United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P LOWNDS (of Counsel) Instructed By: Mr T Harries Messrs Amphlett Lissimore Solicitors 29 Westow Street Crystal Palace London SE19 3RW
For the Respondents	MR T DE LA MARE (of Counsel) Instructed By: Mr M Cantrell Office of the Solicitor Department of Social Security Room 527 New Court 48 Carey Street London WC2A 2LS


 


MR JUSTICE CHARLES: The parties to this appeal are a Mrs Gonnella (the Appellant before us and the Applicant before the Employment Tribunal) and the Benefits Agency.

1. The appeal is against a decision of an Employment Tribunal sitting at London (South), the Extended Reasons for which were sent to the parties on 20 July 1998. Their decision was that the Tribunal should not consider the complaint. Accordingly the Employment Tribunal dismissed the application. The reason for their conclusion was that the complaint was out of time and it was not just and equitable for them to consider the Applicant's complaint.
2. The Applicant's complaint was a claim under the Sex Discrimination Act 1975 and the Race Relations Act 1976. Both these Acts contain provisions in the same terms as to the time limit for bringing a claim and the ability of an Employment Tribunal to hear a claim out of time. We cite the relevant section in the Race Relations Act 1976 (namely section 68 thereof). It provides as follows:

"68(1) An employment tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of -

(a) the period of three months beginning when the act complained of was done; or

…

(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."

3. On the Preliminary Hearing this Tribunal indicated as follows:

"It seems to us to be arguable that in relation to the way the Tribunal have approached the exercise of discretion, they have sought to apply the principles which are more familiar with unfair dismissal 'reasonable practicability' for presenting complaints. … She is entitled to argue, as it seems to us, that the Employment Tribunal have not balanced the relative injustices to the parties of granting or refusing leave. That therefore, we regard as an arguable point of law but wish to give no indication as to the way we would have decided that issue. It seems to us it should be considered at a further hearing."

This Tribunal also indicated that an issue arose in these proceedings as to whether the application fell within the Race Relations Act and the Sex Discrimination Act having regard to the fact that the Applicant was white of Caucasian ethnic origin and was complaining of treatment afforded to her because her name was Italian. As to that issue this Tribunal in its judgment on the Preliminary Hearing said this:

"It seems to us also, that as the Employment Tribunal did not themselves consider the other question, the Employment Appeal Tribunal should itself do so, whatever the outcome of the appeal on the first issue. It is a potentially important question and as far as we are aware without any research, it is an issue which has not been considered before. It raises the question as to whether it could be said to be discrimination against her by reason of her married status, or alternatively, it may be said that the Race Relations Act is apt to cover a case in which there are acts of unfavourable treatment based on a belief about somebody's nationality or colour which belief is ill-founded.

4. Before us neither of the parties (who were both represented by Counsel) sought to argue points as to the application of the Race Relations Act and the Sex Discrimination Act. In our judgment in taking this stance they acted correctly. Accordingly we have not considered this point.
5. The Notice of Appeal does not raise the point identified and found by this Tribunal on the Preliminary Hearing to be reasonably arguable in respect of the test and approach applied by the Employment Tribunal. Further on the Preliminary Hearing this Tribunal did not expressly deal with and dismiss the grounds raised in the Notice of Appeal. Accordingly we allowed the Appellant to advance those grounds albeit that we have concluded that as "free standing" arguments they do not raise reasonably arguable points of law and in our judgment this was why this Tribunal identified a different point at the Preliminary Hearing.
6. The Appellant did not seek to amend her Notice of Appeal to add the point identified as being reasonably arguable by this Tribunal on the Preliminary Hearing. Further, in the Skeleton Argument put in on her behalf the Appellant sought to rely on a further point by reference to the decision of this Tribunal in Aniagwu v London Borough of Hackney and Owens [1999] IRLR 303. We permitted the Appellant to argue both these points without a formal amendment being made to the Notice of Appeal and notwithstanding the fact that the Aniagwu case had not been decided at the time this matter was before the Employment Tribunal. In our judgment this did not prejudice the Respondents because as to the point identified by this Tribunal on the Preliminary Hearing they have known of it since that time and, in any event, they dealt with both points in the Skeleton Argument put in on their behalf. Further the factual basis for the argument based on the Aniagwu case was dealt with by the Employment Tribunal.
7. Finally before turning to the arguments we record that Counsel for the Appellant did not pursue the grounds or points contained in paragraph 6(1)(d) and 6(2) of the Notice of Appeal. He did not demur when Counsel for the Respondents indicated that he had abandoned those points. In our judgment Counsel for the Appellant was correct not to pursue those points or grounds.

