United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C UMEZURUIKE (of Counsel) Messrs Andrews Solicitors 92A Rye Lane London SE15 4RZ
For the Respondents	MR S S SOOR (of Counsel) Messrs Kingsford Stacey Blackwell Solicitors 14 Old Square Lincolns Inn London WC2A 3UB


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against the decision of an Industrial Tribunal, which was held at Stratford, London on 12 November 1997. The parties were both represented by Counsel at that hearing. The complainant had alleged in his IT1 that he had been unlawfully discriminated against:

"1. Racial Discrimination

On March 26, Barbara Booth (white, for respondent), hearing officer of applicant's grievance against another manager, Mick Owens (white), dismissed applicant's grievance. Through the course of the hearing, the applicant's allegations were not denied by the grievance perpetrator, Mick Owens; he blatantly admitted to them all. Applicant's grievance rested on victimisation and abuse of managerial position both of which were preponderantly substantiated. Even Mrs Booth's decision letter took cognisance of that fact. But because the applicant is black, Mrs Booth though recognising Mr Owen's ill-treatment of applicant chose to dismiss applicant's valid and proven grievance in favour of her fellow white manager. I therefore feel, and very strongly too, that the outcome of the grievance would have been different were applicant white. It is the applicant's contention therefore that the Council, through its agent's has contravened s2.3(1) Race Relations Act 1976.

2. Victimisation

As an immediate trigger to applicant's grievance against manager, Mick Owens, applicant was refused the Council's top-up car loan even though qualified under the Council's prevailing procedure thereby causing applicant to incur a personal financial loss in excess of £1,000.00. The reason for refusal, given the admitted refusal circumstance, was clearly vindictive (details to be given). Applicant, as a Trade Union Shop Steward, has been pursuing a complaint relating to the Race Relations Act against another senior manager in the department who the service head, Mick Owens, has determinedly been protecting rather than investigating. At applicant's last meeting with Mr Owens in connection with this matter on November 20, 1996, applicant rejected Mr Owen's report on the matter as unsatisfactory. Therefore, come November 25 when applicant brought an application for a top-up loan to Mr Owens, he Mr Owens, without any idea whatsoever about car loans, turned down applicant's application before even finding out about the procedure. His decision could not be said to be anything but preconceived. There are other issues that applicant has pursued both as a TU steward and an individual asserting his right which Mr Owens personalised leading him to take discriminatory decisions against applicant; applicant shall elucidate on these at the appropriate time. Applicant therefore contends a wilful breach of ss2.1 and 4(2) Race Relations Act 1976.

Also the Council's treatment of applicant via its agents (including Mick Owens and others) undermines applicant's Trade Union membership rights and hence in breach of the relevant section of the Trade Union and Labour Relations (Consolidation) Act 1992."

The Respondents, the London Borough of Hackney and a Manager employed by the London Borough, took what may be described as a time-limit point. The purpose of the hearing before the Industrial Tribunal was to establish whether the Industrial Tribunal were prepared to take jurisdiction over the complaint.

The first question, therefore, that they had to decide was whether the complaint had been made within the three month time limit. The complaint was presented to the Industrial Tribunal on 26 June 1997 and, as it appears from its face, related in substantial part to a decision taken within the grievance procedure operated by Hackney. That decision was made by the grievance panel on 20 March, but the decision was communicated to the Applicant on 26 March. If time starts running from 26 March, the IT1 was still one day out of time, a fortiori if the time started to run from 20 March, which was the date of the uncommunicated decision.

Secondly, if the application was presented out of time then the Industrial Tribunal had to consider whether to exercise their discretion to extend the time, in other words to say whether it was just and equitable that time should be extended.

The Industrial Tribunal concluded that time started to run from 20 March, that the application was therefore presented out of time and that it was not just and equitable for the complaint to be received by the Industrial Tribunal and accordingly, they had no jurisdiction to consider his complaint.

The Appellant before us wishes to argue that the true date on which time started to run was not 26 March 1997, but rather 30 April 1997. In support of that submission Counsel, in an able argument, drew our attention to various peculiarities about the written decision of the panel.

