England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE HICKS QC

		Royal Courts of Justice Strand London WC2
		Friday, 26th January 2001

Friday, 26th January 2000

1. LORD JUSTICE SCHIEMANN: Cresswell J will give the first judgment.
2. MR JUSTICE CRESSWELL: This is an appeal against the decision of the Employment Appeal Tribunal. His Honour Judge Hicks QC, sitting with lay members) dated 12th November 1999 dismissing Mr Shand's appeal from a decision of the Employment Tribunal dated 12th November 1998. Permission to appeal was granted by the Employment Appeal Tribunal on 2nd February 2000.
3. During the period with which these proceedings are concerned Mr Shand's employer was initially the first respondent, Leicestershire County Council, but as a result of local government reorganization the second respondent, Leicester City Council, became his employer. None of the issues raised on the appeal turns on the change of employer.
4. The decision of the Employment Tribunal dated 12.11.98
5. On 7th August 1998 Mr Shand issued a complaint of race discrimination against his employers. In box 9 of the application (which requires an applicant to give the date when the matter complained of took place) he inserted: "11-14 May 1998", dates just under three months earlier. In the attached statement of case:

(i) He alleged a number of instances of being "unfairly treated as a black person" in 1994 and early 1995;

(ii) He referred to being marked down as a "borderline" appointee in 1995, following a reorganisation of the Residential Child Care Service.

(iii) He referred to his suspension from work because of an allegation against him by a child (X);

(iv) He referred to the initiation of a formal grievance in July 1995 covering all areas of concern up to that date;

(v) He alleged that this grievance was not properly investigated and referred to his request that the matter go to a formal hearing, adding that before the hearing he was transferred to a different establishment to which X was also transferred in December 1995 (this matter was added to his grievance);

(vi) He set out six issues identified in his grievance;

(vii) He referred to the consideration of his grievance at a formal hearing by the County Council in December 1996, adding that although his grievance was upheld in the sense that he had been unfairly treated, the Panel determined that this mistreatment did not constitute racial discrimination;

(viii) He said that dissatisfied with the outcome, he appealed on seven grounds;

(ix) He referred to the consideration of his appeal by the City Council (the hearing taking place on 11, 12 and 14 May 1998), adding that the outcome of the grievance was to uphold all of his grievances, with the caveat "any employee regardless of their race may have been treated in the same way."

(x) He alleged areas of concern in relation to the hearing in May 1998."

6. The statement of case concluded:
7. "Having regard to all the circumstances I believed no reasonable employer would have come to the conclusions made by the Appeals Committee and the decision was an act of continuing discrimination." At a hearing before the Employment Tribunal at Leicester on 10th November 1998, confined to determining which allegations were in time and what evidence should be admitted at the substantive hearing, Mr Richards, of Mr Shand's union, submitted that there was discrimination in the appeal hearing because no employer could have come to the decision that was made by the panel, if acting fairly. Mr Richards further submitted that the tribunal hearing the case would have to hear all of the evidence relating to the original allegations in order to decide whether the panel had itself discriminated against Mr Shand.
8. It is common ground that Mr Richards did not apply for an extension of time under section 68(6) of the Race Relations Act 1976.
9. The respondents submitted that only the last appeal could be in time and that there was not a course of conduct shown or alleged.
10. On these submissions the tribunal concluded in the extended reasons: "5. We accept that the question of the appeal hearing in May 1998 is the only issue which was presented within three months to the tribunal. We are satisfied that the applicant is not putting forward an allegation of either a racially discriminatory policy which is continuing or of a continuing course of conduct. It is, therefore, clear, that all of the allegations apart from that relating to the May appeal are out of time."
11. The tribunal, however, continued as follows:

"Under the Race Relations Act 1976 we have to decide whether it would be just and equitable to extend that time. We consider it would be wrong to do so. There is a very long period since the specific allegations and they would undoubtedly be difficult to establish by evidence at this stage. In addition, however, the applicant has been represented by his union and was able to put forward a grievance. There seems to us to be no reason why he could not have similarly submitted an application to a tribunal within a reasonable period. We also take account of the fact that the applicant appears to be trying to get the tribunal to act as a further stage in the appeal process, which is not our function. As we are not prepared to extend the time to include those allegations which are out of time, we are dismissing them as beyond the jurisdiction of the tribunal and that leaves only the allegation relating to the appeal in May 1998."

12. In consequence, the tribunal ruled as follows on the question what evidence could be adduced:

"6. The only issue relating to that appeal is whether the appeal itself was discriminatory. As a result the tribunal would not permit evidence to be called to show whether the original acts were or were not acts of racial discrimination as that is irrelevant to any decision the tribunal has to take. The tribunal will only be concerned with the hearing itself. Although in paragraph 15 of the application the applicant has set out areas of concern relating to the Appeal Panel none of those are acts of discrimination against the applicant and could only be questions of inference. The applicant will have to satisfy the tribunal that the Panel dealt with him differently by reason of his race and there appears to be very little within his application, other than that he disagrees with the outcome, to establish that that is the case."

13. The Decision of the Employment Appeal Tribunal dated 12.11.99
14. Mr Shand appealed to the Employment Appeal Tribunal on the ground that the Employment Tribunal erred in law in that "it failed to deal with the true nature of the reason why the applicant did not present his complaint earlier when dealing with its decision whether it would be just and equitable to extend time in relation to the allegations apart from the May 1998 appeal." An inter partes hearing was directed on the "essential point" relating to section 68(6).
15. As to the tribunal's refusal to extend time under section 68(6) the Employment Appeal Tribunal considered two points:

(1) Whether given that Mr Shand did not apply for an extension below, he could raise the matter on appeal and

(2) Whether there was an error of law in the tribunal's decision.