The test and approach applied by the Employment Tribunal

8. There are two limbs to the Appellant's argument under this heading, namely:

(A) that the Employment Tribunal applied the test of reasonable practicability and thus the test contained in section 111 Employment Rights Act 1996, or

(B) in applying the 'just and equitable' test the Employment Tribunal failed to have proper regard to all the circumstances and in particular had undue regard to the practicability or feasibility of the Applicant presenting her claim within the three month period.

9. It is common (and correct) ground before us that the "reasonable practicability" test contained in section 111 Employment Rights Act 1996 is different to, and more stringent than the "just and equitable" test or approach contained in the Race Relations Act and the Sex Discrimination Act (for example, see and compare Biggs v Somerset County Council [1996] IRLR 203 and British Coal Corporation v Keeble [1997] IRLR 336).
10. As we understand the judgment of this Tribunal on the Preliminary Hearing the point that they identified as being reasonably arguable is covered by point (B) above. This point also covers the argument advanced before us based on the Aniagwu case.
11. In our judgment on a fair reading of the Extended Reasons point (A) above is a bad one. In our judgment it is apparent from the following citations from the Extended Reasons that the Employment Tribunal applied the "just and equitable" test set out in the Race Relations Act and the Sex Discrimination Act, namely:

(a) Paragraph 1(a) of the Extended Reasons where the Employment Tribunal state as follows:

"An Interlocutory Order of the Industrial Tribunal was made on 26 May 1998, part of that Order was that there would be a Preliminary Hearing before a full tribunal to consider the following points:

(a) whether a Tribunal is entitled to consider the Applicant's application, having regard to the time limits laid down by section 68 of the Race Relations Act 1976 and section 76 of the Sex Discrimination Act 1975, including the provisions which are now (sic) an application to be heard, notwithstanding that it is out of time.

This subparagraph shows that the Tribunal had the correct sections in mind.

(b) Paragraph 10 of the Extended Reasons where the Employment Tribunal state:

"10. The Respondent submitted that whilst the just and equitable jurisdiction of the Tribunal is wider than the 'reasonable practicable' test, nevertheless, the jurisdiction has to be carefully exercised. …"

This shows that the Employment Tribunal were aware that they were considering the "just and equitable" test and that it was different to the "reasonable practicability" test, and

(c) the following passages contained in paragraph 12 of the Extended Reasons:

"12. … We consider that it is not appropriate to exercise our just and equitable jurisdiction … . Therefore, having considered all the circumstances of the case the Tribunal conclude that it is not just and equitable to consider the Applicant's complaint … ."

These two passages show that the Employment Tribunal were applying the "just and equitable" test.

12. We therefore turn to consider point (B).
13. In our judgment, in this context it is not correct to read paragraph 12 of the Extended Reasons (namely the conclusions paragraph) in isolation, and it is necessary to have regard to the facts found by the Employment Tribunal, the submissions made to them and their conclusions recorded in the Extended Reasons.
14. This flows from the approach that this Tribunal takes to Extended Reasons when it is considering whether the Employment Tribunal has erred in law or not provided adequate reasons for their decision. There are a number of authorities relating to this. We refer only to two, namely:

(a) Hollister v National Farmers' Union [1979] ICR 542 at 552H to 553D, which is the following terms:

