United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS J EADY (OF COUNSEL) APPEARING UNDER THE EMPLOYMENT LAW ADVICE SCHEME (ELAAS)


 


JUDGE PETER CLARK: This is an Appeal by the Applicant, Mr Getten, against a Reserved Decision of an Employment Tribunal sitting at Nottingham on 9^th November 1998 dismissing his complaints of unlawful racial discrimination and disability discrimination brought against his former Employer, Notts County Council ("the Council") on the grounds that they were time barred. That decision was promulgated with extended reasons on 18^th November 1998.

History

1. The Appellant is black and registered blind. He commenced employment with the Council on 14^th July 1997 as a Rehabilitation Officer in the Social Services Department attached to the Visual Impairment team. His appointment, in accordance with the Council's policy, was subject to a 6 month probationary period expiring on 14^th January 1998.
2. On 9^th January 1998 the Council wrote to him informing him that his probationary period would be extended by 1 month due to concerns about his attitude to the employment and criticisms made of him by his Supervisors and his following a Diploma of Social Work course whilst in employment. The Appellant responded to that letter by a 12 page letter dated 13^th January 1998.
3. On 25^th February, the Council wrote informing him that he would not be transferred to the permanent establishment and giving him 4 weeks' notice of termination of employment to take effect on 29^th March 1998. It is common ground that his employment terminated on that date.
4. Prior to termination the Appellant wrote a 26 page letter rejecting the criticisms made of him dated 12^th March. He received a substantive reply to that letter on 1^st May. He presented his complaint to the Tribunal on 27^th July 1998.

The Tribunal Decision

5. The Tribunal found that the date of the act complained of for the purposes of both the Disability Discrimination Act and the Race Relations Act complaints was the date of termination of the employment, 29^th March 1998. They rejected the Appellant's case that time ran from 1^st May on the grounds (a) that insofar as the Appellant's letter of 12^th March purported to be an appeal against his dismissal by notice dated 25^th February, he had no right of appeal under the Council's contractual disciplinary procedure; and (b) that even if he did, the Tribunal was bound by the Court of Appeal Decision in Adekeye –v- The Post Office (No 2) [1997] IRLR 105, that following termination of the employment he was neither an employee nor a person seeking employment with the Council and therefore, could not complain of discrimination occurring post-dismissal. It followed that the complaint was presented outside the primary 3 month limitation period.
6. The Tribunal then went on to consider whether it would be just and equitable to extend time. They decided that it would not. They found that the Appellant was an intelligent, well-organised man. His ability to commence proceedings had not been impaired by his disability. He had not, on the material before them, been misled by his advisers nor misunderstood the law.
7. In these circumstances the Application was dismissed. A subsequent review application by the Appellant was also dismissed, although we have not seen a copy of the review decision.

The Appeal

8. The original grounds of appeal prepared by Mr Getten who, until today, acted in person, ran to some 23 pages and further, in support of the Appeal, he prepared a bundle of documents numbering in all 239 and produced a detailed skeleton argument. Before us today, he has been represented by Ms Eady under the ELAAS pro bono scheme. We are particularly grateful to her. She has distilled the real points in this case into amended grounds of appeal, for which she seeks our leave in substitution for the original grounds of appeal. We shall grant that leave.
9. The way in which the case is put in the amended grounds of appeal, we think, speaks for itself and having heard the argument developed by Ms Eady, we are satisfied that all amended grounds of appeal ought to proceed to a full appeal hearing. Accordingly, we shall strike out the original grounds of appeal and permit the matter to proceed solely on the basis of the amended grounds of appeal. The Chairman's comments have already been obtained in relating to the original notice of appeal and an affidavit sworn by Mr Getten in these appeal proceedings. However, we think it right that a copy of the amended grounds of appeal should be sent to the Chairman, Mr McMillan in case he wishes to provide further comments for the benefit of the parties and the division of this Tribunal which hears the full appeal.
10. We shall list the case for ½ day, category B. There will be exchange of skeleton arguments, limited to the amended grounds of appeal, between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged at the same time with this Tribunal. We already have the Chairman's notes of evidence taken at the Tribunal hearing and accordingly, there are no further directions in this case.