United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS SACHER (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us as a preliminary hearing the appeal of Mrs S. Rai in the matter of Rai against Hertfordshire County Council. There was a hearing before the Tribunal at London (North) under the chairmanship of Mr G.W. Rice on 2 July 1998 and it was sent to the parties on 14 July 1998. Then there was a Notice of Appeal dated 16 July.

1. The Tribunal had before it only a relatively limited question, one of jurisdiction, and their decision was this:

"The unanimous decision of the Tribunal is that it does not have jurisdiction to deal with this case as

(a) the application was made out of time and

(b) it is not just and equitable to extend the time to permit the Applicant to proceed."

2. To understand the case one has to go back a little in time. On 26 January 1998 Mrs Rai presented an IT1 complaining of three things: Unfair selection for redundancy, unfair dismissal and racial discrimination. Her employment had ended on 18 or 19 October 1997.
3. So far as concerns racial discrimination her complaint was:

"1. RACIAL DISCRIMINATION

I was subjected to racial harassment by another Education Welfare Officer from 1990 to 1997. An official complaint was made to my supervisor and to the county's project manager regarding this matter. Finally, this matter was reported to my Union. As a result of this complaint I was targeted for dismissal.

That was given under the heading "Please give details of your complaint".

4. On 23 February 1998 Hertfordshire County Council, by its IT3, took the point that the complaints were out of time, were barred by time and, so far as concerned the racial discrimination case, were barred therefore by section 68(1) of the Race Relations Act. A preliminary hearing was arranged before a Chairman sitting alone, Mr Simpson. On 31 March 1998 that hearing took place and on 2 April 1998 the decision was sent to the parties and what it said, was this (looking at page 30 of our papers):

"1. The application for unfair dismissal is dismissed.

2. The time for presenting the claim for race discrimination is extended to 26th January 1998.

3. Mrs Rai shall serve on Hertfordshire County Council by 14th April 1998 full particulars of all facts and matters to be relied upon in relation to her claim for race discrimination.

4. Hertfordshire County Council shall serve on Mrs Rai by 28th April 1998 an amended IT3 setting out its response in detail.

5 Witness statements of all witnesses who are to be called to give oral evidence shall be exchanged by not later than 31st May 1998.

6. The time estimate for the final hearing of this case is assessed at 1 to 2 days.

7. Both parties shall notify the Tribunal by 28th April 1998 all unavailable dates for their witnesses for the months of June, July and August."

5. That reference in number 2 there, that the claim for presenting the claim for race discrimination was extended to 26 January 1998, represents, in effect, something of a confusion because section 68(6) makes no provision for extending time. Section 68(1) says:

"(1) An industrial tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done.

And section 68(6) says:

"(6) A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

6. It is not a case where one has to extend time. However, in his Extended Reasons for the decision that Mr Simpson made, he said (with our emphasis):-

"Turning to the claim for race discrimination, I applied the wider 'just and equitable' test."

Then, a little later, he said:

"Save for being able to plead the technical defence that the claim is out of time no other reason has been presented to me to show that Hertfordshire County Council have suffered or will suffer any prejudice. There is no suggestion that witnesses will not be available, or that Hertfordshire County Council has lost the opportunity to gather or preserve evidence by reason of the delay. Therefore taking all the circumstances into account and balancing the positions of both parties I conclude it would be just and equitable to extend the time period for presenting this application to the 26th January 1998 and extend the time period accordingly [this is the important part] thereby validating the application."

7. We do not have in front of us the Order that was drawn up to give effect to that decision but the words "thereby validating the application" arguably show that Mr Simpson considered and intended that there should have been, there and then, a validation of the racial discrimination claim as it then stood although, of course, it required to be more fully particularised because that was what he had required. He therefore arguably validated all claims so long as adequate particulars were later served of them, so long as the claims fell within the description of the complaint which Mrs Rai had, by that time made, namely that the complaint had to be (i) racial harassment (ii) by another Education Officer (iii) between 1 January 1990 and 31 December 1997 and of which (iv) complaint had already been made before 26 March 1998 to Mrs Rai's superior. Those are the limitations which she had herself put on the nature of the complaint which at that stage was being ruled on.
8. On 27 April 1998 Mrs Rai supplied particulars and Hertfordshire amended its IT3 and witness statements were exchanged very late. A two-day hearing was then fixed. Then, Hertfordshire, on 25 June 1998, applied to the Tribunal to strike out Mrs Rai's surviving racial discrimination case for want of adequate particulars. Alternatively they asked that the two-day hearing should be adjourned in order that those particulars might be served. On 2 July 1998 the Tribunal thus was faced with a position in which two days had been given over for a hearing and applications for adjournment and so on were sought and what they said was this:

"7 We were concerned at the overall position and we thought that it was right to do what we could to bring this matter to a conclusion if it were possible during the two days that have been allocated for the case to be heard. We sought to investigate the matter in some degree to find out what the nature of the Applicant's case was and whether we did in fact have jurisdiction to deal with the case bearing in mind that her employment had ended on either 18 or 19 October 1997, which was the date when she had applied for retirement in conjunction with and consequent upon her redundancy. The application to the Tribunal was received on 26 January and that meant that any racial discrimination giving rise to that complaint, to be in time, had to have occurred after 27 October 1997 by which time the Applicant was no longer in the Respondents' employment. The original Tribunal had looked at whether it could extend the date for filing the IT1 forward from 18 January. The problem which faced us on analysing the case, was whether we could extend the time limit backwards. We had to decide whether it was just and equitable to extend the time limit backwards and so we looked at what had happened."

And they concluded in their paragraph 9:

"9 In reaching a decision as to whether we should extend the time back to enable this claim to be in time, we have made an assumption in her favour, and heard of two trivial matters. We have to look at the interests of both parties and weigh up the issue generally and fairly between them. In doing that we reached the conclusion that it would not be just and equitable on the facts of this case to enlarge the time limits so far back as 21 May 1997, a period of 5 months. The consequence is that the Tribunal does not have jurisdiction to hear the Applicant's claim of discrimination on the ground of her race. The matter comes to a conclusion at this point."

9. No consideration appears to have been given (and we say "appears to have been given" as it may later transpire to be otherwise) to the fact that Mr Simpson had "validated the application" on 31 March 1998 and no consideration appears to have been given to whether any particularised claims fell within the broad description of the claims which Mr Simpson can be taken to have validated in March 1998. No consideration appears to have been given, either, to whether any Employment Tribunal had any further power later to rule a complaint to be time-barred where an earlier Tribunal had ordered it to be (so to speak) time-valid.
10. Those are, in our view, arguable points of law that Mrs Rai ought to consider raising and we think they are sufficiently arguable to justify the matter going to a full hearing. We have had the benefit of argument from Ms Sacher, on behalf of ELAAS today, and it is no mere formality to thank her for the attention which she has given to the case, as ELAAS representatives always do. We have indicated that we think, having read the papers, that the point we have identified is the only point proper to go forward. It would be wrong to let Mrs Rai advance the very broad attack on the merits of the case in the grounds of appeal (which, of course, were not drafted by ELAAS) as she attempts to do. The only point that we indicate is to go forward is the point as to the earlier Simpson validation in relation to the later decision of 2 July 1998.
11. We give leave to Mrs Rai to amend the Notice of Motion within 14 days after receiving a transcript of our judgment in this matter with a view to her amending the Notice of Appeal so that it raises, and raises only, the point that we have identified, but we do allow that one point to go forward.