"There is only one other matter to which I would refer. In these cases Parliament has expressly left the determination of all questions of fact to the industrial tribunals themselves. An appeal to the appeal tribunal lies only on a point of law: and from that tribunal to this court only on a point of law. It is not right that points of fact should be dressed up as points of law so as to encourage appeals. It is not right to go through the reasoning of these tribunals with a toothcomb to see if some error can be found here or there – to see if one can find some little cryptic sentence. I would only repeat what Lord Russell of Killowen said in Retarded Children's Aid Society Ltd v Day [1978] ICR 437, 444:

'I think care must be taken to avoid concluding that an experienced industrial tribunal by not expressly mentioning some point or breach has overlooked it, and care must also be taken to avoid, in a case where the Employment Appeal Tribunal members would on the basis of the merits and the oral evidence have taken a different view from that of the industrial tribunal, searching around with a fine toothcomb for some point of law.'

It does seem to me that in this particular case, if one does not use a toothcomb, if one looks at the findings of this tribunal broadly in accordance with what they have said, it is found that there was a substantial reason for this dismissal. Not only was there a substantial reason, but in the circumstances of the case the employers acted reasonably in treating it as a substantial reason having regard to equity and the substantial merits of the case. Therefore the dismissal was fair.

I would reverse the appeal tribunal and restore the decision of the industrial tribunal."

(b) Meek v City of Birmingham District Council [1987] IRLR 250, at 251 where Bingham LJ says:

'It has on a number of occasions been made plain that the decision of an industrial tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the Employment Appeal Tribunal or, on further appeal, this court to see whether any question of law arises; …'."

It follows that on a benevolent approach to Extended Reasons read as whole (and thus one which does not use a toothcomb) this Tribunal has to consider whether the Extended Reasons contain a sufficient account of the facts and of the reasoning to enable it to see whether the Employment Tribunal applied the correct approach in law and why they reached the decision they did. The fact that the Employment Tribunal do not mention something in their reasoning does not mean that it should be concluded that they did not have regard to it, or that they erred in law. This is particularly the case when the exercise of a discretion is being considered and the facts or factor it is said the Employment Tribunal failed to take into account, or failed to take into account properly, is included in the facts found or set out.

15. We therefore have to consider paragraphs 3 to 12 of the Extended Reasons as a whole. They are in the following terms:

"3. Having heard the evidence of the Applicant, the Tribunal heard the following facts on the balance of probabilities. The facts are set out only insofar as they relate to the preliminary issue.

4. The Applicant alleged that she suffered unfavourable treatment at the hands of two work colleagues working in the fraud section of the Benefits Agency with her. She alleges that she suffered less favourable treatment in the form of comments made to the effect that she was dishonourable or disreputable, and that the underlying reasons for these comments was that she had an Italian name. The incidents culminated on 7 November 1997 with her colleagues apparently gaining access to information stored on a computer with a view to determining whether or not she was claiming welfare benefits. This she found both disturbing and upsetting. She reported the incident to her manager at the earliest opportunity which was on 12 November 1997.

5. On Friday 14 November, the Applicant was ill and was admitted to hospital. She was discharged on Friday 22 November. However, she continued to be absent from work due to her ill-health until she returned on 19 January 1998. During that period, the Applicant made a complaint to her line manager and an investigation into her allegations commenced.

6 When she returned to work on 19 January 1998, the Applicant was placed in a different work place. She had worked full-time before her illness, but she worked part-time on her return approximately three hours per day for five days per week. During the first week of her return to work, the Applicant sought assistance from Care First, which is a counselling service made available to the Respondent's employees. She discussed with a counsellor the difficulties the treatment by her colleagues had caused her. A counsellor, who was not a legal adviser, advised her that she should obtain legal advice. The Applicant knew that full legal advice was available to her via a free telephone legal advice service. The Applicant did not seek legal advice because she did not think she needed to do so at that time, the investigation into her allegations were pending and she did not see why it was necessary. She now concedes that it would have been prudent to do so.

7. The act of discrimination complained of occurred on 7 November, therefore the three months time limit expired on 6 February 1998.

