until February 1997 the underlying reason why proceedings were not issued (or further internal complaint was not made) was that the Applicant had decided to "put matters behind her". Additionally she was not aware that she could bring proceedings.
78. By the beginning of the third period (February 1997 to 18 September 1997) the Applicant had decided to leave the navy and after speaking to her Divisional Officer to make a formal complaint. Also at the beginning of this period she was given incorrect advice by a firm of solicitors.
79. It seems from the Chairman's notes of evidence and his findings that it was not until just after the end of this period (i.e. 18 September 1997) that she received further incorrect advice from a second firm of solicitors. But as mentioned above in written submissions made on behalf of the Applicant this advice is said to have been given in June 1997.
80. In our comments on the cogent points identified by the Chairman we have commented on the reasons advanced by the Applicant for the delay during this period. We accept that they are based on the advice received. We have also accepted in favour of the Applicant that until she received advice from her present solicitors (the third piece of advice by early October 1997) part of her thinking was that she could not issue proceedings until her internal complaint had been dealt with. The effect of the Chairman's findings is that this internal complaint could have been dealt with more quickly. For present purposes we proceed on that basis but recognise that this could be an issue in respect of the clams under paragraph 23(iii). Also we shall proceed on the basis of an assumption in favour of the Applicant that if the decision on her complaint had been made earlier, or if she had received the brief from the Naval Personnel Secretariat before end of September 1997, she would then have taken steps to pursue proceedings and would not have waited until her release from the navy.
81. Thus during this period we proceed on the basis that the Applicant's reasons for the delay were bad advice from solicitors she consulted and delay in the investigation of her formal complaint.
82. Shortly after the beginning of the fourth period (18 September to 16 December 1997) the Applicant received the brief from the Naval Personnel Secretariat. That brief was favourable to the Applicant and accorded with the decision the Board ultimately reached. Also by early October 1997 she had consulted her present solicitors and the effect of her earlier (and incorrect advice) was spent. However after the Applicant instructed her present solicitors she (and they) did not proceed with any great haste. They issued the Originating Application just within the three month period following the date the Applicant regarded as her date of release from the navy and thus their timetable coincided with an aspect of the earlier incorrect advice relating to the Applicant leaving the navy.
83. We note that the IT1 was signed on 9 December 1997 but not received by the Employment Tribunal until 16 December 1997. We accept that it would have taken some time to prepare such an IT1 but (as with the progress of the Applicant's internal complaint) with hindsight it can be said that the Originating Application could have been prepared and issued more quickly after the errors in the earlier advice were made known to the Applicant.
84. In commenting on the Chairman's cogent points we have pointed out that during this period the Applicant and her solicitors were not waiting for the outcome of the internal investigation and that in our view the "stay point" is a poor one.
85. Looking at the periods of delay in the round from October 1996 it follows from the above that there is a shared responsibility between February 1997 and early October 1997 (8 months approximately) and that the Applicant has to take responsibility for the other months of delay (approximately 7 to 8 months) albeit that during period October 1996 to February 1997 (and earlier) the Applicant asserts that she was not properly supported by the navy and her complaints were not properly investigated. Additionally during the period of shared responsibility it seems to us that the primary reason for the delay is the advice given to the Applicant and it is she who has to take responsibility for that vis a vis the MOD.

Fair trial

86. It was submitted to us that in determining the complaints that are in any event proceeding (i.e. on the basis of paragraph 23(iii) as amended – see paragraph 64 above – and in particular paragraph 23 (iii)(c)) the Employment Tribunal would have to make findings as to the allegations that Mr H harassed the Applicant. We do not agree. The claims based on an alleged failure to properly investigate (which covers the complaints in July and October 1996) can be, and in our judgment should be, conducted without going into all the details of the alleged harassment. It is background. Part of the claims is the loss of a chance.
87. Assessing the position as at 16 December 1997 in general terms we prefer the reasoning and conclusions of the Chairman as to the fairness of a trial of the claims based on the actions of Mr H and the responsibility of the MOD for them when he was dealing with the claim against Mr H.
88. The SDA provides a short "limitation period" and it seems to us that part of the reason for this is that Parliament has recognised that fairness to both sides is promoted by such claims being launched promptly. In our view this is particularly the case when the claims depend on the recollection of parties and witnesses. That is the case with the claims in paragraphs 23(i) and (ii). The evidence in respect of the claims in paragraph 23(iii) will depend to a lesser extent on recollection of events.
89. Earlier we have pointed out that in our judgment the point taken by the Chairman by reference to the powers of the MOD to obtain evidence is flawed.
90. In our judgment the MOD would suffer prejudice in respect of their defence if time to bring the claims in paragraphs 23(i) and (ii) was extended. This is because they will have to rely on the recollection of witnesses to counter the oral evidence of the Applicant. Those witnesses (including Mr H) are unlikely to have thought about the allegations made by the Applicant as much as she has done since the alleged acts of harassment took place and are therefore more likely than the Applicant to have to say that they cannot recall what happened when giving their account of what they believe occurred and their perception of the incidents relied on by the Applicant. These difficulties are added to by the fact that the earlier statement of the Applicant was incomplete but they exist independently of that point.

Other factors

91. In addition as mentioned above if the claims in paragraphs 23(i) and (ii) are allowed to proceed Mr H would suffer some prejudice.
92. We have placed little weight on (a) the possibility that the Applicant may have claims against solicitors, and (b) the point that her claims based on the amended paragraph 23(iii) (which includes complaints based on a failure to investigate complaints made whilst she was serving on Invincible). But if anything these are factors against granting an extension of time.

Conclusion

93. Here in deciding whether or not it would be just and equitable to extend time and thus in weighing and balancing the factors for and against an extension it is not practicable to carry out a precise or mathematical exercise not least because in much of the decision making process like is not being weighed with like.
94. In our judgment having particular regard to (a) the analysis of the delay and the reasons for it set out above, and (b) the prejudice to the MOD and to Mr H that would result if an extension was granted we have reached the clear conclusion that it would not be just and equitable to grant an extension to enable the Applicant to pursue the claims made in paragraphs 23(i) and (ii).
95. It follows that the Applicant cannot pursue the claims in paragraph 23(i) and (ii) but can pursue the claim in paragraph 23(iii) as amended by the First Decision to read as follows:

Because of my sex the First Respondent failed to investigate the complaints made by me (i) in July 1996 and referred to in paragraphs 13 and 14 hereof, (ii) my formal complaint made in October 1996 and (iii) my formal complaint made in February 1997 properly in that they:

(a) Did not carry out the investigation with due speed thus causing me further anxiety and distress

(b) Failed to investigate the complaint fully and to interview all the relevant witnesses thus basing any findings against incomplete information

(c) Failed to take appropriate action against [… Mr H]

(d) Failed to advise me appropriately on the merits of my complaint

(e) Failed to comply with Navy guidelines on prevention of harassment

We repeat that for the avoidance of doubt we give leave to make that amendment without any re-service.