United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR EPSTEIN (of Counsel) ELAAS


 


JUDGE J HICKS QC: Mr Mears was employed by the Respondents, Centrepoint, and on 18 March 1994 he was suspended because of an investigation into what the Industrial Tribunal refer to as "a burglary". There was a disciplinary hearing into that allegation, which took place on two dates, 26 April and 4 May 1994, at which Mr Mears was represented by a union representative. The disciplinary charge was found not proved and the suspension was withdrawn.

The reason for Mr Mears' complaint to the Industrial Tribunal, which was a complaint of racial discrimination, was that as emerged in the course of the disciplinary hearing the employers, or at least those members of the management who were conducting the complaint against Mr Mears, were not able to advance a case, as he had perhaps originally assumed, on the basis that the burglary had occurred at a time when he was on duty, because the case put before the disciplinary hearing was that it occurred on one of three dates, namely 18, 19 or 20 February 1994, whereas Mr Mears, through Mr Epstein, tells us that in fact he was on duty on only the 19th and 20th, not on the 18th, when two white employees were on duty who were not suspended and that was the basis and is the basis of his complaint of racial discrimination.

We should say at once that the decision of the Industrial Tribunal puts the dates the other way round, namely that it was Mr Mears who was on duty on the 18th and the other two employees on the 19th and 20th, whether one on each or both on both does not appear. However, it seems to us that that makes absolutely no difference to any issue which was before the Industrial Tribunal or before us; the point was that there were a spread of possible dates. Mr Mears was not on duty on all of them. He was not therefore, he submits, any more, as it were, a suspect than those on duty on the other date or dates, and yet he was suspended and the other white employees on duty on the other date or dates were not, and quite clearly the Industrial Tribunal had that firmly in their minds as the substance of the complaint.

The complaint therefore arose out of something which happened on 18 March 1994, namely Mr Mears' suspension, and the time limit for an application for racial discrimination was therefore three months later, 18 June 1994. In fact the application was not lodged until 26 August, over two months out of time, and the Industrial Tribunal was therefore asked to consider, and did consider, whether it should consider the complaint out of time on the basis established by Section 68(6) of the Race Relations Act 1976, which provides that a court or tribunal may nevertheless consider any such complaint (that is to say, in this case, a race discrimination complaint) 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. There is no doubt that those words 'in all the circumstances of the case' and the test of what is 'just and equitable' give a wide discretion to the Industrial Tribunal.

The Industrial Tribunal found that it was not just and equitable to extend the time and the application therefore failed on that basis before any question of a consideration on the merits. It is against that decision that Mr Mears appeals. This is a preliminary hearing of that appeal and the question for us, therefore, is whether there is any arguable ground on which it could proceed to a full hearing.

We remind ourselves that our jurisdiction to entertain appeals against decisions of Industrial Tribunals is confined to errors of law. The basis upon which the Industrial Tribunal was asked to exercise its jurisdiction to extend time was that it was not until 5 July 1994, when Mr Mears was sent a transcript of the proceedings at the disciplinary hearing, that he realised that the employers were putting forward these three dates and that therefore, as he alleges, he had been discriminated against as being the only one of the three employees to be suspended.

The Tribunal's reason for coming to the conclusion that it was not just and equitable to extend time was contained in paragraph 4(e) of their Reasons, in which they make this finding of fact among a list of findings of fact:

"At the disciplinary hearing, the applicant and his representatives were in attendance throughout. A witness, Mr Hall, gave evidence that the burglary occurred on either 18, 19 or 20 February 1994. The applicant and his representatives heard that evidence and, at the time of the hearing, knew that the applicant was the only employee to be suspended; they also knew that the two employees on duty on 19 and 20 February had not been suspended."

On that finding of fact, therefore, Mr Mears was aware of the facts which founded his complaint well before the expiration of the three months period during which he could make the complaint and on that finding of fact, Mr Epstein, on Mr Mears' behalf, as we understand it, if the finding were to stand and not to have been reached under any error of law, does not submit that the Tribunal could not properly have reached the decision which they did reach.

The basis of the appeal to us is that, at the hearing before the Industrial Tribunal, the only oral evidence was that of Mr Mears himself who, we are told, gave evidence that he did not recall this evidence of Mr Hall at the disciplinary hearing The evidence that Mr Hall had given such evidence was only that of the transcript and it is said that, as has since become known to Mr Mears, there was a tape from which the transcript had been transcribed which itself is not now available and was not available perhaps at the time of the Tribunal (I am not absolutely clear about that).

It seems to us that there are two reasons why that cannot be a ground for arguing that the Tribunal erred in law. The first is that there was evidence before the Industrial Tribunal of what had occurred at the disciplinary hearing, namely the transcript, showing that the relevant information had emerged, and Mr Mears' evidence that he did not recall that happening. The transcript was of course secondary evidence, technically in law hearsay, but it is common ground and not contested by Mr Epstein that the Industrial Tribunal was not bound by the strict laws of evidence of courts of law and was entitled to take that evidence into account. The weight which it gave to that evidence against Mr Mears' direct oral testimony that he could not recall it was a matter for the Tribunal, and their finding of fact that the information did emerge at the disciplinary hearing in Mr Hall's evidence in our view discloses no error of law whatsoever. It could be attacked, if it is to be attacked at all, only as a mistake or error of fact and that is not within our jurisdiction.

But there is a second and independent reason why we are satisfied that there is no arguable ground for this appeal and that is that, although the case which Mr Mears wishes now to put forward is that which I have described, namely that he had at the hearing of the Industrial Tribunal and has now, as we understand it, no recollection that Mr Hall gave the relevant evidence before the disciplinary hearing, Mr Mears wrote a letter to the Chairman of the Industrial Tribunal on 19 June 1995, in which he pursues this point over some six pages, setting out the full history, including substantially more detail than I have rehearsed in setting the scene, in what reads as a very coherent and articulate way and in that letter, dealing with this very point of the finding by the Tribunal that he had heard Mr Hall's evidence on the point of the three dates at the disciplinary hearing, he makes two points. He makes a number of points but there are two particularly germane to the issue before us.

The first is this. He writes:

"After my suspension, I received a copy of his [Mr Hall's] pre-investigation 'notes' which detailed that he referred to these dates and Peter and Elane at the time of that meeting."

That meeting was a meeting on 18 March when the suspension took place. Mr Mears goes on:

"Because I had been at that meeting, I knew this was a lie."

The point of that remark is that it is Mr Mears' case, and for the purposes of the present application both the Tribunal and we accept, that at the meeting of 18 March the fact that there were three dates had not been mentioned, so it seems to us absolutely plain that, in that paragraph, Mr Mears is saying that he did, at or before the disciplinary hearing, know that three dates were in question and that two other employees were in question who might have been suspended.

A little later, in the same document, Mr Mears says:

"Consequently, although I heard Tonys [Mr Hall's] evidence at the [disciplinary] hearing, I could not accept it, because of his omission and my knowledge that he had lied."

In other words, he is again saying "I knew this was what Mr Hall was saying, but it was contrary to what he had said on 18 March and therefore I disbelieved it". The point for present purposes is not whether he believed it or not, but whether it was known to him by the time of the disciplinary hearing at the latest that the employer's case was that the burglary had occurred not specifically on the night or nights when he was on duty, but on a night or nights which included ones when he was not on duty and when other white employees were.

It seems to us that it quite impossible for Mr Mears, in the face of that, now to advance an arguable case that he did not know and that the Tribunal erred in law or, indeed, at all in finding that he did know, and for those reasons we must dismiss the appeal.