8. The Applicant was admitted to hospital again on 9 February and was discharged on 15 February. She received a letter from the personnel department advising her that she would receive half pay by the end of March. It was then that she contacted the legal help-line, in order to see whether anything could be done to assist her. The legal help-line advised her that her originating application should have been presented to a tribunal three months after the date of the incident on 7 November and that she was out of time. They advised her to present her complaint as soon as possible.

9. Following her telephone conversation, the Applicant contacted the personnel department and eventually was given form IT1 to complete. She completed the form two or three days after she received it and presented her complaint on 27 February 1998.

THE SUBMISSIONS

10. The Respondent submitted that whilst the just and equitable jurisdiction of the Tribunal is wider than the 'reasonable practicable' test, nevertheless, the jurisdiction has to be carefully exercised. From the middle of January, the Applicant was told to take legal advice and was content not to do so. Whilst this occurred before a back-drop of ill-health this would not make the Applicant's failure to present her complaint a sufficient reason for the Tribunal to use its just and equitable jurisdiction. The Applicant had an adequate opportunity to present her complaint in time. She got advice within a day once she made an effort to do so and she could have sought advice from the Citizens Advice Bureau. When she did take advice, she did not present her claim to the Tribunal as quickly as she might have done. Her illness provides some explanation but does not provide an excuse.

11. The Applicant submitted that the Tribunal should take into consideration all of the circumstances when deciding whether to exercise its jurisdiction in this case. The incident occurred on 7 November. It was reported to her line manager on 12 November and on 14 November, serious medical problems reoccurred. She was in hospital for a week and her manager attended hospital for her to make her complaint against her colleague. During the course of the next seven weeks, the Applicant concentrated on recovering from her illness. The effect of stress could have serious medical consequences. She returned to work in January and booked counselling. She moved to a new department carrying out a fresh job in fresh circumstances. The advice from Care First was to seek legal advice. She considered this, but the trigger was that she was given a letter saying that she would be on half pay. She was then told that she was out of time. The Applicant dealt with the matter straightaway and presented her complaint as soon as she could after getting legal advice. The Tribunal should find that the Applicant acted swiftly in making her application.

CONCLUSIONS

12. It appears to the tribunal that had the Applicant taken the advice of the Care First counsellor and sought legal advice promptly, she would have had a reasonable opportunity to present her complaint within the statutory time-limits. We have considered her explanation, firstly, that she did not understand why she needed to take advice, and, secondly, that her time was for the most part taken up with dealing with her illness. We consider that the time limits exist to ensure that complaints are brought promptly to the Tribunal and they are dealt with very strictly for that reason. We consider that it is not appropriate to exercise our just and equitable jurisdiction because the Applicant simply did not see the importance of obtaining legal advice at an earlier stage. We do not accept that she was prevented from seeking legal advice because of her ill-health. We bear in mind that she was back at work part-time, from 19 January and had every opportunity to make a telephone call had she considered it a priority. Therefore, having considered all of the circumstances of the case the Tribunal concludes that it is not just and equitable to consider the Applicant's complaint and we dismiss this originating application."

