United Kingdom Employment Appeal Tribunal

MR RECORDER LANGSTAFF QC

1. This is an Appeal from the Employment Tribunal sitting at Brighton whose reasons were given on 25 April 2001. This followed 13 days of hearing which began on 17 January 2000 and ended prior to the decision on 28 March 2001. Those hearings were in respect of complaints made by Mrs Fernandez as employee that she had been unfairly dismissed by her employer, had been wrongfully dismissed, that she was owed unpaid wages in respect of overtime and, material to this Appeal, that she had been discriminated against upon the ground of her sex and upon the ground of her race.
2. This Appeal concerns only those last 2 complaints. The Appellant submitted her originating application on 24 February 1999. Accordingly, the period within which the matters complained about occurred should have ended no earlier than 25 November 1998. That is because of the operation on the one hand of Section 76 of the Sex Discrimination Act 1975 and, in similar terms Section 68 of the Race Relations Act 1976. Section 76 of the 1975 Act provides as follows:

"An Employment Tribunal shall not consider a complaint under Section 63 unless it is presented to the Tribunal before the end of -

(a) the period of three months beginning when the act complained of was done.

And then there are further immaterial provisions until one gets to Sub-section 5 which provides:

"That a Court or Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers it just and equitable to do so."

3. Section 68 of the Race Relations Act 1976 provides in Sub-section 1:

"An Employment Tribunal shall not consider a complaint under Section 54 unless it is presented to the Tribunal before the end of -

(a) the period of three months beginning when the act complained of was done."

And then by Sub-section 6 of the intervening provisions being immaterial to this Appeal:

"A Court or Tribunal may nevertheless consider any such complaint claimed or application which is out of time if, in all the circumstance of the case, it considers that it is just and equitable to do so."

4. Accordingly, in order to have jurisdiction to consider the complaints made by Mrs Fernandez, those complaints had to be presented before the end of the period of three months beginning when the act complained of was done unless the Tribunal chose to exercise its discretion under respectively Section 76 Sub-section 5 or Section 68 Sub-section 6 to extend that period.
5. The decision of the Employment Tribunal deals with the question of when the several acts complained of occurred. At paragraph 4 it records that on the second day of the hearing, which was 18 January 2000, Mrs Fernandez's Counsel stated that first eight allegations then made were all out of time but formed a continuing act of discrimination, then went to say this:

"She then expressly confirmed that the Applicant was not applying for leave in respect of the "just and equitable" principle as the Applicant would be relying on the "continuing act" principle."

6. At paragraph 7 the Tribunal record that on the fifth day of the hearing Mrs Fernandez conceded in cross-examination that all sex and race discrimination allegations against a Mr Clements had arisen more than three months before the date of the Originating Application and later that day was to repeat that position.
7. In paragraph 12, the Tribunal records that in submissions dated 12 July 2000 on behalf of the employer, the employer's Counsel noted that the events which were complained of should be within the three months prior to the claim and that no application to extend that period had been made. This was by now some year and a bit after the originating application had been submitted.
8. At paragraph 13, the Tribunal say that at a late stage of the last day's hearing, which is 28 March 2001 and in answer to the Respondent's Counsel and the Tribunal, Counsel for the Applicant expressly stated that no application was to be made on behalf of the Applicant for an extension of time on the "just and equitable" principle. Furthermore, some time later, Counsel for the Applicant said that it was agreed that one act of discrimination must be within the relevant three months period of time in order for her client to rely on all earlier allegations of discrimination on the "continuing act" principle. As a result, because the Applicant resigned on 30 October 1998 Counsel on her behalf accepted that there was no act within the time-limit in that respect.
9. At paragraph 14 of its decision, the Employment Tribunal continued:

"Thereupon, Counsel for the Applicant applied for leave under the "just and equitable" principle to extend the time for filing the Originating Application regarding the last act of sex and race discrimination on 30 October 1998 of abusive behaviour as in schedule (A2). She added that her client's position was that, if leave was not granted, the Tribunal would not have jurisdiction to consider and decide the acts of alleged sex and race discrimination. (I miss out the intervening words which I will come back to later in this judgment and continue further within paragraph 14). The Applicant's Counsel then explained that it had been a failure on the part of the Applicant's legal advisers to appreciate that the last act of discrimination was not 27 November 1998 (which is the date of expiration of the one month's notice given by Mrs Fernandez to the Respondent when she resigned from her employment on 30 October 1998) but that the last act was on 30 October 1998, the alleged act of abusive behaviour."

