England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge J McMullen QC)

		Royal Courts of Justice Strand London WC2 Friday, 6th September 2002

Friday 6th September 2002

1. LORD JUSTICE PETER GIBSON: Dr Kalyani Pal seeks permission to appeal from the dismissal on 13th March 2002 by the EAT at a preliminary hearing of her appeal from the decision of an Employment Tribunal sitting in London South. The Tribunal thereby dismissed Dr Pal's complaint of sex and race discrimination as being out of time and refused to extend time.
2. The facts in summary are these. Dr Pal was born in 1943 in India and educated to post-graduate degree level there. She came to England in 1967 and she obtained an M Phil in 1974. From 1973 to 1987 she was a research officer with the Institute of Cancer Research. She contributed to many scientific papers. In 1987 she began employment with the respondent, Guy's Hospital, now merged with St Thomas' as Guy's and St Thomas' Hospital National Health Service Trust. She worked as a cytogeneticist. She was upgraded to senior scientific officer in 1988. In 1990 she was on Spine Grade Point 17 of the Grade B scale. She went to Spine Point 18 in 1991. She has been a section head since 1995. In 1998 a Head of Department retired and was not replaced. The post of a Dr Docherty was upgraded and she was appointed head of the cytogenetics laboratory. The monies that were thereby released were used for, amongst other purposes, to fund three promotions from existing staff on Grade B. Dr Docherty concluded that the post held by a Dr Ogilvie, a Dr Scriven and a Mr Campbell now merited B Grade 17 to 19 and the title of principal clinical scientist. The clinical director agreed with her. In accordance with National Health Service rules, two external assessors were appointed to consider the promotions. On 21st October 1999 they agreed to the promotion, following interviews with the three persons, and the promotions then took effect. The external assessors were not told about Dr Pal. The three promoted persons were regraded in October 1999.
3. The Tribunal found:

"The promotions generated the usual celebrations within the department, with tea and cakes being provided by the three doctors, and the matter being discussed at a meeting. Although Dr Pal was not present on some of the days around this time she was clearly present throughout most of it. Moreover there was a reorganisation of duties, which in a relatively small department must have been known to all concerned."

4. The Tribunal found that the promotion of Dr Pal's colleagues was a triple blow to her because younger white people had overtaken her in salary terms, they had a more prestigious title and they ranked above her in the hierarchy.
5. On 6th June 2000 Dr Pal presented her originating application, claiming sexual and racial discrimination in that the respondent failed to regrade her post and treated her less favourably than Dr Ogilvie, Dr Scriven and Mr Campbell.
6. Before the Tribunal Dr Pal was represented by experienced counsel. The hearing lasted five days. The first issue for the Tribunal was whether the claim was made by Dr Pal in time. On the basis that the promotion was made on 21st October 1999, Dr Pal was some six months out of timein presenting her originating application. The Tribunal said this in paragraph 28:

"We cannot accept Dr Pal's assertion that she did not know of the promotion of the other three. There is clear evidence which we accept that she was told about it by Dr Docherty in September and that she offered her congratulations to at least one of the comparators in October. News that three people had been promoted could not have been a secret in that small department. As the Applicant's case as it is put depends wholly upon that assertion which we have rejected, we can see no reason why it is just and equitable for us to consider her application and we therefore dismiss it."

7. Thereby the Tribunal recognised that it had a discretion whether to extend time if it was just and equitable to do so. The Tribunal refused to do so, but it went on to have regard to the merits.
8. The Tribunal said that it would have dismissed the complaint because it accepted the respondent's explanation that she was not promoted because her job did not merit the higher point in her grade. The Tribunal criticised the respondent for the way the promotions were carried out, but said:

"It is clear from the external assessments undertaken that the gap in achievement between the Applicant and the comparators was very wide, and that she had no prospect of making the same sort of case they could for regrading. In those circumstances we accept that the actions of the Respondents were objectively justified and there is nothing in this evidence from which we can infer that the Applicant's race or gender were factors."

