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Cite as: [1993] UKEAT 657_92_1801

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BAILII case number: [1993] UKEAT 657_92_1801

Appeal No. EAT/657/92

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18th January 1993

Before

THE HONOURABLE MR JUSTICE KNOX

MISS J W COLLERSON

MRS E HART

MR A MAHAJAN APPELLANT

SUN ALLIANCE & LONDON ASSURANCE CO LTD RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

APPEARANCES

For the Appellant MR A MAHAJAN

(Appellant in Person)

MR JUSTICE KNOX: This is a preliminary hearing of an appeal brought by Mr Mahajan from a decision of London (North) Industrial Tribunal on the 26th May 1992 in which they held that Mr Mahajan's complaint for alleged racial discrimination had been presented to the Industrial Tribunal on the 31st December 1991 and was out of time and they therefore dismissed it. Certainly, so far as the presentation of the Originating Application is concerned they were right in identifying the date as 31st December 1991.

In the Originating Application, in the box in the form IT1 which asks for the date when the action being complained about took place, or the date when the complainant first knew about it, the answer that is given is "2.10.91" and on that basis of course there was just less than three months before the presentation of the Originating Application. Three months is relevant because of the specific time limits that are imposed by the Race Relations Act 1976 which in Section 68(1) reads:

"An industrial tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done."

Section 54 is the section which permits a complaint by a person who has had an act of discrimination against him which is unlawful by virtue of Part II of the 1976 Act to present that complaint to an industrial tribunal. Part II of the Race Relations Act 1976 is the one which is headed "Discrimination in the Employment Field" and the relevant section, Mr Mahajan we understood accepted, was Section 4(2)(c) which has of course to be read in conjunction with the definition of racial discrimination in Section 1(1)(a). 1(1)(a) says this:

"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -

(a)on racial grounds he treats that other less favourably than he treats or would treat other persons"

No question of indirect discrimination under 1(1)(b) has been raised before us. Reverting to Section 4 the relevant provision is Section 4(2)(c) and omitting unnecessary words that reads as follows:

"It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee -

(c)by dismissing him, or subjecting him to any other detriment."

The scheme of the Act of course is not to make illegal every and any act of discrimination as defined, but to make unlawful such acts in particular circumstances of which one of the most, if not the most important is in the employment field in the circumstances defined by Section 4 in particular. Even there, there are exceptions, for example in subsection (3) Section 4 provides:

"Except in relation to discrimination falling with Section 2, subsections (1) and (2) do not apply to employment for the purposes of a private household."

The rule regarding the unlawfulness of discrimination is therefore, obviously, not a universal one.

The relationship between Mr Mahajan and the Respondent to his Originating Application was a matter which was left unresolved by the Industrial Tribunal. It said this, in paragraph 1 of its Full Reasons:

"The applicant entered into a contract on or about 1 March 1991 with the respondent for his `employment' with them as a financial consultant. It is in dispute as to whether that contract was one of service or for services. We do not decide that point, but for the purposes of this decision only, will assume that the contract was one of service."

Mr Mahajan had difficulty in appreciating that this was in fact an assumption that was made in his favour, because if the contract was one for services and not of service, his case fell outside Section 4 altogether and therefore to make the assumption that the Industrial Tribunal did make was something which was in his favour rather than the opposite. It is right that we should record that on several occasions during his address to us Mr Mahajan denied that the relationship between him and the respondent Sun Alliance Company was an employment relationship. He described it more than once as a business contract drawing a distinction between employment contracts on the one hand and business contracts on the other. If of course he was right in that submission the claim must necessarily fail because he would not be within Section 4 and he was unable to point us to any other relevant provision of the Race Relations Act. Section 1(1)(a) by itself does not constitute a definition of unlawful conduct but this was a proposition that Mr Mahajan had some difficult in accepting or understanding. However that may be we propose to deal with this case on the same beneficial assumption in his favour that the Industrial Tribunal made.

