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 MCMULLEN QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/01/2006

Lord Justice Mummery:

The Proceedings

1. Mrs Yasmin Khan, who is of Indian origin, was employed by the Royal Mail plc as a letters administrator from 7 January 1980 until she was summarily dismissed on 8 October 2001 for alleged misconduct (unauthorised absence from work). There were two internal appeals by her against the decision to dismiss. The first was refused on 23 November 2001. The second appeal was refused on 23 January 2002.
2. Mrs Khan presented two applications to the employment tribunal. The first was presented on 2 January 2002. She claimed unfair dismissal. Although she alleged that the dismissal was the result of race discrimination and victimisation, she made no claim for race discrimination or victimisation in those proceedings. Further and better particulars of the unfair dismissal claim supplied in February 2004 referred to race discrimination and victimisation in respect of the dismissal itself. No racial complaint was made of the internal appeal process, which was criticised in the particulars only for failing to give adequate consideration to her explanations or to mitigating factors. No time limit questions arose on the unfair dismissal claim, which was dismissed at the substantive hearing on 2 June 2004 in the absence of Mrs Khan.
3. The matter before this court arises out of the second originating application presented by Mrs Khan on 12 April 2002. This claim was for race discrimination and victimisation. The victimisation claim was based on earlier proceedings for race discrimination brought by her against the Royal Mail in May 1998 and determined in August 1999 when her claim was dismissed.
4. The second originating application has not reached a hearing on the merits because the Royal Mail took the point that it was not lodged in time under section 68(1) of the Race Relations Act 1976 (the 1976 Act). The Royal Mail submitted that, as more than three months had passed since the date of her dismissal, which was the last act complained of as discriminatory, the tribunal had no jurisdiction to entertain the claim. The employment tribunal accepted that submission at the hearing of a preliminary issue on time limits. It also refused to exercise its discretion to extend time on the just and equitable ground under section 68(6). The tribunal's extended reasons were sent to the parties on 7 January 2004.
5. At a preliminary hearing on 30 September 2004 the Employment Appeal Tribunal (HHJ McMullen QC) dismissed Mrs Khan's appeal on the ground that it raised no question of law and refused permission to appeal.
6. On 1 February 2005 Sedley LJ refused permission to appeal save on the question as to whether time began to run from 23 January 2002, when the internal appeals process ended, rather than from the date of summary dismissal on 8 October 2001. If the former date was correct, the second application was in time and no extension of time was needed. On that one point he adjourned Mrs Khan's application for permission to appeal to the full court, with the appeal to follow immediately if permission was granted.

The Law

7. There is no dispute about the law governing time limits for race discrimination claims.
8. In particular it is agreed that, even though Mrs Khan's contract of employment was terminated on 8 October 2001, she was protected against race discrimination and victimisation by her former employer in the period down to 23 January 2002, during which she was pursuing her internal appeals against the decision to dismiss her. Protection against race discrimination in employment contrary to sections 1 and 4 of the 1976 Act, such as by dismissing an employee (section 4(2)(c) of the 1976 Act), was available in respect of the process of internal appeals against the decision to dismiss, even after the dismissal had taken effect and the claimant had ceased to be an employee. That was the result of the decision in Rhys-Harper v. Relaxation Group plc [2003] 4 All ER 1113, which was promulgated by the House of Lords during the course of this litigation: see paragraphs 38-39. 122, 137-138, 187, 198-199. The House of Lords overruled the decision of the Court of Appeal in Adekeye v. Post Office [1997] ICR 110 that the 1976 Act did not extend to a complaint of discrimination in relation to an internal appeals process following dismissal. Adekeye was binding on the employment tribunal at the time when Mrs Khan presented her second application.

