United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr M.S. Panesar (of Counsel)


 


JUDGE COLLINS:

1. This is the preliminary hearing of an appeal against the decision of an employment tribunal sitting at Birmingham. It was a reserved decision promulgated on 3 November 1999, after an 8day hearing. Rather surprisingly after an 8 day hearing, the decision which the tribunal came to was that the appellant's application under the Race Relations Act 1976 was out of time.
2. The essential facts are that the appellant was a sheet metal worker rectifier employed by the respondents from 1980. He applied for a better job in the new Mini production process and was interviewed on 18 February. He did not get one of the jobs that was available and felt that the decision was on racial grounds, although he did not mention it at the time. He went through the elaborate grievance procedure operated by Rover involving 3 separate stages. By the time he got to the third stage on 22 June 1998 he succeeded in persuading the employers that he should have the opportunity of a move to the job he wanted and was told that when further posts became available in the following January, he would be at the top of the list. And apparently, the employers accepted that there was some flaw in the original process.
3. It was not until 22 June 1998 when he succeeded in establishing what he wanted through the grievance procedure that the appellant first said that the original interview procedure back in February was tainted by racial discrimination. And it was that matter which was the subject of his application dated 6 August 1999 to the employment tribunal. Counsel represented both parties and Mr Panesar who has appeared before us this morning and argued the case below, has not been able to give us a satisfactory explanation as to why the question of limitation was not taken as a preliminary point before 8 days were taken up.
4. In the event, the tribunal decided first, that the grievance procedure was not racially discriminatory. They looked at the original interviewing procedures and decided without any expression of difficulty in entertaining the merits because of the lapse of time, that the original interviewing procedures had been discriminatory on the grounds of race. That is expressed in paragraph 24 of their reasons where they say:-

"The Tribunal has concluded that the Applicant was treated less favourably and in the absence of any explanation for the differential treatment between the Applicant and candidate 6, has further concluded that it was on the grounds of the Applicant's race."

5. Having come to that conclusion on the facts, the tribunal determined that the application for racial discrimination was made 6 weeks out of time and that it would not be just and equitable to extend time. The reasons why the tribunal decided it would not be just and equitable to extend time were essentially that the appellant informed his union representative, who had acted for him throughout all of his concerns, that he was racially discriminated against, acted on the advice of that representative, right up until the hearing on 22 June and did not disclose his concerns to the employers. But as Mr Panesar points out that is only one of the factors and not necessarily the decisive one which the tribunal should have considered. In his skeleton argument he refers to the decision of this tribunal in Mills & Crown Prosecution Service v Marshall [1998] IRLR 494, where Morison J suggested that the crucial issue may be whether it is now possible to have a fair trial and issues. And he also referred to the decision of this tribunal in British Coal Corporation v Keeble and Others [1997] IRLR 336, where it was held that the discretion to extend time on just and equitable grounds was as wide as the discretion conferred on the court by s.33 Limitation Act 1980.
6. It seems to us in those circumstances that it must be reasonably arguable that the tribunal having entertained all the evidence and come to a conclusion on the evidence without suggesting that it was disabled or in some way hampered in doing so by the lapse of time, was wrong to decide that it was not just and equitable to extend time without giving much fuller reasons, based upon examination of the authorities which Mr Panesar placed before them. We order that this case proceed to a full hearing.