In the first place the first communication which the Applicant had of the decision, was via a memorandum received in his department, which had annexed to it an undated, unsigned and unheaded document purporting to be a decision. That he received on 26 March. It was only later that the chairperson of the grievance panel indicated that the decision had been arrived at on 20 or 21 March and, because she was under pressure at work, she typed up the decision at home on unheaded paper and subsequently she signed it and backdated it to the date when she said the decision was made, namely 20 March 1997.

Counsel submitted to us that time could not start to run against the Applicant until he had been formally notified, in correct and proper form, of the decision of the grievance panel. On this issue Mr Soor, in a conspicuously able argument, submitted to us that on analysis, time started to run from the date when the decision was made, which he said was on 20 March and that, therefore, the Industrial Tribunal were correct to have taken that as the date from which time ran.

Mr Soor pointed out that the complaint, in relation to this decision was to be regarded as self-contained, and he submitted to us that there was nothing in the appeal which would have affected his cause of action in relation to the first stage of the grievance procedure. He rightly drew our attention to a decision of the Employment Appeal Tribunal, which had to consider from what date action short of dismissal occurred in a case under the 1978 legislation: British Airways Board v Clark & Havill [1982] IRLR 238. In that case it appears to have been conceded, but was also held as we understand it, that the action short of dismissal, namely reprimands, could not become effective or constitute actions within the section until they had been communicated to the employee. But, said Mr Soor, that case can be distinguished. He says it depends entirely on the nature of the action concerned, or the act being done.

On this issue we have to say that we are unanimously of the view that the Industrial Tribunal were wrong to have concluded that time started to run from 20 March. On analysis, what the Applicant was complaining of falls within section 4 (2) (c) of the Race Relations Act 1976, namely, that his employers had subjected him to a detriment; namely unlawfully dismissing his grievance brought against his Manager: unlawfully in the sense that the decision was tainted by race.

It seems to us that an Applicant must be able to identify the detriment to which he has been subjected before he can present a complaint and that where, as here, the act consists of a refusal to accept his grievance, then he was only subjected to a detriment when he was notified that his grievance had been rejected. That is precisely analogous to the decision of the Employment Appeal Tribunal in the British Airways Board case, which was also concerned with similar words.

In those circumstances we are satisfied that the Industrial Tribunal was looking at the question of the time provision on the wrong basis, but we reject the Appellant's argument that the application was presented within time, because time did not run until 30 April. We reject that submission because, it seems to us, it involves adding more to the words of the Act than is necessary. It seems to us that provided that the Applicant knew of the decision of the panel, the form in which that decision was communicated to him was not material and, it is to be noted that in his IT1 he was able to identify 26 March as being the date when his grievance was dismissed.

For those reasons it seems to us that the true date was 26 March and not 20 March, as the Tribunal had said in paragraph 6 of their decision. However, we agree with Mr Soor that the fact that a complaint was one day out of time rather than six days out of time, has little, if any, effect on the validity of their decision. It is a dangerous argument to present to an Industrial Tribunal, that because the application was only one day out of time, time should be extended. The logical outcome of that submission would be that time limits were to be extended day after day after day. Therefore, despite the fact that the Industrial Tribunal has erred in the date from which time ran, we would not have been prepared to allow the appeal on that basis.

We turn, therefore, to the matter which the Industrial Tribunal had to address their attention to, having reached the conclusion that the application had been presented out of time, namely was it just and equitable that time should be extended? Paragraphs 7 and 8 of the Industrial Tribunal's decision sent out their conclusions on this issue:

"7. The Tribunal does not consider that it is just and equitable to consider this complaint nevertheless. In reaching this conclusion, the Tribunal has had regard to all the circumstances of the case, including the extent of the delay and the prejudice likely to be caused by allowing the claim to proceed, and including in particular the reasons for the delay put forward by and on behalf of the Applicant. The Tribunal concludes that the Originating Application was not completed or submitted any earlier than it was for a combination of reasons: the Applicant was ignorant of the statutory time limit (and the date from which time would start to run) and, as has already been said, was hoping that the internal appeal would be dealt with first and resolve matters in his favour, and therefore only commenced Industrial Tribunal proceedings when frustrated by the employer's delay. The Tribunal does not consider that these reasons make it just and equitable to consider this complaint. There was no evidence before the Tribunal to suggest that the Applicant was not aware of his rights generally, and in the opinion of the Tribunal, therefore, he ought to have been put on enquiry as to the time limit and the date from which time would start to run, and should have sought advice from someone with the requisite knowledge on how to enforce his rights.

