United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR GRIFFITH-JONES (of Counsel) Messrs Lovell White Durrant Solicitors 65 Holborn Viaduct London EC1A 2DY
For the Respondent	MS H GREWAL (of Counsel) Commission for Racial Equality Elliot House 10-12 Allington Street London SW1E 5EH


 


JUDGE PETER CLARK: On 19 October 1995 Mr Patel presented a complaint of unlawful racial discrimination against the Respondents, Texaco Ltd & Mr Saunders, who was at the material time employed by Texaco as Regional Manager.

By their Notice of Appearance the Respondents took two preliminary points; first, that the Applicant was not in employment, as defined in Section 78(1) of The Race Relations Act 1976 ("the 1976 Act"); secondly, that the complaint was timed-barred.

Both preliminary issues came on for hearing before a Chairman sitting alone at the Stratford Industrial Tribunal on 9 October 1996. The first issue was not pursued by the Respondents. Accordingly, the Chairman was concerned only with the limitation point.

Section 68 of the 1976 Act provides so far as is material:

"(1) 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.

(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."

The Complaint

In 1984 Mr Patel entered into a tenancy agreement with Texaco in respect of the Victory Service Station at Walthamstow; in October 1991 he took over the East Finchley Service Station on a similar basis. He is Asian.

On 9 March 1995 he purchased the Victory from Texaco. On 31 March 1995 he vacated the East Finchley site, having surrendered the lease on that site at the suggestion of Mr Cruise, the area manager, in February 1995.

He makes three complaints of less favourable treatment on the grounds of his race:

(1) that he was pressured into surrendering his lease of the East Finchley site;

(2) that from mid-1993 to March 1995 Texaco failed to provide a proper level of price support, that is assistance in maintaining price levels to ensure that he could compete with rival petrol stations and

(3) that his request for alleviation of throughput rental was refused.

He contends that such treatment was not meted out to white site operators.

Limitation

It was accepted on his behalf that the first two complaints related to the period September 1993 to March 1995 and therefore fell outside the primary limitation period. The Chairman found that the third complaint arose in July 1995, that is, after the employment relationship ended in March 1995. Accordingly that matter could not be directly relied upon by Mr Patel. See Adekeye v The Post Office No.2 [1995] ICR 540 (EAT); affirmed by the Court of Appeal [1997] ICR 110.

Thus, the question for the Chairman was whether or not to exercise his discretion under the just and equitable provision in Section 68(6) of the 1976 Act.

In considering that question he took into account the following factors:

(1) That legal advice was available to Mr Patel prior to 31 March 1995, albeit he may not have sought advice specifically on the question of racial discrimination. His then Solicitors were advising him principally on the commercial aspects of relationship with Texaco.

(2) The "key factor", as the Chairman found, that on about 20 July 1995, Mr Patel spoke with Mr Cruise, who by then had left Texaco's employment. Mr Cruise told him of a white man who had been more favourably treated on the question of alleviation, and that Mr Patel was in the same boat as other Asians who had been discriminated against by Texaco.

(3) That Mr Patel, as a member of a racial minority group, would require a greater certainty before launching an action against an organisation such as Texaco, then would a white comparator, being a prudent man in a small way of business.

(4) Having spoken to Mr Cruise, Mr Patel promptly contacted the CRE, however, no complaint was presented until 19 October 1995 on the basis that the CRE had asked him when his complaint had arisen; he said 20 July; the CRE accepted that date without more, leaving it to the last day of the three month period, taking that date as the relevant starting date.

(5) That there was a public as well as private interest in the case being properly litigated between the parties.

Overall, although regarding it as a case very close to the high water mark beyond which it would not be right to exercise his discretion in favour of allowing the matter to proceed, he did so exercise his discretion.

The Appeal

The principles to be applied in considering an appeal against the exercise of a Chairman's discretion under the just and equitable principle are set out in Hutchison v Westward Television Ltd [1977] ICR 279, a case concerned with the equivalent provision under The Sex Discrimination Act 1975. At page 282 E, Phillips J, giving the judgment of the EAT, said this:

"The third thing we have to say about section 76(5) [of the SDA, Section 68(6) of the 1976 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 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."

This Appeal Tribunal has recently underscored the difficulty facing Appellants in attacking the exercise of an Industrial Tribunal's discretion under the just and equitable provision in Hawkins v Ball & Barclays Bank Plc [1996] IRLR 258. In that case Keene J observed that the just and equitable provision gives a wider discretion to Tribunals than the reasonably practicable ground for extending time under the unfair dismissal legislation.

Having considered the submissions made to us by Counsel we are concerned with two of the factors which the Chairman took into account in reaching his conclusion. They are factors (3) and (5) identified above.

Ms Grewal acknowledges that neither was advanced by her in argument below on behalf of the Applicant, nor were they raised by the Chairman in the course of argument, and we think it fair to say that she has had some difficulty in articulating their relevance to the overall circumstances which the Chairman was entitled to take into account.

In our judgment they were irrelevant factors. We can see no relevance in generalising about the degree of certainty in litigation which a member of the ethnic minorities would require before embarking on this type of litigation when compared with a white litigant. Similarly, we cannot see where the public interest in this piece of private litigation can amount to a relevant factor in the exercise of discretion to extend time simply because of the seriousness of the allegation, there having been no attempt made by the Chairman to assess the strength or weaknesses of the allegations.

In our view the Chairman fell into error in taking into account these two irrelevant factors. Particularly where, on the Chairman's findings, this case was very much on the borderline, it seems to us that this decision cannot stand and must be set aside. We shall now hear further submissions from Counsel as to what course we should take in the light of our conclusion.

Mr Griffith-Jones submits that we should allow the appeal and substitute a finding that the case be not permitted to proceed in the light of the limitation provisions. He says that, taking out the two irrelevant factors, as we have found them to be, the result would be inevitable on remission to another Tribunal and we should say so here and now.

Ms Grewal submits that we should remit the matter. This is a case which involves the exercise of a wide discretion and that cannot properly be done without hearing all the evidence.

We prefer Ms Grewal's submission and we shall remit the matter to a fresh Industrial Tribunal, the composition of which will be a matter for the Regional Chairman.