United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR K UNDERWOOD (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE CHARLES: This appeal comes before us today by way of a preliminary hearing pursuant to our Practice Direction. Our task is therefore to consider whether the appeal raises any reasonably arguable point of law.

1. The parties are a Mr Lucey who is the Applicant below and the Appellant before us. The Respondents are two companies, E.C. Sames & Co Ltd, who were and indeed are Mr Lucey's employers, and National Westminster Bank Plc, who occupied the premises at which Mr Lucey was working.
2. The appeal is against a decision of an Employment Tribunal sitting at London (North) on 19 June 2000. The Extended Reasons for that decision were sent to the parties on 22 June 2000. The decision was that the claim was presented outside the time limit set out in section 68 of the Race Relations Act 1976 and that therefore the claim is dismissed.
3. In reaching that decision the Employment Tribunal considered whether it would be just and equitable to extend time. They expressly refer to section 68(6) of the Race Relations Act 1976 and the Employment Tribunal decided that they should not so extend time.
4. In reaching their overall decision the Employment Tribunal made a finding that the acts complained of occurred in October/November 1999 and particularly on 8 November 1999, when the Applicant, as they say, was suspended and offered alternative employment and it is on the basis of that finding that they concluded that the claim was out of time.
5. The Extended Reasons show that an argument put before the Employment Tribunal in support of the application to extend time was that until February 2000 the representative of Mr Lucey did not have sufficient information to enable a claim to be brought and that it was in that month that he obtained such information during a telephone conversation with a Mr Nicholls. This assertion is contrary to the statement setting out the details of Mr Lucey's claim which is attached to his IT1, in particular paragraph 11 thereof but also paragraph 12. Paragraphs 11 and 12 read:

"11 On 23^rd November 1999, Mr McKay of EC Sames and Co Ltd visits Mr Lucey, at his home, whilst he (Mr Lucey) is on sick leave. Mr Lucey was not at home but received a message to visit Mr McKay at his home for the meeting. During this meeting Mr McKay

(a) asks Mr Lucey to drop his claim for racial discrimination

(b) informs Mr Lucey that he is likely to be disciplined and sacked

(c) said that Mr Molay has been told by National Westminster Bank that they will terminate the contract with EC Sames and Co Ltd, if a claim of racial discrimination is pursued against the bank

12 In January 2000, Sutton Racial Equality Council issues an RR65 Questionnaire form to both National Westminster Bank and EC Sames and Co Ltd."

The conversation that was relied on before the Employment Tribunal to seek an extension of time is referred to in paragraph 13 of the IT1 which reads:

"13 In the middle of February 2000, Mr T Nicholls rings Mr Lucey. In this conversation Mr T Nicholls tells Mr Lucey, that during his lunchtime drinking session on 29^th October 1999 with Mr M. Spalding, National Westminster Bank, that Mr Spalding said not to worry let the Irishman take the blame."

6. The Originating Application is dated 31 March 2000 and was lodged on 3 April. So as the Employment Tribunal identified there was delay following the conversation in February. Paragraph 11 of the IT1 is inconsistent with the factual assertion made before the Employment Tribunal because on Mr Lucey's own case it makes clear that he is making a claim of racial discrimination by 23 November 1999. The questionnaires that follow also show that such a claim is envisaged and we were told today, and for present purposes accept, that the First Respondent did not answer that questionnaire, but the Second Respondent did after seeking an extension of time for doing so. The IT1 continues in paragraphs 14 and 15 in the following terms:

"14 On 10^th March 2000, National Westminster Bank write to Sutton Racial Equality Council, informing them they do not want Mr Lucey back onto the Fenchurch Exchange site. This is in spite of the knowledge that Mr T Nicholls was solely responsible for the theft of carpet tiles.

15 On 13^th March Mr Lucey receives a letter from EC Sames and Co Ltd inviting him to another disciplinary hearing. This is in spite of the knowledge that Mr T Nicolls was solely responsible for the theft of carpet tiles. In addition, Mr Lucey is informed that if he is not well enough to attend the disciplinary hearing at EC Sames and Co Ltd, they can hold the disciplinary hearing at his home."

7. In their Answer EC Sames & Co Ltd refer to that letter of 13 March and make the assertion that it is incapable of being an act of race discrimination. In their Answer National Westminster Bank do not refer to the letter of 10 March, but it has been shown to us today. It is a letter to Mr Rose at the Sutton Racial Equality Council, and it is in the following terms:

"I refer to our conversation on 1 March 2000. After reviewing the responses of National Westminster Bank plc ('NatWest') to the RR65 Questionnaire, you suggested that a pragmatic solution to the situation regarding Mr Lucey would be to allow him to return to work at Fenchurch Exchange.

I have presented this option to NatWest Group Property, and am instructed that they are not prepared to allow Mr Lucey to return to work on NatWest sites.

