United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 385_95_1509

Appeal No. EAT/385/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 15th September 1995

HIS HONOUR JUDGE J HICKS Q.C.

LORD GLADWIN OF CLEE CBE, JP

MR J A SCOULLER

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MRS J D ARMSTRONG          APPELLANT

WEIGHT WATCHERS (UK) LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

THE APPELLANT IN PERSON

 


JUDGE HICKS Q.C.: I turn to the appeal of Mrs J Armstrong. She, as I have already indicated in dealing with Mr Armstrong's appeal, was employed by the respondents, Weight Watchers (UK) Ltd. She was employed as the Area Manager for an area which covered Devon, Cornwall and Somerset, and which they called Area 48.

On 2nd June 1994 the respondents entered into a scheme of re-organisation under which the number of areas was reduced by one, and there was thereby a situation in which one of the area managers was to be made redundant and they dismissed Mrs Armstrong on the basis of redundancy.

She made an application to the Industrial Tribunal on the basis that that was an unfair dismissal and that application was upheld and she was awarded compensation for that unfair dismissal in a sum which after review was increased to something over £7,000. It is not without relevance to the present appeal that in making that award the Tribunal totally rejected any suggestion that had the employers acted reasonably they might still have dismissed Mrs Armstrong and, in particular, in dealing with the other posts to one of which they might possibly have transferred her they said this:

"7. ... To exclude the applicant from any chance of her taking the Edinburgh job on the basis that she was not a Scot was quite improper."

So in so far as exclusion from that job on the basis of not being a Scot is concerned she has in effect been compensated so far as the jurisdiction in unfair dismissal for compensation awards is concerned, because no deduction whatever was made on the basis that she might still have been dismissed.

She has, however, brought a second application to the Industrial Tribunal on the basis of racial discrimination, and that relates to this same Scottish post. The primary events of course occurred, as I have indicated, on 2nd June 1994, but Mrs Armstrong's case is that she was not in a position to make a claim for racial discrimination if she did not know that it had occurred, and her case is that she had no such knowledge until 4th November 1994, during the course of the unfair dismissal hearing in the Industrial Tribunal. Since her application on the ground of racial discrimination was received by the Industrial Tribunal office on 30th January 1995, that would have been just in time had the 4th November 1994 been the relevant date. But the Chairman of the Industrial Tribunal dismissed her application on the basis that there was no jurisdiction to hear it because was out of time, and in the course of his reasons the Chairman dealt with this very point of what was the date at which she became aware that she might have a claim for racial discrimination, and he dealt with it in this way:

"6 Accepting for the moment that this was racial discrimination, she was told of the discrimination by a letter dated 19 October a copy of which arrived at the tribunal office on the 20th. It is reasonable to assume that she received her copy on that date."

I interpose that before us Mrs Armstrong confirmed that she did in fact receive the letter on that date, 20th October 1994. The reasons go on:

"7 She had, therefore, from 20 October when she knew of a possible claim for racial discrimination. ..."

So there is a finding of fact that 20th October 1994 was the relevant date and of course the application on the 30th January 1995 on that basis was out of date. (The Chairman has in fact treated the application as having being made on 29th January 1995, the date of Mrs Armstrong's signature of the notice of application; he was thereby giving her effectively the benefit of a day, because the relevant date is the date of receipt by the Tribunal on 30th January 1995.)

Now that letter is before us and it includes this sentence:

"You were not considered for these positions, [that is a number of positions including the Edinburgh one, and dealing with that the letter goes on] ... Because of our competitive situation in Scotland we required a Scottish candidate for media purposes who had local knowledge."

It is not for us to decide whether that was sufficient notice of the basis of a racial discrimination claim, although we cannot avoid observing that it seems a pretty plain statement. What matters is whether the Chairman was erring in law in finding as a fact that it was sufficient notice, and we cannot possibly conclude that there was any error of law on his part. It was a finding of fact to which he was entitled to come, and there is no appeal to us on fact.

In view of the fact that Mrs Armstrong represented her own case, and had no legal representation before us, we did ask her about another matter which is not I think referred to in her Notice of Appeal, and was not until we raised it mentioned by her. That is that in the course of giving his reasons as to why it was not just and equitable for the period to be extended - and of course he was considering that, as he plainly understood, in the context of a fairly modest over-run of the period, only some nine or ten days - in dealing with the question of whether it was just and equitable the Chairman said this:

"8 ... Losses have already been assessed in respect of her dismissal and the respondents have paid, I assume, £7,017.54. If she succeeded in this claim at the very most she would have a further and only modest claim for hurt feelings. Any other losses are already awarded."

And in his very last paragraph he again refers to the small size of the claim, so plainly that was a matter which he took into account. And then in the same context he also said:

"9 I have to have regard to the interests of both sides. It is a significant factor that the respondent would be called to face another claim arising from the same dismissal."

Prompted by us, Mrs Armstrong said that she did wish to submit that those were matters which the Chairman was not entitled to take into account, and therefore we considered that matter, but we have come to the conclusion that those were matters which he was entitled to take into account in exercising the very wide discretion which was his and his alone of considering whether it was just and equitable to extend the time.

We therefore find no error of law on the part of the Chairman, and must dismiss Mrs Armstrong's appeal.