United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr A Bradshaw (Of Counsel) Instructed by: Mr M Duffy Managing Consultant The Employment Law Advice Centre 22 St Edmunds Road Northampton NN1 5EH


 


JUDGE PETER CLARK:

1. This is an appeal by the employer, Catering & Allied Services (London) Ltd, (the company), against an order made by the London (South) Employment Tribunal, sitting on 17 May 1999, permitting the applicant, Mr Kareem's complaint of racial discrimination to proceed in part to a hearing on its merits notwithstanding that the originating application presented on the 19 February 1999, was out of time. That order was promulgated with extended reasons on the 29 May 1999.
2. By his originating application the Applicant contended that he had been employed by the company from the 30 June 1997 until his dismissal on 4 November 1998. He complained of racial discrimination and unfair dismissal. His particulars of complaint read as follows:

"I was dismissed without a warning/notice, despite the fact I followed the company procedure on absenteeism from work, which had been denied by the company. I was demoted from my previous position to kitchen assistant in October because of my colour and the person who had less experience was promoted to my earlier position because he is a white person. I have enough evidence and proof to show that I was unfairly dismissed and racially discriminated during my employment with the respondent".

3. The Employment Tribunal found:

1) that the effective date of termination was the 4 November 1998.

2) that it was reasonably practicable to present his complaint of unfair dismissal within the three month primary limitation which expired on the 3 February 1999. Accordingly that complaint was dismissed.

3) His complaint of racial discrimination, in that he alleged that he was demoted to kitchen assistant on 7 October 1998 on racial grounds, was also out of time. The Employment Tribunal held that it would not be just and equitable to extend time under Section 68(6) of the Race Relations Act 1976 in respect of that complaint. Accordingly that part of his race discrimination complaint was also dismissed.

4) The Employment Tribunal, having heard evidence from the Appellant at the preliminary hearing, found that he was complaining of racial discrimination arising out of his dismissal on 4 November 1998.

4. Although that complaint was also out of time, the Employment Tribunal held that it would be just and equitable to extend time in relation to that complaint only, for the reasons given in paragraph 14 of their extended reasons. Accordingly that matter was allowed to proceed to a full merits hearing. It is against that last order that this appeal is brought.
5. Mr Bradshaw, on behalf of the company, takes essentially two points; First he submits that the originating application does not plead in terms, a complaint under Section 1(1)(a) and 4(2)(c) of the 1976 Act, that his dismissal was tainted by racial discrimination. He argues that every opportunity was given to the Applicant, and his representative, to clarify the case that was being advanced.
6. A request was made for further and better particulars of the originating application but at no stage was such clarity provided, nor was any application made even at the hearing before the Employment Tribunal, for leave to amend to make that claim clear. We have considered the way in which the originating application is pleaded. It is correct to say that it is not immediately clear that a complaint under section 1(1)(a) and 4(2)(c) of the 1976 Act is there set out. However as a result of the evidence that was heard by the Employment Tribunal it became clear then that such a complaint is being made. The question of particulars is in effect dealt with by the Employment Tribunal's subsequent directions contained in Paragraph 15 of their reasons', for example there should be witness statements prepared for the hearing and a trial bundle of documents prepared. In these circumstances it seems to us that it was open to the Tribunal to treat the originating application as containing a complaint of racial discrimination, arising out of the dismissal on the 4 November 1998, and in these circumstances we see no arguable ground of appeal on this point. Secondly, he seeks to challenge the Employment Tribunal, finding that it was just inequitable to allow the complaint to proceed notwithstanding that it was presented outside the primary limitation period. The grounds for exercising their discretion, in the way that they did, set out at paragraph 14, appear to be that the applicant, following his dismissal on the 4 November 1998, raised a grievance which was then investigated by Ms Shirley Munday, of the Company, and the Employment Tribunal concluded that the Applicant was entitled to wait to see what transpired from this grievance. He then acted reasonably quickly in contacting his solicitor, and thereafter presenting the complaint to the Employment Tribunal.
7. Mr Bradshaw has referred us to a decision of this Employment Tribunal Judge Hague QC presiding in Berry v Revensbourne National Health Service Trust [1993] ICR 871. We have considered that case but in our view it does not assist the company's cause. In particular the Employment Tribunal on that occasion drew attention to the words of Mr Justice Phillips in Hutchinson v Westward Television Ltd [1977] ICR 279,282. There his Lordship referred to the wide discretion conferred on Industrial Tribunals, under Section 68(6) of the Act. In our view there are no grounds in law for interfering with that exercise of discretion on the facts of this case. In these circumstances the second ground of appeal also fails. Accordingly we shall dismiss this appeal at this preliminary hearing stage.