The general nature of the relationship between Mr Mahajan and Sun Alliance was not in significant doubt. Mr Mahajan was engaged by Sun Alliance Pensions Life and Investment Services Ltd ("Sun Alliance") to sell its products and was paid on a commission basis. Equally, it is clear that at this stage we are not concerned with any issue as to whether there, in fact, was unlawful racial discrimination. At this stage what the Industrial Tribunal and this Tribunal is concerned with is the question of identifying the date at which the claims, assuming them to be correct, that Mr Mahajan raises showed relevant acts by Sun Alliance or its employees. I emphasise the word "acts" because that is the word that is used in the provision which I have already read which imposes the time limit on such claims, that is to say Section 68, where the period is defined in terms of a period beginning when the act complained of was done. It appears, fairly clearly, that the critical events were as follows: there was a letter written to Mr Mahajan on 9th July 1991 and another written on the 11th July 1991. The first of those two was addressed to Mr Mahajan by a Senior Branch Manager called Mr Philip Day and it included this:

"Also, as you have clearly stated that you are not happy with the procedures that this Company operates, then I see no point in your remaining as a consultant within this branch.

Your continued disruptive actions and uncompromising attitude leave me with no alternative than to instigate the termination of your contract as of today.

. . . I must ask that your departure be effective as of 1.00 pm today."

Two days later the second letter was written, this time by the Superintendent of Commissions and Company Sales Administration, which included this:

"We are writing formally confirming the termination of your Company Representative Agreement with this Company with effect from 30 days from the date of this letter."

and the date of the letter was 11th July 1991.

That is the background against which the Industrial Tribunal's decision on this question of time has to be read. What they said in paragraphs 2 to 5 is this:

"2 That contract [ie the contract between Mr Mahajan and the Respondent] was determined by the respondent by 2 letters dated 9 July and 11 July 1991, on behalf of the respondent.

3 We hold that the contract was thereby determined at the latest on 10 August 1991 (see 1st para of the second letter). It was not legally possible for the applicant unilaterally to keep the contract alive after that date, as he alleges. That is because it was a contract of a personal nature. The case of Robert Cort & Son Ltd v. Charman [1981] ICR 816, EAT, cited by the applicant, does not establish to the contrary.

4 Consequently, unless there was some later act of discrimination, time for presenting a complaint to an Industrial Tribunal would begin to run on 10 August 1991 at the latest.

5 We hold that it did so run, because there was no separate or continuing act of discrimination thereafter, and in particular none such on 2 October 1991 (see letter dated 4 October 1991) as alleged by the applicant. There was no continuing act, within the meaning of section 68(7)(b) of the Race Relations Act 1976."

That letter that is there referred to was written after a meeting on the 2nd October, which is the date that Mr Mahajan identified as the date of the act in respect of which his Originating Application was brought, between Mr Monks, a Solicitor acting for Sun Alliance, and Mr Mahajan and the 4th October letter deals with that. The relevant part of it reads as follows:

"I write further to Mr Wright's letter to you of 29th August 1991. I am responsible for Sun Alliance's direct sales life company . . . and, as such, I have received a full report regarding your complaints from the company solicitor, Mr P M Monks.

Mr Monks conveyed to you at your meeting with him on Wednesday 2nd October the conclusions of his investigation.

I set out below the findings:-

1.The allegation of racial discrimination has not been substantiated.

2.The relationship between Mr Day and yourself had irretrievably broken down as at the 9th July 1991.

3.The termination of your Company Representative Contract was not in accordance with the procedures set out in that Contract."

and then the letter deals with various proposals which were not accepted for settling the matter, and indeed it is doubtful whether those proposals were properly admissible in evidence, but nothing turns on that.

Mr Mahajan submits that the Industrial Tribunal effectively misunderstood his complaint. He submits that he was not complaining about what happened on the 9th or 11th July, save of course as constituting discrimination in itself, but that his complaint was what happened on October the 2nd and perhaps on the 4th, when the letter was written. Nothing turns on the difference between those two because they were both within the three month period. The way in which he put it at first was to say that the respondent Company was guilty of racial discrimination on the 2nd October because it had an option to take action against the people who had acted improperly, as was admitted by Mr Monks in relation to the inadequacy of the notice that was given to Mr Mahajan, and failed to do so, and that was one act of discriminatory conduct. Secondly, that they had the option to give him redress and keep him on as their, whether it be employee or not, agent, which they failed to take and they let him go and failed to ratify his contract.

