United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 633_95_1107

Appeal No. EAT/633/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 11 July 1995

HIS HONOUR JUDGE N BUTTER QC

MR R JACKSON

MRS M E SUNDERLAND JP

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(1) LONDON BOROUGH OF HACKNEY

(2) MR R MICHAEL          APPELLANTS

MR Y O SAMPONG          RESPONDENT

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Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised


 


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APPEARANCES

For the Appellants MR D WOLFE

(of Counsel)

Chris Hinde

Hackney Legal Services

London Borough of Hackney

298 Mare Street

London

E8 1HE

For the Respondent IN PERSON


 


JUDGE N BUTTER QC: On 26 January 1994 the Applicant presented an Originating Application claiming that he had been discriminated against on racial grounds contrary to The Race Relations Act 1976. He set out various details of his complaints which can be found at page 18 of the main bundle. He makes allegations against a Mr Michael, Director of Planning and Environmental Services, and he says:

"Mr Ray Michael .... has since 1988, by acts of commission, and wilful omission, been treating me less favourably than he treated Mr Nathen Scheiner, who is white, in disciplinary matters. .... ."

He goes on to make a further allegation against Mr Michael conspiring to have the Applicant dismissed and further, he goes on to allege that Mr Michael wilfully failed to carry out investigations on the 3rd of April 1990 and has continued to act to the detriment of the Applicant and as he says, suffered detriment accordingly.

The Applicant retired from employment with the Respondents on 28 January 1992. There were obvious concerns that the Applicant was seeking to deal with events going back many years and, in view of the time factor, the Respondents asked the Industrial Tribunal at London (South) to deal with the question of jurisdiction.

Section 68 of the 1970 Act deals with the situation in sub-section 1, the effect of which is to impose a time limit of three months beginning when the act was done. But under sub-section 6 it says:

"(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."

Mr Sampong in these proceedings relies heavily and repeatedly upon that sub-section. Sub-section 7 says:

"(7) For the purposes of this section -

(a) ....

(b) any act extending over a period shall be treated as done at the end of that period; .... ."

The Tribunal unanimously decided that it did have jurisdiction. It is against that decision that the Respondents below appeal to this Court.

The Tribunal gave detailed reasons for its decision. It set out the facts. It had heard oral evidence. It referred in its decision to the past history, including the position of Mr Boateng, who formed part of the matters which had to be considered by the Tribunal and there was reference to a letter which had been written on 9 March 1993 when the Respondents wrote to Mr Boateng's Solicitors saying, among other things, "that should your Client persist in making such claims (a reference I think to allegations) "his conduct will not go unchecked by the Council".

The decision of the Tribunal was based upon its consideration of the history and facts to which I have referred, and it may be convenient if I refer to the findings in paragraph (c) of paragraph 6 which appears at page 9 of our bundle. The Tribunal says:

"(c) The Applicant did not have in his possession relevant evidence suggesting that he might have been subjected to racial discrimination when compared to the treatment accorded by Mr Michael to Mr Scheiner until he had sight of correspondence received from Mr Boateng. Towards the third week of May 1993 Mr Boateng asked the Applicant to attend the Tribunal hearing as his witness. The correspondence which was attached to Mr Boateng's letter provided the Applicant with evidence that led him to believe that he was discriminated against. He wrote to Mr Michael on 21 May expressing his concerns and asking for copies of certain documents and reports."

That request was dealt with later and was refused on 21 October 1993. On 21 December 1993, at the Tribunal relating to Mr Boateng, the Applicant himself attended and heard the oral decision the effect of which was, that Mr Boateng had succeeded.

I turn to consider the Tribunal's assessment of the position as to delay. The Tribunal considered the Applicant's arguments. We can see that from paragraph 8 of their reasons and considered his point as to continuing detriment.

The Respondents' submissions were also summarised and dealt with in the following paragraph, the Respondents had the advantage having Mr Wolfe, who has appeared today, appearing on their behalf, and presenting much the same arguments as he did here. He said that there was not a continuing act of discrimination, but merely arguably the consequences of an act.

"The Law" was then set out in the decision and it may be convenient if I turn to paragraph 11, the "Assessment". The Tribunal began by drawing attention to the fact that they have "a very wide discretion". They drew attention to the fact that this was, although unfettered, "to be exercised judicially and having full regard to principles of fairness and equity".

The assessment conclusions are then set out. They rejected "the Applicant's submission that his cause of action crystallised on 21 December 1993" when he heard the oral decision in favour of Mr Boateng. They went on to say that he "knew at the very latest by 21 May 1993 the basis upon which he believed that there had been racial discrimination". I can miss out a few sentences and go on to say:

"11. (b) .... The Tribunal considered that the Applicant, who was relying on the same comparator as Mr Boateng, took the view that if he persisted in making a claim that was dismissed, and possibly regarded as malicious or frivolous, he would face the prospect of further action by the Council".

The Tribunal goes on to say:

"It was therefore reasonable for him not to commence proceedings until he obtained further information to enable him to decide whether or not to take such a risk. It is for this reason he wrote to the Respondents requesting information which is relevant to the case that he is now putting forward."

Mr Wolfe criticises the phrase "It was therefore reasonable for him", but it seems to us that there was material to enable the Tribunal to make that assessment and to express it in the way that they did.

They go on to deal with a number of other matters (and I need not read out the following sub-paragraphs) but in relation to (e), towards the end, Mr Wolfe draws attention to what appears to be an inconsistency between the latter part of that and paragraph 13. Mr Wolfe has taken us through the various grounds set out in the Notice of Appeal. He argues, among other things, that no reasonable Tribunal could have reached the decision it did.

In relation to the question of continuing detriment we were referred to the case of Sougrin v Haringey Health Authority [1991] ICR 791. He argues that the Tribunal should have paid particular regard to the fact that some matters at least in the Applicant's case relate to events in 1988, 1989 and 1990 and that the Tribunal should, at least, have considered the whole period from 28 January 1992 to January 1994 and not taken May 1993 as though it were a starting point.

The effect of the Tribunal's findings however was that it was in May 1993 that the Applicant learnt of the basis upon which he might allege there had been discrimination. The Tribunal gave their reasons for that conclusion.

Today, Mr Sampong in reply, has relied heavily upon the section to which I have referred and seemed (if I may say so with respect) not to be prepared to deal with specific points in the Notice of Appeal. He had not, it seems, applied his mind to them, so confident was he of the Tribunal's discretion being unfettered and therefore, in effect unchallengeable here.

We have been referred to various authorities by him dealing with this point and they are, undoubtedly, of importance. The general principle is not disputed by the Respondents. It may be convenient if I refer to one passage only in the case of Hutchison v Westward Television [1977] ICR 282 at letter E. The then President said:

"The third thing which we have to say about section 76(5) [that related to the 1975 Act] is this. Because it is such a wide discretion conferred upon an industrial tribunal, the task which an appellant has in such a case is a heavy one. Really he must show, if he is to succeed upon appeal, that the industrial tribunal demonstrably took a wrong approach to the matter, or that they took into account facts which they ought not to have done, or that they failed to take into account facts which they should have done, or, as a last resort which is always open upon an appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed tribunal could have reached it."

Here we have considered the position with real anxiety. In the end we are not persuaded that the Tribunal below took a demonstrably wrong decision or reached a decision which no reasonable Tribunal could have reached. It does not follow that we, ourselves, would have exercised our discretion in the same way as that Tribunal did, but that is not the point.

We are unanimous in our conclusion that we should not interfere with the exercise of the Tribunal's discretion. The appeal fails and is therefore dismissed.