United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether Mr Kumapley has an arguable point of law in an appeal which he wishes to progress against a decision of an Industrial Tribunal held at Brighton on 15th September 1995. By that decision, which was of the Chairman sitting alone, it was determined that the tribunal did not have jurisdiction to hear his claim of wrongful dismissal, unfair dismissal and racial discrimination.

Mr Kumapley had started employment with a firm of solicitors Burt Brill and Cardens as office manager on 5th October 1992. He was well qualified for that position. On 31st January 1995 he was suspended following an allegation of sexual harassment made against him by a female member of staff. Following a disciplinary hearing he was summarily dismissed on 28th February 1995.

The case involved his employment in the Brighton area. Following his dismissal he consulted three firms of solicitors, all of whom declined to act for him as Legal Aid was not available, thought all three solicitors advised him that proceedings in the Industrial Tribunal must be commenced within three months. Mr Kumapley told us today, and we accept, that he had difficulty in obtaining assistance from solicitors in the local area.

According to the Industrial Tribunal, and no suggestion has been made that this was an inaccurate statement, Mr Kumapley was also given a book entitled "Industrial Tribunal Procedure" by the Employment Office, where he signed on two weeks after his dismissal, and in that booklet there is written advice as to the time limits for commencing proceedings. In addition, Mr Kumapley took his case to his member of Parliament, and by a letter dated 25th April from the Parliamentary Under Secretary of State at the Department of Employment to his MP, which was copied to him, it was stated that complaints must normally be made within three months of the date when discrimination last took place, or in the case of unfair dismissal within three months of the date of dismissal.

The time limits for bringing proceedings before an Industrial Tribunal are expressed in different terms in different parts of the legislation. For relevant purposes, an application in relation to race discrimination must be lodged or presented before the end of the period of three months beginning when the act complained of was done. But tribunals have a discretion to consider applications which are out of time, if, in all the circumstances of the case, they consider that it is just and equitable to do so.

The Industrial Tribunal at Brighton applied its mind to that test, and in paragraph 11 of the decision the Chairman says that he does not consider that it would be just and equitable to extend the time for presenting the claim alleging racial discrimination, and refers to the clear and unambiguous advice from the Parliamentary Under Secretary of State that a complaint must be made within three months of the date when discrimination last took place.

It is to be noted that Mr Kumapley was under a period of suspension. If his application alleging race discrimination had been made shortly after the letter of 25th April to which reference has been made, and after the time had expired, one can understand an Industrial Tribunal concluding that it might be just and equitable to hear such a complaint having regard to the fact that the applicant was under suspension and might reasonably have concluded that it would not be appropriate to lodge a complaint until after the disciplinary hearing. Those were not the facts. The application to the Industrial Tribunal was not presented until 31st May 1995, by which it was more than three months from 28th February 1995. In that connection, the tribunal had to consider whether it was reasonably practicable for a claim to have been presented within the time limit, and concluded that his claim in relation to the termination of his employment could have been presented within the time limit, that it was therefore reasonably practicable for him to have complied with the time limit, and accordingly they had no jurisdiction to entertain his claim arising out of the termination of his employment.

We have to say that none of us considers that there is any arguable point of law against the circumstances in which the tribunal have carefully set out their conclusions in relation to this application. We are all of the view that as a matter of law, the tribunal's decision cannot be criticised. They have had regard to the correct tests, and to the relevant facts. But that said, all of us are of the view that it is perhaps unfortunate in this case that Mr Kumapley's complaint against his former employers will now not be capable of being heard and determined in the Industrial Tribunal, although of course whether he has any rights in any other tribunal is not a matter on which we can express a concluded view, but we imagine that he can make a complaint to the County Court in relation to the contractual claim he may or may not have in this case.

We therefore conclude, that there being no arguable point of law, and with a somewhat heavy heart, we cannot entertain this appeal. Our jurisdiction is confined by statute, and this appeal does not fall within it. Accordingly, we dismiss this appeal.