United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS P GRANT (Principal Legal Officer) Commission for Racial Equality Elliot House 10/12 Allington Street London SW1E 5EH


 


MR JUSTICE BELL: This is a preliminary ex parte hearing in respect of an applicant employee's appeal against the decision of an Industrial Tribunal sitting at London (North).

Mrs Hanson was employed by the respondent, the London Borough of Hillingdon, as a residential worker in an elderly people's home from 20th August 1988 to 13th October 1995, when she resigned to take up new employment. On 13th December 1995, she presented an Originating Application making complaints of race discrimination based on three matters. Firstly she alleged that in 1993 to 1994 her working hours were changed to her detriment; secondly she alleged that in February and March 1995 another candidate was preferred for an acting up post as the senior residential worker. Both those matters occurred well in excess of three months before Mrs Hanson presented her Originating Application. Thirdly, however, in September 1995 Mrs Hanson applied for a post outside the Authority. In replying to a request from the prospective employer for a reference, the Authority disclosed confidential medical information about Mrs Hanson which she claimed was done in a deliberate attempt to prevent her getting the new job. Mrs Hanson claimed that the Authority's conduct on all three occasions was discriminatory on the grounds of her race. She asked for the Industrial Tribunal:

"To regard all three acts as a continuing act of race discrimination, culminating in the episode in respect of the reference."

The Industrial Tribunal heard Mrs Hanson's complaints and the Authority's answers to them on 13th March and 13th May 1997. Although there was a challenge to the Industrial Tribunal's jurisdiction, it relation to the first two matters, the Industrial Tribunal sensibly decided to hear that issue with a hearing on the merits of all three incidents. Its decision was entered in the Register on 8th August 1997.

The Tribunal found that in respect of the first allegation, the change of hours, management was making proper decisions on the best use of the staff hours available, and that there was no race discrimination. In respect of the second matter, the Industrial Tribunal found that there was no satisfactory explanation from the respondents as to why they preferred the other applicant to Mrs Hanson to act up in March 1995. It went on to find that Mrs Hanson was discriminated against because of her race in that respect. In respect of the third matter, the only one of the three matters falling within three months of the presentation of Mrs Hanson's Originating Application, the Industrial Tribunal found that disclosure of the confidential medical information was an act of incompetence, but not an act of race discrimination against Mrs Hanson. It was not in the Authority's interests to seek in any way to prevent Mrs Hanson moving to work elsewhere.

The Industrial Tribunal went on to conclude at paragraph 8 of its extended reasons:

"That finding in respect of the third incident has the effect of making Mrs Hanson's application out of time. We have therefore considered whether it would be just and equitable to allow her to bring her application after the expiry of the three month time limit. We have taken into account the fact that Mrs Hanson was unwell from 4 March onwards, but we are not convinced that she was so incapacitated either mentally or physically so as to be unable to lodge a complaint about her treatment at interview, had she so wished. The Tribunal therefore has no jurisdiction to hear her complaints in respect of the first two allegations, although it has made findings on the evidence which it agreed to hear."

The Industrial Tribunal's unanimous decision, in those circumstances, was:

"That the Applicant was not discriminated against by reason of her race in respect of the last act complained of, and that her other complaints are therefore out of time."

The grounds of appeal make a number of points. The first is that the Industrial Tribunal found one matter well-founded, but failed to make such orders or recommendation as it considered just and equitable as required by s.56(1) of the Race Relations Act 1976.

But the Industrial Tribunal did not found any complaint "well-founded" in our view. It agreed to hear evidence on all three matters and to decide the question of jurisdiction, that is in or out of time, at the end. The one allegation which had factual merit, the second one, was out of time, and the Industrial Tribunal exercised its discretion against extending time, so it must follow that that allegation was not well-founded for the purposes of s.56(1).

Next, the grounds of appeal complain that the Industrial Tribunal did not make an express finding that the three matters complained of were not a continuing act. The point being that any discriminatory rule, practice or policy of the Authority, illustrated by the out of time incident, could amount to a discriminatory act continuing into the three months before the presentation of the Originating Application and, therefore, be in time.

But that is, in our view, a quite hopeless contention in the circumstances of this case where Mrs Hanson was left with one discriminatory incident which was out of time, and where the other two acts, including the last one which was in time, which were said to have been features of a continuing act, were found to be non-discriminatory. Since the complaint in respect of the last matter was rejected on the merits, there was nothing to carry the sole act of discrimination, the second matter, into the three months before presentation of the Originating Application as part of a continuing act of discrimination. It stood on its own.

Finally the grounds of appeal contend that the Industrial Tribunal did not give proper consideration to the question of whether it was just and equitable to consider Mrs Hanson's complaint concerning the second matter, although it was out of time, pursuant to the provisions of s.68(6) of the Race Relations Act. It is argued that the tribunal considered only whether it was reasonably practicable of Mrs Hanson to have presented her complaint in time, which is of course the much narrower test for complaints of unfair dismissal as set out in s.111 of the Employment Rights Act 1996.

We do not consider that that final ground is reasonably arguable. The Industrial Tribunal did ask itself whether it would be just and equitable to allow Mrs Hanson to bring her application after the expiry of the three month time limit. It must have had in mind the factual merit of the second complaint, because it had just found it to be soundly based. It was obviously moved by the factor that there was no good reason why Mrs Hanson could not have brought her complaint earlier, had she wished, and in our view, it was entitled to attach weight to that factor. In our judgment, it was not incumbent on the tribunal to rehearse all the factors which might affect the exercise of its discretion one way or another. There was nothing in our view about the nature of the second allegation which demanded that the Industrial Tribunal should exercise its discretion in Mrs Hanson's favour under s.68(6). Put at its lowest, we do not feel that there are sound grounds for arguing that in deciding whether to exercise its discretion under s.68(6) the tribunal reached a decision and a view which no reasonable tribunal could reach.

The grounds of appeal state that Mrs Hanson followed the Authority's grievance procedure in respect of the March 1995 matter, that is the second of the three matters, and that her complaint was still unresolved when she left in October 1995. But if Mrs Hanson chose to do that to the exclusion or at least postponement of an Originating Application to the Industrial Tribunal, she cannot justifiably complain in our view. If she had complained of continuing discrimination by unwarranted failure to deal promptly with her grievance about the March 1995 matter, that might have been another consideration. But there is no indication that that was part of her case before the tribunal.

We are grateful to Ms Grant for her submissions. We have gone into our reasons at some length out of respect for Ms Grant's attendance here today to elaborate on the grounds of appeal. But in all those circumstances, we do not consider that Mrs Hanson's appeal is arguable and it follows that it must be dismissed at this stage.