So far as the first of those claimed acts of discrimination is concerned, the failure to punish other persons in the organisation, the case is plainly hopelessly unarguable because that relates to how the respondent Company treated those other members of the organisation and has nothing to do with how they treated Mr Mahajan, and we did not understand Mr Mahajan at the end of the day to dispute that. Plainly on that aspect the case is totally unarguable. The question is whether there is an arguable case in relation to the way in which Mr Mahajan puts his case on what happened on the 2nd and 4th October 1991, that there was discriminatory conduct in letting him go and in failing to ratify his contract. It seems to us unnecessary to decide whether the Industrial Tribunal was right in identifying the 10th August rather than the 11th July as the date upon which the act in respect of which complaint was made was performed, because either date was significantly outside the three month period. What does matter is whether there is an error of law, which is of course the limit of our jurisdiction in these matters, in the Industrial Tribunal's conclusion that unless there was some act later than the 10th August 1991, and indeed, later than the 30th September 1991, time for presenting a complaint to the Industrial Tribunal would have run out before the Originating Application was actually presented. The Industrial Tribunal's critical conclusion on that was that there was no separate or continuing act of discrimination after the 10th August 1991 and in particular none such on the 2nd October as alleged by the Applicant, there was no continuing act within the meaning of Section 68(7)(b). We did not understand the argument to be based on questions of continuing acts. The complaint is about the bringing to an end of the contractual relationship (I use neutral expressions to avoid begging the question as to what exactly its nature was) and on any view it seems to us that the critical feature of the case is what the respondent Company did in that respect, and what the respondent Company did in that respect occurred on the 9th and 11th July. What was done on the 2nd October was to report the results of an investigation by a Solicitor, that in itself had no contractual effect at all, to put forward a compromise which was not accepted and is therefore ineffective and is not itself attacked as discriminatory. There was a failure to take the action that Mr Mahajan wanted the respondent Company to take, namely to, no doubt apologise, and restore him to the position that he would have occupied if the letter of the 11th July had not been written. It seems to us quite impossible to say that the Industrial Tribunal made an error of law in saying as they did, that there was no separate or continuing act of discrimination after the 10th August 1991, because there is on the facts as we understand them, and indeed they were largely not in dispute, no such act as comes, or could be argued to come within Section 4(2)(c) of the Act of 1976, either on the 2nd or on the 4th October 1991. It is of critical importance for Mr Mahajan to establish that not only Section 1(1)(a) but also some other section which incorporates the definition of racial discrimination, has been infringed.

Accordingly, we are satisfied that whether or not every step in the argument that was relied on by the Industrial Tribunal is actually correct, the conclusion, in the light of the finding that there was no separate or continuing act of discrimination after the 10th October is not one which can be faulted.

The problem does not stop there because, of course, there is jurisdiction to extend time in subsection (6) of Section 68 which reads:

"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."

and Mr Mahajan addressed us starting historically with the provisions of Magna Carta and continuing with a citation from the Attorney General's Reference (No.1) [1992] 3AER 1070 to the effect that the denial of a fair hearing is unlawful. The particular case in the Attorney General's reference was one concerned with staying prosecutions in criminal proceedings. These of course are not criminal proceedings, this is a complaint which is brought under Section 54 of the Act of 1976 and there is no direct correlation between what Lord Lane C.J. said in that case and the present. There is a specific statutory framework with regard to the bringing of complaints under the Race Relations Act and Parliament has enacted a fairly tight time limit and has stated, in general terms, the circumstances that have to be established before that time limit is extended. The Industrial Tribunal considered the case of Hutchison v Westward Television Ltd [1977] ICR 279, the page number is given wrongly in the Industrial Tribunal report but nothing turns on that, and in our view applied the law that is laid down by that case carefully and no argument was addressed to us to show that that was not done in a conscientious way. In any event there would have to be shown an error of law before we had jurisdiction to interfere with that process.

We should mention that Mr Mahajan claimed that the Industrial Tribunal had not considered the prejudice that Mr Mahajan suffered as a result of his application being held to be out of time and that they did consider the possible prejudice to the respondent Company in allowing the proceedings to continue. The latter of course is absolutely true because that is one of the specific points that was mentioned by the Industrial Tribunal, but we are wholly unpersuaded that the Industrial Tribunal was unaware of, or did not take into account, the fact that if Mr Mahajan's application was held to be out of time and time was not extended, he would lose the right to such compensation as he otherwise proved, in the event, to be entitled to, if any. That obviously was something that the Industrial Tribunal must have been aware of and we see no possible basis for supposing that they did not pay attention to that aspect of the matter.

Accordingly, we have been unable to discern an error of law in the Industrial Tribunal's decision and on that basis we have no option but to dismiss this appeal at this stage, which is what we do.