United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS S GAREL (Solicitor) Avon & Bristol Law Centre 2 Moon Street Stokes Croft Bristol BS2 8QE


 


JUDGE PETER CLARK: This is an appeal by Mrs Harrold against a decision of a Chairman, Mr A C Tickle, sitting alone at the Bristol Employment Tribunal on 28th April 1998, dismissing her complaint of direct racial discrimination and victimisation contained in an Originating Application presented on 6th February 1998 against her former employer, Wiltshire Health Care NHS Trust on the ground that it was time-barred. A further complaint of unfair dismissal was within time and is due to proceed to a hearing before the Employment Tribunal.

In her Originating Application she complained that on 16th November 1997 she was forced to leave her employment of 17 years due to being subjected to a series of acts of racial discrimination by the respondent and its managers since 1993.

It is right to say, as the Chairman pointed out in his extended reasons, that in 1995 she presented a complaint of unlawful racial discrimination which was compromised between the parties and then presented a further complaint which was heard by an Employment Tribunal sitting at Bristol over three days in October 1997 and dismissed by that tribunal. An appeal against that decision was in turn dismissed by this Appeal Tribunal over which I presided at a preliminary hearing held on 6th April 1998 (EAT/236/98).

In the present complaint she raises further alleged acts of discrimination; in particular that a white colleague, Jill Homersley, had been promoted ahead of her. She learned of that appointment in October 1997, before tendering her resignation on 20th October to take effect on about 17th November 1997.

The basis of the Chairman's finding was that time for this complaint of racial discrimination began to run when the appellant learned of Mrs Homersley's appointment in October, and was accordingly presented outside the ordinary three month time limit. The Chairman went on to find that it was not just and equitable to extend time.

The principal point taken in this appeal is that the Chairman fell into error by taking the relevant date as the date of knowledge of Mrs Homersley's promotion instead of the effective date of termination of the contract, that is 16th or 17th November 1997, it matters not which for present purposes.

We can see that the point raises an interesting argument as to whether a complaint of constructive dismissal, that is the employee resigning in response to a repudiatory breach of the contract by the employer, will result in the effective date of termination of the contract being the relevant date for the start of limitation running, where the repudiatory act alleged consists of less favourable treatment on racial grounds. That appears to be the nature of the appellant's complaint, and it seems to us in the absence of any authority of which we are aware, that the point requires argument at a full appeal hearing.

The other point which we have not overlooked is the question of issue estoppel. Certain of the matters complained of by the appellant as constituting acts of racial discrimination since 1993 have been considered and adjudicated on by the last Industrial Tribunal sitting in October 1997. It would seem that the principle of issue estoppel will arise in relation to those matters, although as the Chairman pointed out in his reasons, there are certain new and different allegations contained in the present complaint.

The final matter that concerns us is this. This limitation point was taken as a preliminary issue before a Chairman sitting alone. It does seem to us that the factual issues arising in relation to the limitation question will also arise at the full Employment Tribunal hearing of the constructive unfair dismissal complaint. It is arguable that the appropriate procedural course in this case would have been for the Employment Tribunal to have heard the race discrimination limitation point at the same time that was it was hearing the unfair dismissal complaint, on the basis that very little additional time would be involved. We have in mind the judgment given on behalf of this tribunal by the President, Morison J, in Sutcliffe v Big C's Marine [1998] IRLR 428, at paragraphs 18-20.

These then are the matters which will be considered at the full appeal hearing. The case will be listed for half a day. Category C. There will be exchange of skeleton arguments not less than 14 days before the date fixed for the full appeal hearing. No other directions are necessary.