United Kingdom Employment Appeal Tribunal

APPEARANCE

 

For the Appellants	MR RICHARD HUGHES (Employment Law Consultant) The A P Partnership Malborne House Benyon Grove Orton Malborne Peterborough PE2 5ZL


 
SIR CHRISTOPHER BELLAMY QC
1. This is an appeal from the Decision of the Employment Tribunal sitting at Manchester on 7 July 2000. In that decision the Tribunal decided that the Applicant's complaint pursuant to the provisions of The Race Relations Act 1976 was presented to the Tribunal after the end of a period of three months, beginning when the act complained of was done, but that, in all the circumstances of the case, it was just and equitable that the Tribunal should consider this complaint on its merits.
2. The case comes before us today on an ex-parte preliminary hearing in order for us to determine whether, on this appeal, there is an arguable error of law in the Decision that the Tribunal had come to. It is common ground that the Applicant's complaint was presented after the period of three months, although it is not entirely clear whether the complaint was presented one month late or two months late. The Appellant argues on that specific point that the last act of discrimination, of which the complainant can reasonably complain, took place on 9 September 1999, but it is fair to say that in the IT1 there is at least a suggestion that the Applicant relies also on acts occurring on 6 October 1999. At all events, she was in fact employed until 8 October 1999, or at least the Tribunal so found in paragraph of 2 of its Decision.
3. There was in fact an application for a review of the Tribunal's decision, which the Chairman refused in reasons given on 16 August 2000. In that Decision the Chairman said that whether the complaint was one month, or two months, out of time, mattered not. That is at paragraph 3 of the Review Decision. We will take it, for the purposes of argument today, that the complaint was either one month or two months out of time.
4. The statutory provisions that fall to be applied are set out in Section 68 of The Race Relations Act 1976, which in section 68(1) provides, in effect, that a Tribunal shall not consider a complaint unless it is presented before the end of the period of three months, beginning when the act complained of was done; that is subsection (1)(a). However, section 68(6) provides that a 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.
5. In this case, the Tribunal considered that it was just and equitable to do so, and they recited the facts in paragraph 3 of their Decision. According to that paragraph, in the course of preparing for the hearing of another complaint the Applicant was making about unlawful deduction of wages, the Applicant checked some advice that she had previously been given by her union, Unison, and the Low Pay Unit of Manchester City Council, which was to the effect that she had no claim under The Race Relations Act (that appears in paragraph 2 of the Tribunal's Decision). At that stage, the Applicant was advised by ACAS and in due course by South Manchester Law Centre that she might maintain a valid complaint. The Tribunal was satisfied that, within a matter of days after receiving that advice, she put matters in hand to lodge the present complaint. However, by that time an overall period of 4 months had expired so that, prime facie, the application was approximately one month out of time. That is what the Tribunal said in paragraph 3, but as I have just mentioned, for the purposes of this appeal we will treat the case as if the application was either one month, or two months, out of time.
6. So the factual situation is that the Applicant first sought advice from apparently qualified persons, namely her union and the Low Pay Unit at Manchester City Council, and received negative advice and as a result did not present her claim within time. She then later was advised by ACAS and the South Manchester Law Centre that she might have a claim and that she acted promptly on that advice, although by this time the time limit had expired.
7. The Tribunal addressed the question whether in those circumstances it was just and equitable to extend the time limit and had cited to them the case of Director of Public Prosecutions and Another -v- Marshall [1998] ICR 518. The principal argument before the Tribunal was that the Applicant should not be entitled to rely on the fact that she had received incorrect advice; if she had been badly served by those who advised her, then her remedy was against those persons.
8. The Tribunal reached its conclusion in paragraph 7 of its Decision when it says this:-

"We have applied that guidance"

- that is the guidance in Director of Public Prosecutions and Another -v- Marshall -

"to the facts of this case",

and they went on as follows:-

"It seems to us that the principles set out by Morrison J apply closely to the facts of this matter. We have asked ourselves whether it would be just and equitable to deny this applicant the right to bring proceedings when she was reasonably unaware of her right to do so. Given that the applicant did seek advice from apparently competent persons, it seems to us that the decision that she made not to proceed during the statutory period was entirely reasonable. Further, and, as the EAT indicated, importantly and perhaps crucially, we have considered whether it is possible to have a fair trial of the issues. We are quite satisfied that it is indeed possible to have a fair trial. Although we are conscious that this applicant failed to issue this application when there was no practical reason preventing her from doing so, the discretion under Section 68(6) of the 1976 Act is very much wider than that. In the exercise of that discretion and applying all relevant factors to the balancing act we are required to carry out, we are satisfied that it would be just and equitable to extend time and we so order."

