United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR THOMAS KIBLING (of Counsel) Instructed by: Messrs Michael Scott & Co 27 Britannia Street London WCIX 9JP
For the Respondent	MR SINCLAIR CRAMSIE (of counsel) Instructed by: Messrs Argyles, Stoneham & Burstows 12 Mill Street Maidstone Kent ME15 6XU


 


JUDGE WILCOX

1. This is an appeal from the decision of the Employment Tribunal of London (North) on 10 May 1999. The decision of the Employment Tribunal was that the case was presented out of time and it was not just and equitable to extend the time and therefore the Employment Tribunal had no jurisdiction to consider the complaint. The matter was dealt with as a preliminary point. It was a full Tribunal we observed presided over by Chairman with two lay members who were part of the Industrial Jury who were able to see and hear witnesses and to appraise the evidence and find the facts.
2. The Applicant Mr Shahrokni complains of racial discrimination. It arises out of his complaint which in his original IT1 is a complaint that he identified as having occurred on 15 July. He gave evidence before the Employment Tribunal relating to his non-appointment to a full time post in Mathematics and Physics by the first Respondent following an interview on 15 July.
3. His Originating Application was presented to the Employment Tribunal by fax on 15 October 1998 and the legend, which appears upon the fax showed that it was transmitted between 2.27 am and 2.44 am. If his complaint or to use perhaps the better term in this context, if his cause of action was complete by 15 July, he was out of time by the time he transmitted his Originating Application. It would be then that the Tribunal would have to consider under Section 68(6) of the Race Relations Act, whether there were circumstances in the case that were just and equitable to extend the time to the presentation of his complaint.
4. It appears to us the first task that presents itself to a Tribunal looking at a question of jurisdiction in a case such as this is to enquire into the question as to when the cause of action accrued. There are a number of cases that have been cited to us, by both the Appellant and the Respondent in this relation, out of deference to the helpful submissions of Counsel. I will make reference to them albeit briefly Aniagwu –v- London Borough of Hackney (1999) IRLR 305, Jones –v-v Governing Body of Burdett Coutts School (1998) IRLR 521, the case of Clarke (1992) ICR 312 and Lupetti (1984) ICR 348.
5. Those are all individual cases where the Court or Tribunal sought to identify when the cause of action accrued. In some cases they took the view that it was when a decision was not only communicated but also received. They are all examples of the task that the Tribunal must consider in a jurisdiction question such as this. We look to the finding of the Tribunal in relation to when the act complained of occurred. When in fact the cause of action accrued. We take the view in this case, informed by the approach of the cases that I briefly made reference to, that the cause of action accrues in a discrimination case where conduct may be directed at or received by an Appellant or employee is when he or she has knowledge of that discriminatory act or omission relied on.
6. In this case therefore if there was a discriminatory decision made on 15 July 1998 there could be no detriment to the Appellant until he had knowledge of that discrimination. We therefore hold that in this case that the proper test is to ask, was there a cause of action on 15 July, that is the accrued cause of action constituting where both the act or omission that constitutes discrimination and knowledge of that act or omission by the Appellant?
7. The Tribunal received evidence in relation to these matters. Firstly, they received the IT1, paragraph 9: -

"If your complaint is NOT about dismissal, please give the date when the matter you are complaining about took place. 15 July 1998."

IT1, Box 11: -

"On 15 July 1998, I was interviewed for the position of full-time Physics/Maths lecturer at Kingsway College and was turned down. I believe I was discriminated against in breach of the Race Relations Act 1976."

8. The focus there is on 15 July 1998. We have had our attention drawn to the oral evidence that he gave to the Tribunal which is in the note at page 55 of the bundle before us. There are two passages where he characterises his complaint: -

"I am complaining about not being appointed to full-time post in maths and physics.

"Interview 15 July 1998. I was notified not appointed by telephone. Message on my answerphone subsequent to interview within a couple of days."

Then in the course of cross-examination he speaks of what he was doing on 15 October

"I suspected it could be out of time and I always try to work well within time."

9. So far as other evidential material is concerned there is the response by the Respondent and the passage at page 70. At paragraph 26 is in these terms: -

"It is denied that the Applicant has correctly stated events which occurred after the interview on 15 July 1998. Anna Openshaw telephoned the Applicant as soon as a decision was made. As the Candidates were internal, it is normal to inform them by telephone as soon as possible. Anna Openshaw stated that the Applicant had not been successful but that, if he wanted feed-back, he should contact John Nolan."

