United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	STUART RICHIE (of Counsel) Messrs Wedlake Saint 14 John Street London WCIN 2EB
For the Respondent	TIMOTHY BRENNAN (of Counsel) County Secretary & Solicitors Dept Hertfordshire County Council County Hall Pegs Lane Hertford SG13 8DF


 


RECORDER SLADE QC

1. This is an appeal by Mrs Rai against the decision of a Tribunal Chaired by Mr Rice entered in the register on 14 July 1998 (the Rice Tribunal) that: -

"(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. Mrs Rai who had been employed as a Section 11 Education Welfare Officer by the Respondent had presented an IT1 including a complaint of unfair selection for redundancy, unfair dismissal and racial discrimination. Her claim was presented some 7 days after the effective date of termination of her employment. The Respondents in their Notice of Appearance contended that her complaints were out of time.
3. A preliminary hearing was conducted by a Tribunal Chairman Mr Simpson sitting alone (the Simpson Tribunal) on 31 March 1998 to determine whether the complaints were time barred. I call his decision the Simpson decision? At that hearing Mrs Rai was represented by a trainee solicitor, the Respondents by Counsel. The Simpson Tribunal held that the unfair dismissal claim was made out of time and he dismissed that claim.
4. As to the race discrimination claim Mr Simpson decided that the time for presenting the claim for race discrimination was extended to 26 January 1998. He also ordered Mr Rai to serve on Hertfordshire County Council, the Respondents, by 14 April 1998 full particulars of all facts and matters to be relied upon in relation to her claim for race discrimination.
5. The points of legal principal which are to be applied to this case are clear and uncontroversial. First a decision of an Employment Tribunal can give rise to issue estoppel. Munir –v- Jang (1989) ICR 1. Second, even if no evidence is heard, which it may have been by the Simpson Tribunal, can arise. The Simpson Tribunal was seized of and decided upon the question of whether the claim for race discrimination then made by Mrs Rai should be considered notwithstanding that it was presented out of time. Mr Simpson decided to exercise his discretion under the Race Relations Act Section 68 (6) and considered that it was just and equitable to consider Mrs Rai's claim for race discrimination. He then, as stated earlier, gave directions for particulars of facts and matters relied upon to be given.
6. There was no appeal from or application for review of the Simpson decision.
7. Mrs Rai gave particulars of facts and matters relied upon by the latest 24 April 1998. Her claim came before the Rice Tribunal for hearing of her race discrimination claim on 2 July. By then, as I have said, particulars had been given and witness statements had been exchanged. The Respondents, on 25 June, applied to strike out her claim for failure to comply with certain directions or in the alternative applied for further and better particulars to be provided by her and also for an adjournment. Thus the matter came before the Rice Tribunal.
8. The Rice Tribunal in paragraph 7 of its decision expressed themselves as concerned at the overall position and they state: -

"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 has 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 1977 by which time the Applicant was no longer in the Respondent's 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 it was just and equitable to 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."

