United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MISS SARAH MOOR (of Counsel) Messrs Veale Wasbrough Solicitors Orchard Court Orchard Lane Bristol BS1 5DS
For the Respondent	MR RICHARD HARRISON (of Counsel) Messrs Blaser Mills Winter Taylors Solicitors Littlestone House High Street Marlow Buckinghamshire SL7 1AN


 


JUDGE PETER CLARK: On 24th June 1996 the employee, Tariq Ahmed, presented a complaint of unlawful racial discrimination against his employer, Great Mills (Central) Ltd to the Central Office of Industrial Tribunals. On 14th February 1996 the matter came before a full tribunal sitting at London (North) to hear a preliminary issue, namely whether the complaint was time-barred. The tribunal concluded that although the complaint was presented outside the ordinary three month time limit provided for in s.68(1) of the Race Relations Act 1976, it would exercise its discretion under s.68(6) of the Act and allow the complaint to proceed on the grounds that it was just and equitable to do so. Extended reasons for that decision, against which the employer now appeals, are dated 27th February 1996.

The respondent had been continuously employed as a sales assistant at the appellant's Chesham store, which is a retail outlet for DIY materials and equipment, since 16th July 1988. On about 10th September 1994 he suffered injury to his back in an accident at work. He returned to work on 15th September but 10 days later suffered a recurrence of back trouble. In October 1994 he went of work sick and has not since returned. In October or November 1994 he consulted the Citizens Advice Bureau and as a result of advice received instituted an internal grievance alleging racially discriminatory treatment in his employment. His written complaint runs to some 22 manuscript pages. It was put before the Industrial Tribunal and is before us.

A number of specific allegations are raised, directed in the main against the Chesham store manager, Richard Abercrombie. In particular, the respondent complained of racially discriminatory treatment in connection with his accident at work on 14th September 1994 and an earlier accident on 15th May 1993, and his subsequent disabilities; underpayment of wages; refusal to consider him for promotion to Assistant Manager in August 1994; failure to deal with an incident of racial abuse by an external driver shortly after the accident in May 1993; staff purchases; and racial jokes. These complaints covered a period from 1990 until his going off work in October 1994.

The grievance went through three stages internally. Finally it was dismissed. Shortly thereafter he presented his complaint to the Industrial Tribunal.

The Industrial Tribunal's reasoning

Having found that no material complaint of discrimination arose during three months prior to the presentation of the complaint, the tribunal rejected the respondent's contention that he was unable to present his complaint earlier due to illness. Its reasons for allowing the matter to proceed are summarised in paragraph 9 of the extended reasons in this way:

"9 Mr Southam [Solicitor for the appellant] put to us that the fact that the Applicant was pursuing a grievance is not a reason to extend the time. He quoted to us a case which relates to unfair dismissal. It seems to us that extension of time is a case of unfair dismissal is on a quite different basis from extension of time in a discrimination claim. In the former the Tribunal is looking at fixed dates and the question of practicability. In the latter the discretion is much wider. It seems to us that when there is a proper grievance procedure available internally and the Applicant is still an employee and hoping to continue the employment relationship, it would be wrong of a Tribunal to insist that an application to a Tribunal should be made. There is no doubt that a formal application to an outside body tends to establish positions and made it more difficult for the employee to continue in employment. In our view the Applicant acted quite properly on good advice from the C.A.B. that he should pursue his claim internally. He did so and on the information given to us the investigation was properly carried out giving the Applicant every opportunity to put forward his claim. However at the end of that grievance procedure he was not satisfied as to the outcome and immediately made his application to the Tribunal. We think it would be wrong to deny him an independent consideration of the circumstances which he pursued internally. Although this has not weighed heavily with us, we have also taken into account the fact that the Applicant does appear to have some support for the allegations that he had made which ought to be the subject of investigation. Accordingly we have decided that a full Tribunal will consider this complaint even thought this application is out of time as we consider it is just and equitable to do so."

The Law

S.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.

(7) For the purposes of this section-

...

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

(c) a deliberate omission shall be treated as done when the person in question decided upon it;

..."

The escape clause under s.68(6) of the 1976 Act may be contrasted with that applicable to unfair dismissal and what were Wages Act complaints. For example, in relation to unfair dismissal complaints, s.111(2) of the Employment Rights Act 1996 provides:

"(2) Subject to subsection (3), an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal-

(a) before the end of the period of three months beginning with the effective date of termination, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months."