8. For essentially the same reasons, the Tribunal considers that in all the circumstances of the case it would not be just and equitable to consider the complaint that Mr M. Owens had racially discriminated against the Applicant, especially having regard to the much greater extent of the delay since the date of the act of which complaint was made."

During the course of the hearing the Applicant was, correctly in our view, asked to say why it was that he had not filed his Originating Application any earlier than he did and in sub-paragraph (e) of paragraph 3, the Industrial Tribunal said this:

"As to why the Originating Application was not filed any earlier than it was, the Tribunal accepted the Applicant's evidence that he was hoping that the internal appeal would be dealt with first, and resolve the matter in his favour, but that he eventually became frustrated by the delay."

It seems to us that there is merit in the argument, on behalf of the Appellant, that the Industrial Tribunal effectively have not considered the case which was being advanced on the Applicant's behalf. In paragraph 7 of their decision, when they say that "There was no evidence before the Tribunal to suggest that the Applicant was not aware of his rights generally, and therefore, he ought to have been put on enquiry as to the time limit and date from which time would start to run", they were dealing with a case which was not essentially the case which was being advanced for an extension of time under the "just and equitable" provision. What they were required to consider was the Applicant's case that the reason why he did not present his complaint earlier was because he had exercised his right to take the grievance a stage further.

There were two aspects to the grievance, as we see it, first in relation to the refusal by the Council to give him a top-up loan to which he believed he was entitled. But that was the trigger to a more serious complaint which was raised in the grievance procedure, namely his treatment by Mr Owens, and whether that treatment itself was rooted in race discrimination. It was that matter which he was going to take, and wished to take further, and he had lodged the equivalent of a Notice of Appeal.

Looking at the facts, it is abundantly clear from the papers before us, that indeed Hackney had been guilty of substantial delay in the way in which they dealt with that appeal. He notified them of the appeal as at about 1 May and it took some considerable time before any full response, of any kind, was delivered to him and the Officer concerned wrote on 7 July saying that she "was now able to respond fully to your memorandum appealing the decision of Miss Barbara Booth, who was the chair of the panel, which heard your grievance against Mr Mick Owens".

It seems to us that that is entirely compatible with the reason given by the Applicant, as to why he had delayed, and if the Tribunal had asked themselves whether, in those circumstances the Applicant had acted reasonably, it seems to us that every Tribunal would have concluded that he was well entitled to take the view that it would be sensible to seek to redress his grievance through the internal grievance procedure before embarking on legal proceedings. That was the position he had made plain to Hackney in the internal documents and it seems to us that every Industrial Tribunal, unless there was some particular feature about the case, or some particular piece of prejudice which the employers could show, would inevitably take the view that that was a responsible and proper attitude for someone to take, albeit that he had an extant complaint of race discrimination. He was looking to have his grievance resolved rather than to go to law.

But it seems to us that the Industrial Tribunal have signally failed to deal with the true nature of the reason why he did not present his complaint earlier, when dealing with the just and equitable provision. Furthermore, it does seem to us that there is nothing in the papers to indicate that the employers would have been prejudiced in any way by an extension of time in this case and accordingly, we are of the view that they may have taken their eye off the ball when deciding how to apply the wide discretion which they are accorded.

Mr Soor, quite rightly, points out that the Tribunal proclaim that they have taken into account all the relevant circumstances, but we think it significant that the Industrial Tribunal was able to deal with the grievance procedure and the internal delays involved in that, when considering the complaint under section 146 of the 1992 Act, but failed to address that issue expressly when dealing with the just and equitable provision at paragraphs 7 and 8 of their decision.

Accordingly, we have been persuaded that there is an error of law in this case, and that the right course for us to take is to allow the appeal and to make a finding that it is just and equitable that his application should be heard and determined.

There is a further complaint by the Applicant against the London Borough of Hackney, which has been filed subsequently and arises out of his dismissal by the Authority. It would obviously be sensible, we think, for the two matters to be listed together because there is cross-reference, in part, to the earlier proceedings with which we have been dealing in the unlawful dismissal proceedings which have been commenced against Hackney.

For these reasons the appeal will be allowed. We suggest that there is a further Directions Hearing before the Industrial Tribunal to decide how best they can proceed to deal with both matters.