I am advised that the facts upon which this decision is based are that Mr Lucey did not reveal all the details of the incident of which he was aware when he was called upon to do so in the first instance. Other employees and employees of contractors on the site are aware of the incident and are likely to be influenced by the NatWest response to this incident. NatWest, being a financial institution, places great reliance on the relationship of trust and confidence which it builds with its staff and contractors. It insists on high standards of behaviour among its own staff and applies disciplinary measures when these are not met. It applies similar standards to the employees of its contractors. NatWest is not responsible for providing employment for Mr Lucey. E C Sames has always been, and remains, free to employ Mr Lucey at any other site.

NatWest is confident that Mr Lucey was treated no differently from any other person would have been in the same circumstances as a result of his colour, race, nationality or ethnic or national origin.

I look forward to hearing from you when you have reached a conclusion as to how you intend to proceed in this matter."

8. I will not read out the letter of 13 March from EC Sames & Co Ltd, which we have also seen, as the IT1 indicates that what EC Sames & Co Ltd are essentially seeking to do by that letter is to convene the disciplinary hearing. In paragraph 10 of their response to the claim the First Respondent, EC Sames & Co Ltd described that letter and also set out what they say the likely consequence of that hearing would be.
9. Before us today Mr Lucey has had the advantage of being represented by an ELAAS representative. The first argument advanced on his behalf, by that representative, was that it was reasonably arguable that, albeit that the Employment Tribunal expressly refer to section 68(6), they were in fact applying the test under the Employment Rights Act. We do not accept that that is reasonably arguable. It is apparent to us that the Tribunal directed their minds to the correct test.
10. The next arguments that were advanced can, in general terms, be classified as "Meek arguments", namely that an adequate explanation for the decision is not given in the Extended Reasons and further or alternatively an assertion that relevant factors have not been taken into account in the exercise of the discretion because they are not mentioned in the Extended Reasons.
11. In that respect it was pointed out to us that Mr Lucey's position was that he had sought advice from somebody who, with hindsight, he realises was not an appropriate person to advise him and that person had missed a time limit. Mr Lucey also points to the fact that at the time he was not well. He adds that, personally, he had no knowledge of the relevant time limits. Additionally and to our minds potentially more compellingly, counsel for Mr Lucey referred to the fact that the questionnaire had been sent to both Respondents within the relevant statutory time limit and relevant matters were under investigation during that time and, therefore, he submitted that there is at least an argument that there was no prejudice suffered by the Respondents in preparing their case in defence of Mr Lucey's claim. Counsel also pointed out that the Extended Reasons make no reference to the balancing act the Employment Tribunal carried out and it is correct to say that they do not.
12. Another matter that was raised during the oral hearing by the representative of ELAAS was firstly a submission that there was a continuing act. We do not accept that that is reasonably arguable.
13. However, having seen the letter of 10 March, it seems to us that that does give rise to an argument that could reasonably be put that there was a fresh decision made in March not to return Mr Lucey to the Fenchurch Street site and that was not simply a confirmation of an earlier decision. It followed Mr Nicholl's admission that he had been solely responsible for the theft.
14. At this stage all we have to consider is whether a point or points are raised that are reasonably arguable. It seems to us that there is a reasonably arguable point that Mr Lucey was complaining of matters which took place in March, namely a decision by the National Westminster Bank and as a consequence of that a failure by his employers to send him back to the site. At this stage we say no more about that point save to add (for the avoidance of doubt) that although our reasoning has been based primarily on the letter of 10 March we are of the view that arguments can also be based on the letter of 13 March which follows it from the First Respondent.
15. Having reached that conclusion it seems to us that it would also be right to allow this appeal to proceed on the additional grounds which I have referred to above as "Meek grounds" and thus grounds that the Tribunal have either not, or not shown by their Extended Reasons that they have, taken into account relevant points in the balancing act required by s. 68(6). In reaching this conclusion we are mindful of the fact that as is made clear by Hutchison v Westward Television Ltd [1977] IRLR 69, Mr Lucey has a difficult and uphill task in challenging an exercise of the discretion not to extend time by an Employment Tribunal because it is a wide discretion.
16. Accordingly, we propose to allow this appeal to proceed to a full hearing on the two grounds mentioned above which means that Mr Lucey will have to amend his Notice of Appeal: that amendment is to be filed within 14 days.
17. We give the Respondents liberty to apply to challenge that amendment, at the substantive hearing of this appeal, if they wish to say that any such amendment should not be (or have been) added to the Notice of Appeal.
18. We give this case a time estimate of half a day, and Category B.
19. A final word. We wish to make clear to Mr Lucey that we are not indicating that at the end of the day he is going to meet with success on this appeal or in these proceedings if they are heard on their merits. The matters with which we are concerned are confined exclusively to the issue whether or not there are arguable points of law relating to the decision of the Employment Tribunal that the proceedings were brought out of time and time for bringing them should not be extended.