The distinction between the 'just and equitable' and 'reasonable practicability' tests for extending time, relied on by the appellant's solicitor below, was clearly identified by the Employment Appeal Tribunal in Hutchison v Westward TV Ltd [1977] ICR 279. In that case Phillips J made three observations about the then recently enacted, identical provisions of the Sex Discrimination Act 1975:

(1) the words 'in all the circumstances of the case' relate to the matters relevant to the question raised by s.76(5) of the 1975 Act (s.68(6) of the 1976 Act).

(2) the words of the section give industrial tribunals a wide discretion to do what is just and equitable in all the circumstances. Those are very wide words. Little assistance is to be derived from the different tests elsewhere in the legislation. The tribunal is to do what it thinks is fair in the circumstances.

(3) because the tribunal's discretion is a wide one the task for an appellant who challenges the tribunal's exercise of that discretion in individual case is a hearing one. In order to succeed it will be necessary to show perversity in the Wednesbury sense.

A recent example of the application of those principles by this appeal tribunal is to be found in Hawkins v Ball & Barclays Bank [1996] IRLR 258. There, the applicant complained of unlawful sex discrimination. She presented her complaint on 1st June 1995. The incidents relied upon covered a period from December 1993 to 16th January 1995. Between 18th and 20th January 1995 she consulted a solicitor who advised her that the last incident was nothing and any complaint of sex discrimination was out of time. She was eventually encouraged to commence proceedings by a friend of her father in May 1995. In allowing the matter to proceed an Industrial Tribunal took into account the fact that she received incorrect legal advice. On appeal, it was argued that this was an irrelevant consideration which the tribunal ought not to have taken into account.

In rejecting the appeal Keene J, in giving the judgment of the appeal tribunal, said this at paragraph 28:

"We therefore, return to the wording of s.76(5) of the Sex Discrimination Act itself. We cannot say that the obtaining of incorrect legal advice is irrelevant to a decision on what is just and equitable in all the circumstances. The obtaining of incorrect legal advice may well constitute a reason for a delay which has occurred and in those circumstances it is potentially relevant. We can see no reason to limit the width of the broad discretion given to an industrial tribunal by the statute in that particular respect. For the same reason, while we may not have come ourselves to the same exercise of discretion as the tribunal below on this particular matter, we find it impossible to say that no reasonable tribunal properly directing itself would find that it was just and equitable to extend time in these circumstances."

The Appeal

Miss Moor, on behalf of the appellant, recognising the limited grounds upon which we can interfere with the tribunal's exercise of so wide a discretion, identifies the point in this appeal in this proposition; the Industrial Tribunal erred in law in failing to take into account a relevant factor, namely the date of each individual act of discrimination complained of by respondent. She submits that nowhere is this question addressed in paragraph 9 of the reasons, and only passing reference is made to the respondent's numerous complaints in paragraph 2 of the reasons. Alternatively, she contends that this tribunal's written reasons fail to give adequate reasons for their decision. The question of the dates of individual complaints is simply not dealt with. She accepts that the tribunal is entitled to take into account as part of the relevant circumstances, the reasons for the delay after the respondent when off work in about October 1994, in particular, the advice, whether good or bad, which he received from the Citizens Advice Bureau to pursue an internal grievance, and the consequent lengthy internal grievance procedure. But, she says, the relevant circumstances also include the delay prior to October 1994, stretching back as far as 1990.

In response, Mr Harrison makes two points. First, he submits that the complaint here is one of an act of discrimination extending over a period of time under s.68(7)(b) of the 1976 Act, rather than a series of "one-off acts". See Owusu v London Fire and Civil Defence Authority [1995] IRLR 574. In these circumstances, it is not relevant to consider the date of each individual complaint constituting a series amounting a continuing act. Time runs from the end of the period, and that is October 1994. The tribunal correctly focused on the period after that date. Alternatively, he submits, even if this is a case of one-off acts, it is clear that the tribunal took into account the dates of each act complained of contained in the respondent's 22 page grievance document which was before the Industrial Tribunal.

In our judgment, Mr Harrison's argument is to be preferred. We are satisfied that the tribunal permissibly approached the case on the basis of a series of acts of discrimination, particularly by the manager, Mr Abercrombie, which covered the period 1990 to October 1994.

Alternatively, we are unable to say that the tribunal failed to take into account the dates identified in the respondent's grievance complaint, or that they have failed to give sufficient reasons for their decision.

In these circumstances the appeal must be dismissed.