16. Hutchison v Westward Television Ltd [1977] ICR 279, in particular at page 282 E to F makes it clear that the task of an Appellant in establishing that an Employment Tribunal has erred in the exercise of the discretion conferred by section 68 (6) of the Race Relations Act 1976 and thus the "just and equitable" test is a heavy one.
17. In paragraphs 6 (1)(a), (b), (c) and (e) of her notice of appeal the Appellant raises facts by reference to which she asserts that the Employment Tribunal was wrong to conclude that it was not just and equitable to extend time. In short these were that (a) the complaint was only 21 days out of time, (b) for a continuous period of over 2 months from 14 November 1997 to 19 January 1998 the Appellant was too ill to work, on her return to work on 19 January she could only work 3 hours a day and was readmitted to hospital on 9 February, (c) her illness was stress related and she found the incident on 7 November 1997 distressing, and (d) she acted promptly after receiving legal advice.
18. In the unamended notice of appeal these matters are relied on to support a general assertion that they show an error of law or alternatively perversity. All the matters are referred to in the findings made by the Employment Tribunal and therefore it cannot be said that they were left out of account. Before us they were relied on in support of point (B) and thus in support of the general argument that in applying the "just and equitable" test the Employment Tribunal erred in law by placing too much weight on practicability and too little weight on other factors including those listed and the fact that the Appellant was pursuing an internal process of complaint and grievance.
19. We were shown the document setting out the procedure for the internal complaint. We were told, and accept, that this was before the Employment Tribunal. It states (amongst other things) (i) that a complaint to an Industrial tribunal must normally be made within 3 months of the act of harassment or discrimination, and (ii) that whether or not the complainant is satisfied with the outcome of the complaint and subsequent investigation he or she can go to an Industrial Tribunal. It also shows, as we would expect, that if a complaint is upheld it can lead to disciplinary action being taken but generally not to compensation (or an ex gratia payment) being paid.
20. Paragraph 19 of the decision in the Aniagwu case is in the following terms:

"It seems to us that that is entirely compatible with the reason given by the applicant, as to why he had delayed, and if the tribunal had asked themselves whether, in those circumstances, the applicant had acted reasonably, it seems to us that every tribunal would have concluded that he was well entitled to take the view that it would be sensible to seek to redress his grievance through the internal grievance procedure before embarking on legal proceedings.

That was the position he had made plain to Hackney in the internal documents and it seems to us that every industrial tribunal, unless there was some particular feature about the case, or some particular piece of prejudice which the employers could show, would inevitably take the view that that was a reasonable and proper attitude for someone to take, albeit that he had an extant complaint of race discrimination. He was looking to have his grievance resolved rather than go to law."

In our judgment that passage, and the judgment as whole do not support a submission that the Aniagwu case is of general application and leads to, or supports, the result that always, or generally, when the last appeal of an internal process took place within three months of the making of an application, an Employment Tribunal should allow an extension on the just and equitable ground to bring the complaints which were the subject matter of that appeal process. Our view that the Aniagwu case does not have that effect is supported by London Borough of Waltham Forest and others v Omilaju (Unreported – EAT/986/99) heard in this Tribunal on 17th January 2000 by the President (see in particular paragraph 22 of the judgment and Dean v London Borough of Islington (Unreported – EAT/594/97), which was an appeal heard by a Tribunal which I chaired. In our view it is apparent from paragraph 19 (set out above) that in the Aniagwu case this Tribunal had regard to its special facts and in particular:

(a) the fact that the Applicant in that case had taken the view that it would be sensible to seek redress through the internal grievance procedures before embarking on legal proceedings, and

(b) that decision of the Applicant was made known to the Respondents.

Those are special facts which do not exist here.

21. However, in our view the Aniagwu case does provide authority for the propositions that:

(i) one of the circumstances that should be taken into account in exercising the discretion conferred by section 68(6) of the Race Relations Act and section 76(5) of the Sex Discrimination Act is that an applicant has been going through an internal appeal or grievance procedure which could resolve all, or some, of the issues with which he or she is concerned, and

(ii) there is force in the proposition that it is reasonable to go through and exhaust such procedures rather than go to law to achieve a the same, or a similar, result.

22. Therefore in this case the question arises whether the Employment Tribunal erred in law in the manner in which it had regard to, and took into account, the fact that the Appellant was exercising an internal grievance process when assessing whether in all the circumstances it was just and equitable to extend time for bringing the claim.
23. The Respondents did not assert that the failure of the Appellant to bring her complaint in time would cause them prejudice in the presentation of their defence if the Appellant were allowed to proceed with her claim out of time.

Conclusion

24. We accept that this is a case in which another Employment Tribunal might have decided that it would have been just and equitable to extend time but in our judgment:

(a) the decision reached by the Employment Tribunal not to extend time is within the range of decision open to them on a proper exercise of their discretion, and

(b) the Appellant's argument that in reaching their decision the Employment Tribunal erred in law in their exercise of the "just and equitable" test they set themselves fails.