The issue

9. The central issue on this appeal is whether Mrs Khan, either in her originating application or at any of the hearings in the employment tribunal, at all of which she was represented by counsel, in fact made a claim that she had suffered discrimination and victimisation during the internal appeals process down to 23 January 2002.
10. Ms Williams submitted on behalf of Mrs Khan that the second originating application had made race discrimination and victimisation claims embracing or encompassing the Royal Mail's handling of the internal appeal process relating to Mrs Khan's dismissal; that they were claims extending over a period continuing down to the final refusal of her internal appeal on 23 January 2002; that under section 68(7)(b) of the 1976 Act the continuing act of discrimination complained of was treated as done at the end of that period; that the originating application was accordingly issued in time; that the employment tribunal made an error of law in holding that the application was out of time and in proceeding on the basis that the tribunal could not entertain the claims in the absence of an extension of time, which it was not prepared to grant; and that the Appeal Tribunal had wrongly ruled that her complaint of discrimination and victimisation during the internal appeal process was a new point, which it would not allow Mrs Khan to raise for the first time on the appeal against the decision of the employment tribunal.
11. Ms Williams, who did not appear in the tribunals below, submitted that Mrs Khan was entitled to take the internal appeals point that the employment tribunal was wrong in law in declining jurisdiction and that her appeal should be allowed without the need to remit the time point to the employment tribunal. No further factual inquiry was necessary in order to decide whether the second originating application was out of time. This court could decide it on the basis of the known facts. The claims for discrimination and victimisation should now proceed to a substantive hearing in the employment tribunal.
12. Ms Shepherd, who appeared for the Royal Mail, contended that there was no error of law in the extended reasons of the employment tribunal. The position was quite simply that at no point before the appeal to the Employment Appeal Tribunal, by which time it was too late to do so, had Mrs Khan's previous legal representatives made any claim for discrimination or victimisation in respect of anything done by the Royal Mail after summary dismissal on 8 October 2001.

Discussion and Conclusion

13. During the course of the excellent oral submissions both counsel carefully took the court through the detailed litigation history of Mrs Khan's claims against the Royal Mail. No useful purpose would be served in setting out all the detail in this judgment. I have reached the clear conclusion that Ms Shepherd is correct in her contention that no question of law arises from the extended reasons of the employment tribunal holding that the second application was out of time, as time began to run in respect of the matters alleged from the date of dismissal on 8 October 2001.
14. In explanation of that overall conclusion, I will trace the key procedural steps in the second application:

1) The ET1 presented on 12 April 2002 bore the name of a firm of solicitors (Messrs Shah) who were then acting for Mrs Khan. It did not contain any specific allegation of discrimination or victimisation by the Royal Mail in the internal appeals process. Apart from a complaint that, despite her attempts to speed up the appeals process, the Royal Mail had "delayed responding to her appeal so that she would be out of time" in lodging her application in the employment tribunal, the originating application focused primarily on the summary dismissal itself. It was alleged that, after she had brought the earlier proceedings against her employer for race discrimination, "they made the decision that they wanted me out of the organisation and subsequently unfairly dismissed me" and thereby victimised her for bringing such an action.

2) Mrs Khan also complained of discriminatory treatment prior to her dismissal. In that connection she named as a comparator a white colleague, Mr Bob Wheeler, who had taken a significant amount of leave.

3) As is the employment tribunals' prudent practice in race discrimination cases, there were directions hearings before the employment tribunal chairman (Mr Barron) in order to clarify the issues. Unusually there were three such directions hearings in this case. At each of them Mrs Khan was represented by junior counsel, though there were different counsel on each occasion.

4) At the first directions hearing on 5 March 2003 Mrs Khan's then counsel agreed that the discrimination claims were made outside the three months time limit. At that stage the chairman took the view that it would be preferable to deal with the time limit point at the hearing of the case rather than by way of preliminary issue.

5) At the second directions hearing on 16 May 2003, which was occasioned by an application by Mrs Kahn for leave to amend her claim in the unfair dismissal proceedings by adding claims for wages and for breach of contract, Mrs Khan's new counsel contended that the employment relationship between Mrs Khan and the Royal Mail continued down to the end of the appeal process on 23 January 2002. The chairman granted leave to amend the claim to include a claim for pay up to 2 January 2002, but not for pay in lieu of notice. There was some discussion of a preliminary issue as to whether the race discrimination and victimisation claims were out of time and, if so, whether time should be extended. The matter was, however, adjourned to a further hearing on 23 June because there was not enough time left to deal with it at that hearing.