10. It has been firmly and persuasively submitted by Mr Kibling, whilst this may be evidential material it is written by solicitors. It is a compilation of evidence, it is weak hearsay at its highest. We accept that; of course it has never been tested in cross-examination.
11. Their findings in the extended reasons set out the issue for the Tribunal. Mr Sharokni accepts that the act complained of took place on 15 July 1998. That finding of fact is on the evidence that they had before them. They heard his oral evidence, and they saw him cross-examined. They were able as an Industrial Jury to give to the evidence the weight that they thought appropriate. They find that he inserted 15^th July as the date in box 9 of his Originating Application. They would have been aware of his qualification in evidence as to when he received the notification of the decision. That would have been a matter that would have been covered by an experienced Tribunal of fact. They would have noted as they found that he is no stranger to the Employment Tribunal and that he has a degree of experience in coming to matters such as this. They came to the conclusion of paragraph 6 that Mr Sharokni was well aware of the Employment Tribunal proceedings and time limits and it is implicit in their findings, we conclude that they accepted the evidence that Mr Sharokni knew of the decision on 15 July.
12. They went on to consider very properly the question of the exercise of discretion under Section 68(6). There is no attack upon the exercise of discretion there and we cannot see that there is in this case any error of law that is made out, neither can we see that looking at the findings that relate to jurisdiction that there was a perverse finding. There is no evidence that the Tribunal did not consider that the cause of action accrued on the 15 July 1998. Criticism has been made of the Tribunal that on an important issue such as jurisdiction they did not assist the Appellant and did not in fact warn him as to his evidential concession and the manner in which he gave his evidence as to the events of the 15 July and the receipt of the knowledge of the decision. Of course it is incumbent upon every Tribunal who are masters of their own procedure to give such assistance as is properly warranted in all the circumstances. There are a number of cases that have been cited to us that underline that duty and we accept that as a proposition. It is clear that this Tribunal did in fact address its mind to the questions of the need for assistance at their finding in 5a, Mr Sharokni is no stranger to the Employment Tribunal and the observation that he has presented 11 Originating Applications since 1990 all claiming racial discrimination.
13. One takes litigants as one finds them as a Tribunal. Some have difficulties of language communication, some are more sophisticated than others, some have more experience than others, and they are all matters for the Tribunal. We see nothing in the complaint here that the Appellant was not assisted upon this question of jurisdiction as he probably should have been.
14. We dismiss this appeal.

EAT/992/99

15. This is an appeal against a decision of the Employment Tribunal sitting at London (North) on 14 June 1999. It was a fully constituted Tribunal with Lay Members and a Chairman because they had to consider matters of fact relating to a preliminary point, identified by the Tribunal arising out of an Originating Application by the Appellant complaining of the Respondents failure to offer him part-time work, and characterising that as conduct which was racially discriminatory.
16. What the Tribunal had to do was determine as a preliminary point for jurisdiction a mixed question of fact and law.
17. It had to look at the alleged acts and assuming them to be right decide when they in fact occurred. The burden in a jurisdiction matter is upon the Appellant. What happened in this case is that the Appellant complains that he was never given the opportunity of developing his case because the Tribunal considered complicated matters of fact and matters that touch concern the running of the employers business. There are many matters that are in the peculiar knowledge of an employer, records, notifications of vacancies and the like.
18. In the normal court of events in a full hearing an Applicant may go before a Tribunal make application for discovery as to certain aspects of the case. In so doing he maybe afforded access to material that would contradict his case confirm his case or enable the Respondents case to be tested. It maybe (not in all cases) part of the proper armoury that should be afforded to an Appellant.
19. The terms of the permission that was given for to pursue this appeal relates to amended ground 6.

"The Tribunal erred in law concluding that there was no evidence that the act complained of was in August 1998. Such evidence would have been with the knowledge of the Respondents since the process of disclosure had not taken place between the parties there was accordingly no basis on which the Tribunal was entitled to conclude that the Applicant not discharged the burden of proof."

20. The facts that are recited as found in the extended reasons, entitled the Tribunal to conclude as they did. But we would have been left with the strong reservation that the Appellant in presenting his case albeit as an informed layman before the Tribunal, has not been treated fairly.
21. As an Appeal Tribunal we must not substitute our view for that of a Tribunal. But when one come to essential matters like jurisdiction we bear in mind that he was not represented. The Appellant could have asked for disclosure but did not and it could be said his failure to do so is his hard luck.
22. We would be reluctant to be seen to be imposing upon any Tribunal sitting at first instance an obligation to give complicated interlocutory directions. But we feel that in this case, not only would it have been prudent, in neglecting to do so the Tribunal was in error.
23. The grounds of appeal rehearse the failure to give disclosure; they make reference to the basis upon which the Tribunal did in fact conclude the Applicant had not discharged the burden of proof. We think that the objection that has been argued before us by the Appellant is sufficiently within ground 6 that we can in the exceptional circumstances of this case conclude that the Tribunal erred in law.
24. It is evident that the Tribunal considered very many matters that went beyond their strict purview as to the question of jurisdiction. They seem to have embarked upon matters better suited to a Tribunal considering a full merits hearing. The extent of the enquiry into matters that are in our judgment not strictly necessary and arguably irrelevant. That has reinforced our view that this matter must be remitted to a fresh Tribunal to consider the question of jurisdiction. That Tribunal to consider the question of jurisdiction following a directions hearing in which it would be prudent to consider a limited discovery, matters limited to the issues that are to be considered as falling within the jurisdiction of the Tribunal.