9. Counsel before us has advanced the following contentions. First on behalf of Mrs Rai, it is said that the Simpson decision was to the effect that all the allegations that Mrs Rai was making in her IT1 together with the particulars served in amplification and in accordance with the order of Mr Simpson should go forward. It is contended that the IT1 complaint of race discrimination and the complaint before Mr Simpson were not only complaints of race discrimination or discrimination by victimisation by way of dismissal, but also were of complaints of racial harassment stretching over a period from 1990 to 1997. It is contended on behalf of Mr Rai that the Simpson decision was to the effect that it was just and equitable for a Tribunal to hear all those allegations.
10. For Hertfordshire, the Respondents, it is said the decision of the Simpson Tribunal was that any complaint of discrimination in relation to dismissal could go forward, but that none of the other matters of racial harassment, which Mrs Rai seeks to raise i.e. of racial harassment between 1990 and 1997 should be heard since none of those matters formed grounds of complaint before Mr Simpson. It is said that Mr Simpson's decision is not to be read as including those matters. On behalf of Hertfordshire it is also said that before the Rice Tribunal, the complaint of Mrs Rai regarding dismissal was not pursued and was in effect abandoned. The remaining complaints which were advanced before the Rice Tribunal were those in the particulars and they were ruled by the Rice Tribunal to be out of time. It is said that after the Rice Tribunal decision there is no outstanding complaint of race discrimination which can be proceeded with on behalf of Mrs Rai.
11. For Hertfordshire, the affidavit served and sworn in this matter by Mr Rice, the Chairman, is referred to and in particular a passage in which the Chairman states that the Applicant at the hearing before him referred to other acts of racial discrimination and not to her dismissal. However, it is to be noted that the Rice decision contains no reference to an express abandonment by Mrs Rai of any complaint of race discrimination in relation to her dismissal. It is further said, on behalf of the Respondents that it is not for an Employment Tribunal, even faced with an unrepresented party to ensure that every allegation in an Originating Application is dealt with. Reference was made to Mensar –v- East Hertfordshire Health Authority (1998) IRLR 531.
12. It seems to us clear that the Rice Tribunal could not reopen an issue decided by Mr Simpson. It is therefore material to consider what the Mr Simpson decided. In express terms he decided that the time for presenting the claim for race discrimination should be extended to 26 January 1998. That terminology does not fit exactly with his statutory powers and is not within the statutory language, however, one takes that order to mean that Mr Simpson decided that it was just and equitable hear Mrs Rai's complaint of race discrimination. The question then arises which complaint of race discrimination did Mr Simpson decide that it was just and equitable to hear. It is plain that the complaint of discrimination being made at the time was of either race discrimination or discrimination by victimisation by reason of the dismissal.

In Mrs Rai's IT1 it is stated: -

"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"

13. We think it is clear from the IT1 that the complaint that Mrs Rai was making was of race discrimination or victimisation by dismissal. If we are wrong in that at most the IT1 is ambiguous and in those circumstances we think it is permissible to look to the reasons given by Mr Simpson for his decision in order to ascertain the content of his order.
14. Turning to the reasons we see reference in paragraph 2 of the Extended Reasons to the fact that the latest date upon which there can be an allegation of race discrimination as being the 19 October 1997, which was the date of Mrs Rai's dismissal. In paragraph 5 we see that it was contended for Mrs Rai that she should be excused the delay of 7 days. The 7 days is a reference to the additional time over and above 3 months between the effective date of termination on the 19 October and the date of presentation of the Originating Application on 26 January 1998. Further, looking at paragraph 10 of the decision we see references by the Chairman, in exercising his just and equitable discretion, to the fact that he bears in mind that the eventual delay is a matter of only 7 days. Further on he says: -

"Had the application been presented only 7 days earlier the respondent would have had no choice but to deal with it."

15. We conclude from the extended reasons that the complaint in respect of which Mr Simpson considered it was just and equitable to extend time was a complaint of discrimination by being dismissed because it is the date of dismissal that is taken as the reference point for all his observations on exercising his just and equitable discretion. Also it is to be noted that the way the case appears to have been advanced on behalf of the Applicant was that there was simply a delay of 7 days: we see that recorded in paragraph 5 of the decision that view is also supported by an attendance note made by the Applicant's own representative that only 7 days out of time not prejudicial to Respondent. Such observation would be meaningless in respect of complaints of race discrimination stretching over a period and having occurred in the period between 1990 and 1997.
16. Thus we conclude that the Simpson decision was that it was just and equitable to hear the complaint of race discrimination and discrimination by way of victimisation in respect of Mrs Rai's dismissal. So far as the order that he made in respect of particulars of all facts and matters to be relied upon we think it was just that. There was no indication there that Mr Simpson was giving leave to amend the Originating Application to let in other matters or that he considered it just and equitable to allow much older complaints to be heard by a Tribunal.
17. Thus when the matter came before the Rice Tribunal the complaint of race discrimination or discrimination by way of victimisation in respect of the dismissal should have been heard. By that time other matters had been particularised by Mrs Rai. It seems that what occurred before the Rice Tribunal may have been, or perhaps should have been treated as an application to amend the Originating Application to allow those other matters to be heard as matters of complaints of race discrimination in themselves as contrasted with supporting evidence of the complaint which was before the Tribunal.
18. For the reasons outlined above this appeal is allowed and the decision of the Rice Tribunal set aside in so far as it relates to the complaint of the race discrimination and discrimination by way of victimisation relating to Mrs Rai's dismissal. We direct that there shall be a hearing of that complaint of discrimination by a differently constituted Tribunal.