6) By the time of the third directions hearing on 23 June 2003 the House of Lords had promulgated their decision in Rhys-Harper, but the case was not cited at that directions hearing or at the subsequent tribunal hearing. After submissions from Mrs Khan's new counsel the chairman made an order for a preliminary hearing of an issue whether, in respect of any one or more of the claims of race discrimination, the application was brought outside the time limit of three months and, if so, whether it was just and equitable to extend the time. Neither of the parties nor the chairman appear to have regarded Mrs Khan as bound by a concession made at the first directions hearing.

7) The detailed report of the third directions hearing made by the chairman listed (in paragraph 8.1 to 8.9) the 9 different claims of discrimination and victimisation made by Mrs Khan. It is highly significant, in my view, that the list did not include any complaint of discrimination or victimisation in relation to the internal appeals process.

8) At the substantive hearing of the preliminary issue by the employment tribunal Mrs Khan was represented by leading counsel. It does not appear from the extended reasons that he developed an argument that her second originating application was lodged in time. The thrust of leading counsel's submission was that the matter of time limits should not be decided as a preliminary issue at all, but should be decided instead at the substantive hearing of the complaint.

9) As appears from the extended reasons, the tribunal proceeded to decide the preliminary issue on the basis that the application was lodged out of time and that the only issue for its determination was whether time should be extended. The tribunal's approach is not surprising in all the circumstances. With the concurrence of Mrs Khan's former counsel a preliminary issue had been directed. Mrs Khan was called to give evidence. The tribunal's findings of fact are summarised in the extended reasons (principally in paragraph 13).

10) Nothing was said by Mrs Khan in her evidence about alleged discrimination continuing over the period of the internal appeals process between 8 October 2001 and 23 January 2002. Her evidence was about victimisation as the reason for her dismissal and about less favourable treatment by managers because of her race. She spoke of her concern about the delay in the appeal process and her hurried preparation of her unfair dismissal application before the time limit for that claim expired. She presented that application in time without the benefit of legal advice.

11) When Mrs Khan wrote to the Commission for Racial Equality and to the tribunal early in 2002 about making a claim for racial discrimination, there was no mention of discrimination or victimisation in relation to the appeals process itself. Mrs Khan consulted solicitors in the middle of March 2002 about her claim for race discrimination and victimisation. As already observed, the originating application did not make any specific complaint about race discrimination and victimisation in the appeals process.

12) The tribunal expressly noted in the extended reasons that, apart from alleged delay, it had not received any evidence criticising the conduct of the Royal Mail in the processing of the internal appeals : see paragraph 26 (c).

15. In the above circumstances the Employment Appeal Tribunal correctly concluded that Mrs Khan was raising a new point on appeal when another new counsel appearing for her attempted to argue that time ran from the conclusion of the internal appeals process on 23 January 2002. That point had not featured in the originating application or in the list of issues made by the chairman at the third directions hearing nor had it been argued by leading counsel in the employment tribunal. It was raised for the first time in the Notice of Appeal to the Employment Appeal Tribunal. (Another new point was raised that, by reference to payment of wages from the date of dismissal, the employment relationship had continued. That was also disallowed).
16. It is well established in the authorities binding on this court that the Appeal Tribunal is entitled, in the exercise of its discretion, to refuse to allow a represented party to take for the first time on appeal a new point of law which goes to jurisdiction and has been decided by the employment tribunal on the basis of evidence given to it: see Glennie v. Independent Magazines (UK) Ltd [1999] IRLR 719; Kumchyk v. Derby City Council [1978] ICR 116. The Appeal Tribunal should not allow a new point to be taken unless there are exceptional circumstances: Jones v. Governing Body of Burdett Coutts School [1999] ICR 38 at 47. In this case there were no exceptional circumstances. Indeed, the list of race discrimination issues agreed at the third directions hearing made it clear that Mrs Khan was not then making any discrimination or victimisation claim in respect of the internal appeals.

Result

17. I would refuse to grant permission to appeal on the short ground that Mrs Khan has no real prospect of success in showing that the employment tribunal erred in law in holding that her second originating application was out of time. As Sedley LJ refused permission to appeal against the employment tribunal's rejection of the application to extend time, the employment tribunal cannot entertain the second originating application and it stands dismissed for want of jurisdiction.

Lord Justice Gage:

18. I agree.

Lord Justice Latham:

19. I also agree.