25. Albeit that we accept that the reference of the Employment Tribunal in their "conclusions paragraph" to the time limits being "dealt with very strictly" founds an argument that they placed too much emphasis on compliance with the time limit and took an approach based on practicability rather than what was just and equitable we have concluded that when the Extended Reasons are read as whole (i) this argument places to much weight on this phrase, and (ii) the Appellant's argument based on this phrase is one that is too linguistic and one that fails to have proper regard to the findings made by the Employment Tribunal which set out and therefore refer to the facts and reasons relied on by the Appellant in support of her argument that time should be extended. In our judgment it follows that when the Extended Reasons are read as a whole they show that the Employment Tribunal balanced these factors raised by the Appellant against the existence of the time limit and thus the need of the Appellant to show why it would be just and equitable to extend it.
26. The reasons and explanation given by the Appellant for not bringing the complaint in time did not include an assertion by the Appellant that she was awaiting the outcome of her internal grievance procedure save possibly, in the indirect sense, that she said that she did not seek the legal advice that she knew was available to her because she did not "think she needed to do so at that time, the investigation into her allegations were pending and she did not see why it was necessary" (see paragraph 6 of the Extended Reasons).
27. This was a case where the Appellant was not dismissed and therefore the internal grievance procedure was not one in respect of which it could be said (and it was not said by the Appellant) that it could give her all, or substantially, what she wanted and was seeking from the Employment Tribunal. As we have mentioned she would not have obtained, or would have been unlikely to have obtained any compensation or ex gratia payment as a result of the internal grievance procedure. The main thrust or focus of, and the possible results of (i) the internal grievance procedure and (ii) the complaint that the Appellant wishes to pursue before the Employment Tribunal, are therefore not the same. Further in paragraph 11 of the Extended Reasons it is recorded that the trigger to the Appellant seeking legal advice was her receipt of the letter saying that she would only receive half pay (and this corresponds with the finding in paragraph 8 thereof). The trigger to the Appellant seeking legal advice and her steps to claiming compensation was therefore the move to half pay which was related to her illness and absence from work. There is no allegation that her illness was caused, or substantially caused, by the incident on 7 November 1997 albeit that the Employment Tribunal accept and find that she found that incident distressing. It follows that the trigger to the Appellant's consideration of the institution of proceedings based on the incident on 7 November 1997, and thus the basis of her complaint, is only indirectly connected with the incident.
28. The Employment Tribunal refer to the institution of the internal grievance procedure and that the investigation was still pending when setting out the facts and in our judgment these points (like the other facts found and recited) are included in their reference to "all the circumstances of the case" in their conclusions paragraph (i.e. paragraph 12 of the Extended Reasons) when the Extended Reasons are read as a whole. Further in our judgment the points made in paragraphs 26 and 27 hereof have the consequence that it cannot be said that the Employment Tribunal did not give sufficient weight to the existence and continuation of the internal grievance procedure.
29. The lack of any prejudice to the Respondents in the presentation of their defence is a factor that is not expressly mentioned by the Employment Tribunal in their recital of the Appellant's arguments or elsewhere in the Extended Reasons. It was not argued before us that this was a factor relied on expressly by the Appellant before the Employment Tribunal which they omitted to record. We make no criticism of those representing the Appellant for not expressly advancing, or seeking to emphasise, this point in favour of an extension of time before the Employment Tribunal because it seems to us on a fair reading of the Extended Reasons that, in the circumstances of this case, it was an obvious factor and a starting point for (i) both sides, and (ii) the Employment Tribunal in their consideration of the issue whether or not it was just and equitable to extend time. The lack of prejudice to the Respondents was therefore "joint common ground". If this had not been the case there would have been an argument as to, or a reference to, points of prejudice raised by the Respondents. It follows that in our judgment the fact that this factor is not expressly mentioned in the Extended Reasons does not lead to the conclusion that it was left out of account.
30. It follows from what we have said that the Appellant's alternative argument based on perversity also fails.
31. For the reasons given herein we dismiss this appeal.