That was the Tribunal's Decision. I think I have just said that the case of Marshall was cited to the Tribunal, but in fact it appears from paragraph 5 of their Decision that that case was referred to by the Tribunal as a result of their own research, and not as a result of being cited to them, so please allow me to make that correction.
9. In those circumstances, the appeal comes before us and it is, in effect, accepted by the Appellant, who contests the Decision of the Tribunal to extend the time in that way, that since it is an exercise of discretion by the Tribunal, the Appellant needs to show that the Tribunal took a demonstrably wrong approach, in the sense that it was an approach that no reasonable Tribunal could have taken, or left relevant facts out, or took irrelevant facts into consideration. In the last resort it would have to be shown that this particular exercise of discretion was perverse; that is a considerable hurdle for the Appellant to overcome, bearing particularly in mind that the just and equitable test is a very wide test, unlike the "reasonably practicable" test that applies in other areas of employment legislation, such as cases of unfair dismissal: see Section 111(2) of the Employment Rights Act 1996 .
10. The principal arguments put before us today by Mr Hughes, who has presented his case with admirable clarity and brevity, is that we should assume that the application was in fact two months out of time; that the case of DPP -v-Marshall is not in point, because that concerns the very special circumstances of a change in the law following a decision by the European Court of Justice, and that the principal reason why the appeal was out of time was that the Applicant received wrong advice from the first sets of lawyers that she consulted. She must take responsibility herself for that bad advice, she must be regarded as responsible for her own lawyers, and that she would have other forms of redress against them. Mr Hughes adds that this was a case where she had sought advice from apparently qualified lawyers who should have known what was going on. Reference is made in particular to the well known judgment of the Court of Appeal in The Walls Meat Company case [1978] IRLR 499, where Lord Denning, in particular, said that ignorance of the law is not a just cause or excuse for failing to observe a particular time limit. In this particular case there was no real reason why the Applicant should not have presented her case in time, it is just a question of her having received the wrong advice.
11. In our judgment, we are not able to say that the Decision of the Tribunal in this particular case was perverse, or that the Tribunal exercised its discretion in a way that no reasonable Tribunal could have exercised that discretion, or that it took into account irrelevant circumstances, or failed to take into account relevant circumstances. It appears that the Tribunal took into account three matters, as appears from paragraph 7 of their Decision: first, that the Applicant had sought advice from apparently competent persons, and thus was unaware of her right to bring the proceedings. Secondly, and as the Tribunal said, 'importantly', that it was possible to have a fair trial of the issues; and thirdly that the case was not out of time by a significant period, (the Tribunal, assuming initially, that the case was one month out of time, but the Chairman saying, in his Review Decision, that even if it was two months out of time, the same consideration applied).
12. As far as those three considerations are concerned, we are of the view that the Tribunal was entitled to have regard to each of those considerations. In our judgment, there is no automatic "read-across" from decisions such as the Walls Meat Company case, which are decisions under the very narrow test of whether it was 'reasonably practicable' to present a complaint in the context of the unfair dismissal legislation. The expression 'just and equitable' is a very wide expression and in our judgment a Tribunal is entitled to take into account the fact that an Applicant had sought advice from apparently competent persons, and that she had later obtained different advice. The fact that she had got 'wrong' advice at an earlier stage is a factor that the Tribunal is entitled to take into account under a just and equitable test.
13. Secondly, it is true to say that whether the period is one month or two months, she is not out of time by a significant period. Thirdly, and in our view, in this case most importantly, it was apparently conceded, and it has not been suggested otherwise, in this particular case, that the Respondent had suffered no prejudice as regards the facts of this particular matter. That is probably the most important consideration to bear in mind in cases of this kind. We have therefore come to the view that there is no reasonably arguable point of law on this appeal, and that accordingly the appeal must be dismissed.