United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS EMMA SMITH (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE LINDSAY: We have before us by way of a preliminary hearing the application of Ms J.F. Daniel in the matter Daniel against The Homerton Hospital Trust. Ms Daniel has been represented today by Miss Smith, on behalf of ELAAS, and we thank her for the assistance she has given to us.

The decision appealed against is that of Mr J.N. Leonard, Chairman sitting alone, on 20 February 1998, promulgated on 4 March 1998 and the decision was that the Tribunal did not have jurisdiction to consider the complaint of the Applicant which was presented out of time.

Briefly to give the background, on 7 November 1997 Ms Daniel lodged her IT1. She failed, in fact, to complete box 1, which is the box that requires one to state the nature of the complaint, but she did claim that there had been gross discrimination, in other words, in her case, racial discrimination. Ms Daniel is a black lady and the form of discrimination claimed was that she had been down-graded from a Grade G Midwife to a Grade F Midwife.

On 15 December 1997 the employer asked for a preliminary hearing. There had been earlier disciplinary processes and the Chairman of the employer's appeals panel had advised Ms Daniel in writing of her down-grading on 8 August 1996, after an appeal had confirmed the results of an earlier hearing, so that the last in time of the matters complained of as possibly involving racial discrimination would seem to have been 8 August 1996. In her IT1 she had, to some extent, anticipated a time-bar complaint. She said on our page 9:

"I am only now applying because the situation was too stressful for me to handle at the time, and within 3 months after the hearing I needed to have an emergency major operation and was off work for 3 months, and was too stressful to deal with the matter. I now feel I'm ready to deal with the matter."

It may be noted that there is no mention of her not knowing of the time bar.

On 20 February 1998 the Chairman alone came to the conclusion which we have mentioned. It seemed there had been a careful investigation. Matters are set out in paragraphs 6, 7 and 8 of the Chairman's decision. The Chairman held that the last matter complained of was dated 7 August 1996 - that is paragraph 4. The Chairman accurately summarised section 68 (1) of the Race Relations Act 1976 and the discretion to extend time conferred by section 68 (6).

The Chairman then came to the meat of his decision in paragraphs 6, 7, 8 and 9, and eventually concluded that the Tribunal did not consider that it could be just and equitable to extend time and accordingly he held that the Tribunal did not have jurisdiction to consider the complaint.

We have found no reference in the Extended Reasons or in the papers put before the Industrial Tribunal to any averment by Ms Daniel, who appeared in person then on 20 February 1998, to a claim that she had not known of the existence of the time limit. However, Miss Smith today tells us, and she has been careful to take instructions on the point from Ms Daniel who is present in court, that Ms Daniel did, in fact, on 20 February and on oath, aver that she had not known, at any relevant time, of the time limit provided by section 68 (1), the three month limit.

If that had, indeed, been said on oath, then it seems to us that given the breadth of the just and equitable test that is required to be examined by reason of section 68 (6), that it should have been mentioned, either to say that it was believed or disbelieved or whatever the Tribunal's reaction to the evidence was.

We are in a real difficulty because there is no clue in anything before us that the point was ever taken and yet it does seem to us that it is a point which should have been mentioned by the Chairman if, indeed, the evidence had been given.

That being so, it does not seem appropriate to us to send the matter directly to a full hearing. Rather, what we do is adjourn the preliminary hearing generally, with a direction that in the meantime a request shall be put to the Chairman for his notes of evidence on the point, namely, whether or not there was any averment by Ms Daniel, on oath, at the hearing of 20 February to suggest that during the three month period, either all of it or some of it, she had not known of the three month time bar. Quite what the EAT's reaction will be on a restored preliminary hearing is, of course, a matter for those who hear the restored hearing.

All we do at this stage is indicate that we adjourn the matter generally, with a view to obtaining the views or notes of the Chairman as we have indicated, and with a view to the preliminary hearing being restored once those sources of information are available. That, I think, is all we can do at this stage.