United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS SALLY ROBERTSON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE PETER CLARK

1. This is an appeal by Mr Okoruwa, the Applicant before the London (North) Employment Tribunal against that Tribunal's decision, promulgated with extended reasons on 29 February 2000, dismissing his complaint of racial discrimination against his employer, the Respondent Benefits Agency, on the ground that it was time-barred.
2. The background is as follow. The Appellant has been employed by the Respondent since 1987. At all relevant times he was an Executive Officer. In April 1998 he applied for promotion to Higher Executive Officer grade. He was not supported in that application by his Manager, Malcolm Sillick. He appealed against that promotion report. His appeal was dismissed by Sue Harris on 2 March 1999. That was the actual discrimination on which he relied. If that was the material date for limitation purposes the ordinary 3 months limitation period expired on 1 June 1999.
3. His Originating Application was not recorded as having been presented to the London (N) Employment Tribunal until 27 September 1999, just under 4 months out of time.
4. the Tribunal received evidence from the Appellant as to the steps which he took to present his complaint. They record that evidence as follows.
5. In mid-May 1999 the Appellant became aware of the 3 month time limit for claims as a result of his own researches. He then went directly to the Shepherds Bush Citizens Advice Bureau and obtained a form IT1. On 24 May he wrote to Ms Harris, informing her that he was 'appealing' against her decision, that the time limit would expire on 1 June, and that he would be completing his 'appeal' and forwarding it to the appropriate body outside the Benefits Agency, to reach them on or before 1 June. We at first took that to be a reference to lodging a complaint with the Employment Tribunal, however we are told by Ms Robertson that what the Appellant intended to convey was that he would be submitting his case to the Commission for Racial Equality.
6. On 1 June he sent a full set of papers to the Commission for Racial Equality, he says he expected them to be forwarded to the Tribunal. His evidence was that on 3 June he spoke to someone at the Commission for Racial Equality who asked him to fax his form IT1 and papers to the Tribunal and ask the Tribunal to extend the time limits. He said he did so (by fax) to the Croydon, that is London (S) regional office and that he received no response from that office. He said that he sent further correspondence to the Tribunal (by special delivery) on 11 June 1999 and (by fax) on 6 July 1999 but that he received no reply.
7. He received correspondence from the Commission for Racial Equality on 17 June, 23 July ( 2 letters), 7 September and 13 September. During the period 6 July - 23 September 1999, he had not contacted the Croydon Tribunal to enquire as to whether they had received and processed his form IT1.
8. He did not contact the Commission for Racial Equality during the period 23 July - 7 September. On 23 September he went to the Croydon Tribunal. That office had no record of his form IT1. He filled in another form IT1 which he lodged with the Tribunal. The Croydon Tribunal sent that document to the London (N) Tribunal where it was registered on 27 September.
9. In these circumstances the Tribunal concluded:

(1) this was not a complaint of a continuing act of discrimination. The act alleged was the Respondent's refusal to uphold his internal appeal on the 2 March 1999. Time began to run from that date.

(2) the appellant was aware of the 3 months time limit in mid-May 1999. He had time to lodge his complaint within the time.

(3) he did not do so although he was able to forward his documents to the Commission for Racial Equality on 1 June 1999. The Tribunal held that it was unreasonable for him to expect the Commission for Racial Equality to lodge his form IT1 immediately.

(4) there was no evidence that the Employment Tribunal at Croydon had received letters from him dated 3 June, 11 June (by special delivery) and 6 July (by fax).

(5) he received letters from the Commission for Racial Equality dated 17 June, 23 July (2 letters), 7 September and 13 September, but made no attempt to contact the Croydon Tribunal between 6 July and 23 September to check whether his application had been received.

(6) on 23 September he attended at Croydon to be told that they had no record of having received his application. He then filed a fresh Originating Application, which the Croydon Tribunal sent to London (N) where it was registered on 27 September.

10. In all these circumstances the Tribunal held first that the complaint was out of time and secondly that it was not "just and equitable" to extend time under Section 68(6) of the Race Relations Act 1976.
11. Against that decision this appeal is brought and today we have had the advantage of argument from Ms Robertson, under the ELAAS pro bono scheme. She takes essentially 2 points on behalf of the Appellant.
12. The first is that the Tribunal were wrong as a matter of law to find that there was not a continuing act. There was some evidence before the Tribunal to suggest that the dismissal of his internal appeal on 2 March 1999 formed part of a policy or practice of discrimination on the part of the Respondent.
13. We are unimpressed with that argument. In our view it is quite clear that the act of discrimination complained of was a one-off act, that is the dismissal of the internal appeal on 2 March.
14. In these circumstances we are satisfied that the Tribunal was entitled to take that date as the start date for the ordinary 3 month limitation period.
15. The second point we think has more substance. In a nutshell, Ms Robertson submits that the Tribunal, having set out the Appellant's evidence and contentions in paragraph 4 of their reasons, then fail to make clear findings of fact as to whether or not he did indeed fax and send a copy of an Originating Application to the Tribunal on 3 June and subsequently on 11 June and 6 July. She submits that it was necessary to make clear findings of fact on those evidential points in order that the Tribunal could properly determine the question, as to whether or not it was "just and equitable" to extend time. There is a material difference between an Originating Application lodged 2 days out of time and one which is lodged just under 4 months out of time.
16. It is not clear from the Tribunal's reasons that they were saying in terms that it would not be "just and equitable" to extend time if indeed an Originating Application was lodged on 3 June.
17. We think that that submission is arguable and ought to proceed to a full hearing. We have in mind particularly that in paragraph 7(4) of the Tribunal's reasons they say this:

"There is no evidence that the Applicant presented his IT1 to the Croydon Tribunal on 3 June 1999."

18. Pausing there, there was evidence. There was evidence from the Applicant. It was a matter for the Tribunal to decide whether or not they accepted their evidence.
19. We also think it significant that the Appellant put before the Tribunal that the Post Office receipts for a special delivery item dated 11 June 1999.
20. It is right to say that the Appellant did not put before the Employment Tribunal as he has thought to do before us, a copy of a letter from the Royal Mail which post-dates the Tribunal hearing and encloses a photocopy of the signature of the person who actually took receipt of that package on 11 June at the Croydon Tribunal.
21. In these circumstances we say no more but that we think this point is arguable and that the case will proceed to a full hearing on that point alone. For that purpose we shall list the case for half a day, Category C.
22. There will be exchange of skeleton arguments not less than 14 days before the date fixed for the full appeal appearing, copies of those skeleton arguments to be lodged with the Employment Appeal Tribunal at the same time. There are no further directions at this stage.