9. Dr Pal appealed to the EAT. At the preliminary hearing of her appeal she was represented by a solicitor. The EAT noted that the factual decision by the Tribunal was not the subject of attack and said that Dr Pal failed to cross the high threshold required to overturn the exercise of discretion. That exercise of discretion was, of course, in relation to the power conferred by both the Race Relations Act and the Sex Discrimination Act to extend the three months' period if it considers that it is just and equitable to do so.
10. Dr Pal now appears in person before me. She has supplied me with amended grounds of appeal. She has also supplied me with a skeleton argument in which she takes a number of points. Many of the points relate to factual findings made by the Tribunal. Although I have tried to explain to her that she would not normally be allowed to raise points which were not argued in the EAT, she has nevertheless persisted in airing her general complaints about the findings of the Tribunal. She asserts that the Tribunal miscalculated the relevant limitation period because it failed to base its calculation on the appropriate act within the meaning of section 68(1) of the Race Relations Act 1976. By section 68(1) time is measured from the doing of the act complained of. A similar provision is found in the Sex Discrimination Act 1975 (see section 76(1)). When asked what that act was Dr Pal had some difficulty in responding. She seemed to think that her own awareness of the promotions somehow constituted the relevant act. But it is quite plain that the act complained of is the act of the employer which was said to constitute racial or sexual discrimination, and the complaint is that the three comparators were promoted whereas she was not even considered.
11. It is to my mind obvious that the doing of the act complained of was in October 1999 and that her delay in presenting her originating applications on 6th June 2000 meant that she was long out of time so that the Tribunal was barred from considering her complaint unless in the exercise of its discretion it considered it was just and equitable to extend time. Dr Pal nevertheless in front of me again argued that she did not know about the promotions until March 2000 and she denied the evidence that was put in by the respondents as to her knowledge of the promotions in September to December 1999. I am afraid that that is hopeless because there was plainly evidence before the Tribunal on which it could properly reach the conclusion which it did. I can understand that Dr Pal is aggrieved that her version of the facts is not accepted, but the only tribunal of fact is the Tribunal and it had material on which to reach that conclusion.
12. So far as the exercise of discretion is concerned, Dr Pal complains that the Tribunal erred in law in not applying what she calls the appropriate check-list for determining whether it was just and equitable to extend time. That is a reference to what was said by the EAT in British Coal Corporation v Keeble [1997] IRLR 336 at paragraphs 8 and 9 on page 338. Dr Pal has, I think, misunderstood what was said in the Keeble case. Smith J, giving the judgment of the EAT, referred to the fact that an earlier EAT, when remitting certain cases for rehearing, had said that the issue of whether it was just and equitable to extend time should be decided by the Tribunal on the basis of the circumstances of each individual case, and had advised that the Tribunal should adopt as a check-list the factors mentioned in section 33 of the Limitation Act 1980. That section provides a broad discretion to extend the limitation period of three years in cases of personal injury and fatal accident. Smith J in the Keeble case merely said that it had not been suggested to the EAT that the guidance given was erroneous.
13. In my judgment it cannot be argued that when a tribunal fails to adopt that check-list it commits some error of law. In contrast to the very different circumstances of personal injury and fatal accident cases, Parliament has not provided such a check-list to tribunals in discrimination cases, and whilst it may be appropriate in many cases to apply such a check-list, I reject the suggestion that it is necessary in all cases. In any event, it is for the applicant seeking the extension of time to show why it is just and equitable for the Tribunal to extend time. In the present case not merely did counsel for Dr Pal not refer the Tribunal to the Keeble case, but no factors were urged on the Tribunal other than the one matter to which the Tribunal drew attention in paragraph 28 of the Extended Reasons which I have already cited, that is to say the assertion by Dr Pal that she did not know of the promotions. For the reasons already given, that assertion was rejected by the Tribunal and it is hopeless to try to go behind that. In my judgment there was no error by the Tribunal in not going through some check-list which had not been urged by Dr Pal. Again, this is a new point on which it is not really appropriate to found an appeal in this court.
14. Dr Pal also criticised the EAT for saying that it found no authority which expressly dealt with the question of prejudice to the applicant. She says that the Keeble case is such an authority. Even if this were an error by the EAT induced by the failure of her own advocate to draw the case to the attention of the EAT, it does not assist Dr Pal, because on a second appeal, as this court has repeatedly said, this court is more concerned with the correctness of the reasons of the Tribunal than with those of the EAT. In any event, it is a non-point because the prejudice to Dr Pal in having her complaint dismissed through no extension of time being allowed would have been obvious to everyone.
15. Dr Pal also says that the Tribunal was wrong to decide the point on limitation as a preliminary issue without establishing the primary facts. But the Tribunal did, as I have already indicated, look at the primary facts and it rejected Dr Pal's case. So again this point is of no avail.
16. I have carefully considered all that Dr Pal has put before me both in writing and in her oral submissions this morning, but I am afraid that I am not persuaded that Dr Pal has any real prospect of success on an appeal. Nor is there any other compelling reason shown why this appeal should be heard. I must therefore refuse this application.
Order: Application refused.