United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MORTON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE LINDSAY: We have before us by way of a preliminary hearing the appeal of Mr C.P. England in the case England against Dartford & Gravesham MIND. Mr England was unrepresented below - before the Industrial Tribunal, Mr A. Bano, sitting alone, on 9 April 1998 - but today he has had the benefit of argument in his favour from Mr Morton from ELAAS and we are grateful for the assistance Mr Morton has given us.

The question before the Industrial Tribunal was this, looking at paragraph 1 of the Extended Reasons:

"1. This application comes before the Tribunal for consideration of two preliminary issues, namely:

(a) whether, having regard to the time limit contained in section 76(1) of the Sex Discrimination Act 1975, a Tribunal has jurisdiction to consider the Applicant's complaint of sex discrimination; ...."

And then (b) is much the same in relation to the race relations and racial discrimination. The decision of the Tribunal (Mr Bano alone, as I have mentioned) was promulgated on 15 April 1998 and it was that "The decision of the Tribunal is that it does not have power to consider this application further".

The background is this. On 12 January 1998, according to the Industrial Tribunal's date-stamp, an IT1 form was received from Mr England alleging both race discrimination and sex discrimination. January 12 1998 was a Monday. The Industrial Tribunal concluded on the evidence that, it had in fact been delivered on the Sunday, 11 January 1998, and there is no appeal against that finding.

The event of which Mr England complained was that he had not been selected for a job interview. That was a decision made by the Respondent, Dartford & Gravesham MIND, or at any rate committed to paper by them, on 8 October 1997 in the form of a letter, which they then sent to Mr England.

The last day for lodging a complaint for race discrimination or sex discrimination is three months from "when the act complained of was done". That is quite plain from section 68(1) of the Race Relations Act and section 76(1) of the Sex Discrimination Act. It has to be noted that Parliament has not chosen that time runs from when a complainant learns of the act of which he or she complained, but from when it was done. Plainly on the circumstances of this case that date was not later than 8 October 1997 and time therefore expired on the close of 7 January 1998 and on that basis Mr England was, inevitably, too late.

The Industrial Tribunal considered the discretion to extend time conferred on it by section 68(6) of the Race Relations Act and section 76(5) of the Sex Discrimination Act. What the Industrial Tribunal said (and I am looking at the second half of paragraph 10):

"10. Accordingly, I proceed to consider whether it is just and equitable to allow this application to proceed, notwithstanding that it has been presented after the expiry of the relevant time limits imposed by the Sex Discrimination Act 1975 and the Race Relations Act 1976."

And the Industrial Tribunal declined to exercise that discretion in Mr England's favour. What was said on the point was this:

"11. The Applicant made two principal submissions in relation to the matter. First, the Applicant contended that his cause of action only crystallised when he received from the Respondents the application forms of the short-listed candidates. I was told that in other proceedings brought by the Applicant against the same Respondents the view has been taken that that is the relevant time and the Applicant submitted that the three month period for bringing an application should be taken to run from that date. Secondly, the Applicant contends that he was ill and that it is therefore just and equitable to extend the time in his case. In support of that submission, the Applicant has produced a medical certificate certifying that he was under the care of a doctor from December to January."

And the conclusion was this:

"12. I reject both of those submissions. I take the view that the Applicant was in a position to bring these proceedings against the Respondents from the time that he was notified of the decision not to short-list him. In any event, the application forms of the short-listed candidates arrived well within the three month period, so that there was nothing to prevent the Applicant from commencing these proceedings within the prescribed time if he wished to do so."

Mr England's original Notice of Appeal raises the point (I am looking at ground 6 of his original Notice of Appeal):

"6. The grounds upon which this appeal is brought are that the industrial tribunal erred in law in that it did not take proper account of the date on which the case crystallised."

His original skeleton argues the same point, but with Mr Morton's assistance the case has been enlarged (so to speak) and we have now had reference to Clarke v Hampshire Electro-Plating Co Ltd [1991] IRLR 490 and Mills and Crown Prosecution Service v Marshall [1998] IRLR 494. It is accepted that neither of those authorities was, as such, put in front of the Industrial Tribunal.

Time runs from when the act complains of was done and not from when the complainant first knows facts constituting a good cause of action. Parliament has chosen the starting point that we have mentioned but, of course, there is a discretion given by the Act to extend time. That discretion is confined by Parliament to the Industrial Tribunal. We can only deal with points of law. It is irrelevant whether or not we would have come to the same conclusion had we had the argument that Mr Morton has put in front of us today. What we have to ask ourselves is whether, on the facts as found by the Industrial Tribunal and on the submissions put in front of it, its exercise of the discretion was so flawed that it represents an error of law. We do not feel able to go that far. We cannot detect an error of law in the decision of the Industrial Tribunal, firstly in that time did indeed begin to run when the act complained of was done and secondly, that in point of discretion, on the facts as found, it was proper to decline to extend time. Thus, finding no error of law in the holding of the Industrial Tribunal, we must dismiss this appeal even at the preliminary stage.