United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR E M HARDAKER (Representative) Citizens Advice Bureau 5A Browns Lane Thorn Doncaster DN8 5AF


 


JUDGE BUTTER QC: This is listed as a preliminary hearing of an appeal by Mr Sharif against a decision of the Industrial Tribunal at Sheffield on 13 November 1997. The Chairman, sitting alone, decided that the application before him had been brought out of time and that it was not just and equitable that the case should proceed.

Mr Sharif was represented then, as he has been today by Mr Hardaker, who clearly feels very strongly about the decision and has maintained a forceful argument before this Tribunal.

The essential facts as found by the Chairman were that the Applicant, Mr Sharif, was a member of the General Council of Doncaster Racial Equality Council and in 1992 saw an advertisement for a job as an employee of the same council. He applied and was interviewed but was not successful. The successful applicant was Miss Jetha. The Applicant himself is Muslim of Pakistani origin. The successful applicant was an Indian lady who is a Hindu.

At the relevant time the Respondent's Council Director was a Miss Verma who is also Indian. Mr Sharif was suspicious about the circumstances of the interview, but did not pursue the matter at that time.

It was in June 1997 that the Applicant learnt from Mr Gug that he was aware, or said he was aware that Miss Jetha, the successful Applicant for the post as far back as 1992, had been handed a copy of the interview questions prior to the interview by Miss Verma, in what is suggested to be a clear attempt to influence the selection procedure. It was in those circumstances that Mr Sharif in 1997 took advice and, as a result, issued proceedings before the Industrial Tribunal on 21 July 1997.

The Chairman, in dealing with the application, drew attention to Section 54 of the Race Relations Act 1976. He pointed out that the complained of act in this case took place some time during the course of 1992, and it was common ground that it must therefore be the case that any application made in 1997 was at least 4½ years out of time. The issue for him, he said, was the question posed by section 68 of the Act, namely,"If the application is out of time, is it in all the circumstances nevertheless just and equitable that it should be allowed to proceed?"

The Chairman dealt specifically with the well known case of Hutchison v Westwood Television Ltd [1977] IRLR 69 and it will be recalled that in that case it was made plain that the Tribunal has a very wide discretion and it is not easy to show that that discretion has been improperly or erroneously exercised.

In dealing with the facts the Chairman said that the lapse of time between the discovery of the alleged new fact and the actual application had to be considered, but decided in the circumstances that the 6 weeks gap was a fair one. He went on, however, to express doubt as to whether Mr Sharif's application to a Tribunal was as a result of Mr Sharif's sense of injustice or was simply another part of Mr Gug's unquestioned campaign, as he put it, within Doncaster against Miss Verma. He, the Chairman, said he did not doubt Mr Sharif's good faith. He ended the relevant paragraph, paragraph 6 by saying, "there is considerable doubt in my mind about the circumstances in which Mr Sharif had brought to his attention the possibility of a claim".

Before this Tribunal Mr Hardaker submits that that is a matter of pure speculation and that the motives of Mr Gug are irrelevant. It is important however, to note paragraph 7 of the decision, where the Chairman says:

"For me, however, the clinching matter in this case was the length of time between the date of the alleged act and the date of the application."

The Chairman said that it is a very long time in which to revive a claim of this nature, memories fade and in the end he said, for all the reasons that he had indicated:

"I think that it would be inappropriate to allow this case to proceed and it would not be just and equitable in all the circumstances for this case to reach a full hearing."

Before us today Mr Hardaker says that in the circumstances of this case memories would not be impaired. He says that the Tribunal should have focused upon the question that it was not the Applicant's fault that the delay occurred and he went on to argue that the Tribunal he felt was frightened by the time delay and was looking for an excuse to reach the decision which it did.

We are unable to accept those arguments. We have no doubt that the decision that the Chairman reached was well within his discretion. We are quite unable to say there is a reasonably arguable case that he has erred as a matter of law or could not reasonably have reached the decision that he did.

In these circumstances and for these reasons it is our unanimous view that the appeal fails and must be dismissed.