United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Ms M Plimmer Counsel Instructed by Messrs Maidments St John's Court 74 Gartside Street Manchester M3 3EL


 


JUDGE PETER CLARK: The Appellant, Mr Liburd was employed by the Respondent from 3rd February 1997 until his dismissal without notice on 30th January 1998, following a disciplinary hearing held the previous day.

On 29th April 1998, he presented an Originating Application to the Employment Tribunal (the first complaint) alleging unfair dismissal, breach of contract and unauthorised deductions from wages. That complaint made no mention of any alleged unlawful racial discrimination or victimisation on the part of the Respondent. On 14th May 1998 his internal appeal against dismissal was rejected by an independent panel consisting of three members appointed by the Respondent to hear his appeal. In May 1998 he withdrew his complaint of unfair dismissal which was duly dismissed by a Chairman's decision. On 8th June 1998, he faxed the Manchester Employment Tribunal seeking, inter alia, leave to amend his first complaint to add a claim under the Race Relations Act 1976. He is of Afro-Caribbean racial origin. On 16th June 1998, a Chairman refused his Application for Leave to Amend in relation to a complaint under the 1976 Act which was out of time in that it related to his dismissal. On 19th June 1998, a Chairman directed that a claim arising out of the Appeal Hearing was in time but that a further Originating Application ought to be lodged. The Appellant presented his second complaint on 19th June 1998.

In addition to a complaint arising out of the internal appeal hearing, which has since been abandoned, he also contended that an act of unlawful racial discrimination took place at the Disciplinary Hearing leading to his dismissal. On 21st October 1998, a Tribunal sitting at Manchester under the chairmanship of Mr E T Connelly, heard a preliminary issue as to whether the second complaint was out of time, insofar as it related to events surrounding the dismissal in January 1998 and if so, whether it was just and equitable to extend time under Section 68(6) of the 1976 Act.

The Tribunal's reasons for refusing to allow that matter to proceed are set out, essentially at para 21 of their Extended Reasons dated 10th November 1998 ("the Substantive Decision"). An application for a review of that decision was summarily dismissed by the Chairman by a further decision dated 9th December 1998. In this appeal, Ms Plimmer, who now appears on behalf of the Appellant, has reformulated the grounds of appeal into three specific grounds which are developed in her skeleton argument and which she has further advanced in oral submissions before us today. The new grounds of appeal focus on the Tribunal's reasoning and conclusion at para 21 of their Reasons. First, it is submitted, that there was no evidential basis for the Tribunal's finding that the prejudice to the Respondent, in allowing the matter to proceed, was far greater than the prejudice to the Appellant in not allowing him to proceed. It is submitted that there is no evidential basis for that finding nor is the reasoning behind it clear.

Further, in support of that submission, Ms Plimmer draws attention to the Tribunal's finding that the delay in this case has not affected the cogency of the evidence if the matter is to proceed. She submits, applying the Court of Appeal's approach in Hartley -v- Birmingham City District Council [1992] 2 All England Reports 213, 224G-225B, that the principles derived from the application of Section 33 of the Limitation Act apply in this case and in particular, the loss of the Limitation defence to the Respondent is of little importance compared with the prejudice to the Plaintiff in not allowing the matter to proceed.

Secondly, she submits, on the authority of DPP and another -v- Marshall [1998] ICR 519, a decision of this Tribunal presided over by Mr Justice Morison, that the question when considering the just and equitable proviso is whether a fair trial is possible. She submits that question was not asked by this Tribunal: had it been asked plainly the answer would have been yes. Secondly, she submits that the Tribunal has erred in its application of the just and equitable formula under Section 68(6) of the Act and that the factors which the Tribunal has taken into account in concluding that the prejudice is greater to the Respondent than to the Appellant is more consistent with the narrower, reasonable practicability test to be found, for example, in the Unfair Dismissal legislation rather than the broader test under Section 68(6) of the 1976 Act. Thirdly, she relies on the decision of this Tribunal, Judge Hague QC presiding, in Berry -v- Ravensbourne National Health Service Trust [1993] ICR 871, for the proposition that the Tribunal in this case failed to take into account the fact that there were concurrent proceedings, in this case, the breach of contract claim arising from the first complaint which overlap with the out-of-time complaint of racial discrimination. We should say that Ms Plimmer has very fairly told us that that point was not expressly taken below. However, that is a matter for the Respondent to consider and it is of course, open to the Respondent to take that point at the Inter-partes Hearing of this Appeal which, in our judgment, ought to take place, Ms Plimmer having satisfied us that there are arguable grounds of appeal in this case.

For that purpose, we shall direct that the Appellant is to lodge a draft amended Notice of Appeal setting out the grounds to which we have referred within 7 days of today. That amended pleading to be marked for my attention and I will then consider granting leave.

Secondly, the full appeal hearing will be listed for ½ day, Category C. There will be exchange of skeleton arguments 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 this Tribunal at the same time.

Finally, the question of the Chairman's notes of evidence has been raised faintly by Ms Plimmer. As at present advised, we do not consider this is a case in which to give a direction for Chairman's notes.