United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS LYTTLE APPELLANT IN PERSON 37A Waltham Road Southall Middx UB2 5AP


 


JUDGE PETER CLARK: We begin with the history of this matter. The Appellant was employed by the Respondent from November 1990 until her dismissal on 1 December 1992. An internal appeal against her dismissal was rejected on 12 January 1993.

On 8 April 1993 she presented an originating application to the Industrial Tribunal complaining of both unfair dismissal and unlawful racial discrimination. We are concerned in this appeal only with the latter complaint.

On 25 August 1993 an Industrial Tribunal sitting at London (North) under the chairmanship of Mrs F Stoll dismissed both complaints. As to the claim of racial discrimination, the Tribunal held that on the Appellant's evidence, she was complaining of a continuous campaign of racial discrimination by her two white managers leading up to her dismissal. Further, the appeals committee compounded that discrimination by rejecting her appeal on 12 January 1993. The Tribunal held that there was no reason why she could not have presented her race complaint within three months of her dismissal. There was no need to wait until the internal appeal had been heard. In these circumstances that Tribunal held that the complaint was out of time and there were no grounds for extending time under the just and equitable provision to be found in s.68(6) of the Race Relations Act 1976. Extended reasons for that decision were dated 22 September 1993.

Against that decision the Appellant appealed to the Employment Appeal Tribunal. Her appeal was heard on 2 November 1994 by a division presided over by Pill J as he then was.

The attention of the Employment Appeal Tribunal was drawn to a decision of this Tribunal, presided over by May J, in Adekeye v The Post Office [1993] ICR 464 [Adekeye (No. 1)) decided shortly after the Industrial Tribunal hearing in this case, in which it was held that a complaint that an internal appeal was conducted in a racially discriminatory way included that appeal as part of the "act complained of" for the purposes of starting time running under s.68(1) of the Act. On that basis Ms Lyttle's appeal was allowed, and the Employment Appeal Tribunal held that the Industrial Tribunal had jurisdiction to hear her substantive race complaint.

Before the case returned to the Industrial Tribunal for a hearing on its merits there were further developments in the Adekeye litigation, culminating in Adekeye (No. 2) in the Court of Appeal, reported at [1997] ICR 110. On that occasion the Court, which included Pill LJ, as he had then become, held that the protection of the Act extended only to such time as the complainant remained an employee. Where there was an effective dismissal a subsequent internal appeal held following the effective date of termination of the employment could not be taken into account when considering "the act complained of". Accordingly, the Industrial Tribunal had no jurisdiction to hear Ms Adekeye's complaint.

The substantive hearing of the present complaint was delayed until after the Court of Appeal judgment in Adekeye (No. 2). It was then restored for hearing and came before a Tribunal chaired by Mr. M S Rabin on 8 September 1997. Directing themselves in accordance with the Court of Appeal decision in Adekeye (No. 2) that Industrial Tribunal held that Ms. Lyttle could not include a complaint of race discrimination in the conduct of the internal appeal as part of "the act complained of" for limitation purposes. They concluded that they had no jurisdiction to entertain her complaint. Extended reasons for that decision are dated 29 September 1997.

Now Ms Lyttle appeals against that second Industrial Tribunal decision. The point which she wishes to take is that although the decision in Adekeye (No. 2) precludes her from bringing a complaint under s.54(1)(a) of the Act, it does not prevent her from bringing a complaint under s.54(1)(b).

Section 54(1) provides:

"A complaint by any person ('the complainant') that another person ('the respondent') -

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part II; or

(b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination against the complainant,

may be presented to an industrial tribunal."

In our judgment the Appellant faces two difficulties with that argument. The first is that she did not take the point below, although it is arguable that since it goes to the industrial tribunal's jurisdiction it may be permissible to take it for the first time now (see House v Emerson Electric Industrial Controls [1980] ICR 795). However, the more substantial point is that in our judgment it does not assist her. Section 54(1)(b) fixes the principal with vicarious liability for his employee or agent under s.32 of the Act and makes that employee or agent jointly liable with his principal for discriminatory acts under and by virtue of s.33. However, that does not get over the problem that the complainant must be in employment at the relevant time, whether the complaint is brought against a principal or his employee or agent, or both.

Ms Lyttle has drawn attention to the provisions of s.33(1) of the Act. However, in our judgment the reference in s.33(1) to "an act made unlawful by this Act" necessarily requires that the act must have been committed at a time when the complainant was in employment. Despite the careful and ingenious argument advanced by Ms Lyttle that the persons sitting on the internal appeal panel who upheld the dismissal were aiding and abetting the unlawful act of dismissal on the facts of this case, that does not entitle her to rely upon the date of the internal appeal hearing at which time she was not employed by the Respondent in starting time running for the purposes of s.68(1).

In these circumstances we have concluded that the Rabin Industrial Tribunal correctly applied the law as it has been understood since Adekeye (No. 2) in finding that the primary limitation period here ran from the effective date of termination and not from the date on which the internal appeal was dismissed. Further, in the light of both the Stoll Industrial Tribunal and the Rabin Industrial Tribunals' findings as to the just and equitable extension of time provision in s.68(6) of the Act, we can see no grounds for interfering with that exercise of discretion and this appeal must be dismissed.

For completeness, we observe that the Appellant has made an application for a review of the Rabin Tribunal decision, relying on the same argument put before us today. That application was dismissed by letter dated 3 November 1997. In the light of our view that the argument is misconceived in law, we can see no grounds for interfering with that review decision.