16. As to (1), the Employment Appeal Tribunal held that had the tribunal not considered the question of extension of time, its order would have been the same and would have been unappealable. Alternatively the Employment Appeal Tribunal held that the tribunal erred in law in proceeding to consider section 68(6) without any application or argument, and its reasons and conclusion on that subject should therefore be disregarded. The Employment Appeal Tribunal emphasised that:

"We are dealing only with a situation in which the tribunal embarks upon consideration of an issue which it was for one party or the other to raise by way of application..."

17. As to (2), the Employment Appeal Tribunal held that the tribunal did not err in law in its decision or reasons relating to section 68(6)

The Notice of Appeal to this Court

18. Mr Shand's notice of appeal to this court asserts that in upholding the decision of the Employment Tribunal the Employment Appeal Tribunal erred in law in two ways:

"(1) The Employment Appeal Tribunal indicated that because the issue of extension of time had been taken by the Employment Tribunal of its own volition, it was irrelevant if the Employment Tribunal had then made a misdirection of law to the detriment of the Appellant.

(2) The Employment Appeal Tribunal found that the case of Aniagwu could be distinguished..."

19. I interpose to point out that the decision in Aniagwu v London Borough of Hackney and Another [1999] IRLR 303 should now be read subject to the decision in Robinson v The Post Office [2000] IRLR 804.

Permission to appeal

20. In granting permission to appeal the Employment Appeal Tribunal said:

"Here, although the Appellant would have to succeed on both limbs of his argument in order to reverse our decision, and although I believe we were right in both instances, it is true (and we say) that the first was a novel point on which there is no authority, while on the second we distinguished and departed from the... decision in Aniagwu despite a general statement in that case which arguably covered the position."

21. The Principal Issue raised before this Court of Procedural Unfairness
22. The argument before this court has taken a turn which was not foreshadowed in the previous history of this case. The principal issue raised before this court today by the appellant is alleged procedural unfairness. Mr Langstaff QC, for the appellant, accepts that, if the decision of the Employment Tribunal cannot be faulted on grounds of procedural unfairness, the appeal cannot succeed. Mr Langstaff in an able and well presented argument submitted as follows:
23. Where a point is taken by a tribunal of its own motion, this has both procedural and substantive consequences. These consequences are not particular to the Employment Tribunal system, but give rise to principles of general applicability.
24. As to procedure, where a court raises an issue of its own motion it must give the parties an opportunity to address it, both by submissions and by evidence if necessary.
25. As a matter of principle a party is entitled to be heard on an issue that a court or tribunal will determine. It does not matter whether the point is raised by the tribunal of its own accord or by a party (Hoecheong Products Co Ltd v Cargill Hong Kong Ltd [1995] 1 WLR 404, issue raised by appellate court of its own motion and determined without hearing from parties on it).
26. Mr Langstaff submitted that in the present case the Employment Tribunal should not have determined that it was not just and equitable to extend time under section 68(6) without first giving Mr Shand (and the employers) an opportunity to address the Employment Tribunal, both by submissions and by evidence if necessary.
27. Section 68 of the Race Relations Act 1976 (period within which proceedings to be brought) provides so far as material:

"(1) An [employment tribunal] shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of --

(a) the period of three months beginning when the act complained of was done; ...

(6) A court or 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."

28. Questions of procedural unfairness must be judged by reference to the particular circumstances. In the present case the following should be noted:

(1) The question of the application of section 68 to Mr Shand's complaints was plainly before the tribunal on 10th November 1998.

(2) Mr Shand was represented by Mr Richards, whose knowledge and experience of employment law was demonstrated by his submissions as recorded by the Employment Tribunal as follows:

"Mr Richards on behalf of the applicant drew our attention to the case of Cast v Croydon College [1998] IRLR 318. He had to accept that that case was somewhat different from the current case, because it related to a discriminatory policy, whereas this applicant was alleging specific acts of discrimination which, apart from the question of his grievance brought to complain of those acts, ended at the latest in December 1995. He suggested that there was discrimination in the appeal hearing because no employer could come to the decision that was made by the panel if it was acting fairly. He suggested that the Tribunal hearing the case would have to hear all of the evidence relating to the original allegations in order to decide whether the panel had itself discriminated against the applicant."

29. In Cast v Croydon College express reference was made to section 68 of the 1976 Act, and in particular to the fact that a tribunal may consider a complaint which is out of time if, in all the circumstances of the case, it considers that is it just and equitable to do so.

(3) When the Employment Tribunal announced its decision Mr Richards did not make any complaint to the effect that he had not been given an opportunity to address section 68(6) by submissions and/or evidence.

(4) The notice of appeal to the Employment Appeal Tribunal did not raise any point as to procedural unfairness. Nor did the notice of appeal to this court. Further permission to appeal to this court was not given by reference to any such period.

30. In the particular circumstances of this case I do not consider that there was any procedural unfairness as now alleged. The Employment Tribunal did not act unfairly in referring to section 68(6) of its own motion and determining that it was not just and equitable to grant an extension on the material before it, without inviting submissions on the point. Mr Richards had presented a sophisticated argument to which I have referred. He must have been familiar with section 68(6). He did not seek to rely on section 68(6). The Employment Tribunal dealt with the point by way of completeness. If, however, the Employment Tribunal had been minded to extend time under section 68(6) the tribunal (not having invited submissions from the employers on section 68(6)) would have been obliged to do so as a matter of procedural fairness before granting an extension of time.
31. I emphasise again that my conclusions as to procedural unfairness turn on the particular circumstances of this case which I have identified above.
32. I would dismiss the appeal.
33. LORD JUSTICE LATHAM: I agree.
34. LORD JUSTICE SCHIEMANN: I also agree.
(Appeal dismissed with costs). (Order does not form part of approved Judgment)