10. Accordingly, the Employment Tribunal were in the position of having heard a case on the footing that they would only have jurisdiction if at least one act of sex or race discrimination was within three months of the date which the Originating Application was submitted: that is a date on and after 25 November 1998. They were now told that there was no such act within that time period. There had not been, prior to 28 March 2001, any application made to extend the time period on the basis that it was "just and equitable". What had been relied upon was the continuing act principle which was now conceded not to be any reason for conferring jurisdiction by express concession of Mrs Fernandez's Counsel.
11. Nonetheless, the Tribunal considered whether or not it was "just and equitable" to extend the time to permit the Tribunal to consider and rule upon the complaints made by Mrs Fernandez. They directed themselves in accordance first with statute as they were bound to do and secondly had regard to the gloss put upon that statute by the case of British Coal Corporation v Keeble and Others [1977] IRLR 336 at which in essence suggested that those factors appropriate to determining issues on limitation in common law actions in respect of personal injury (that is those matters referred to in Section 33 of the Limitation Act 1980) would be of assistance to a Tribunal in answering of whether it was "just and equitable" to extend time.
12. At paragraph 19 the Tribunal began with these words:

"Having regard to all the circumstances of the case, in accordance with the Keeble case the Tribunal does not consider it just and equitable to grant an extension of time to the Applicant for filing her Originating Application."

The Tribunal then proceeded to give nine reasons.

13. The complaint is made before us by Mrs Fernandez in person. She told us at the outset that she had been unable to fund representation before us and asked us therefore to have regard to a letter written on her behalf by her former solicitors. That letter raises a number of points. What is relevant to this Appeal as we see it is that it submitted that the Tribunal did not fairly exercise discretion in deciding whether to extend time. The letter asks us to say that the Tribunal must have regard to all circumstances of the case including the Applicant's state of mind and reasons for delaying and the extent to which the Application was out of time. In the next paragraph it goes on to say this:

"The Applicant in this matter was and still is of very poor health following her miscarriage and has undergone several operations since. This contributed to her delay in seeking legal advice. It would appear that these factors have not been taken into consideration when the Tribunal made its decision."

14. We have to decide whether or not there is any arguable case that this Employment Tribunal approached the exercise of its discretion on some wrong basis: that is that they took into account some matter which they should not have taken into account, failed to take into account something which they should have taken into account or reached a decision which was plainly and obviously so unreasonable that it cannot stand.
15. The only basis on which the letter is suggested that the exercise of discretion was wrong was that it failed to take into account her state of health. Before us today she has made additional complaints. She has told us that the Tribunal indicated prejudice by the Chairman against her from the start of the hearing. That she had been falsely accused by the Tribunal (in particular the suggestion being made that a qualification which she had from the well-known and reputable institution of ACCA was one which did not exist and that when this error was pointed out to the Chairman by the production of her certificate there was no apology forthcoming.) She has told us that she felt she was treated as though she were a criminal.
16. Because none of those allegations have ever been put into any notice of appeal, they are matters which we cannot at this stage now consider and therefore we cannot deal with the allegations of bias. We are therefore left with the other substantive point which Mrs Fernandez made which is that she was so unwell that this should have been taken into account by the Tribunal and was not. This is where I return to paragraph 14 of the decision of the Employment Tribunal. The words which I have not thus far cited from that paragraph are these:

"Counsel for the Applicant pointed out that the Applicant had had a miscarriage in November 1998 which would have prevented Mrs Fernandez from giving the matter her attention. She referred to a letter dated 29 July 1999 from the Applicant's General Practitioner at page 155 of the agreed bundle of documents which confirmed that Mrs Fernandez had miscarried on 12 November 1998 and took one week's sick leave thereafter."

17. The Tribunal's record of the exercise of his discretion began with the words:

"Having regard to all the circumstances of the case"

Since in paragraph 14 there had been express reference to the state of health and the illness which Mrs Fernandez has suffered we think that by those words they must have included a reference to her state of health. It would have been surprising if they did not have that in mind because as Mrs Fernandez herself has told us today the hearing was subject to delay because she had appointments within the NHS for treatment which she had quite reasonably to attend and that reason was therefore known to the Tribunal as a reason for postponing or delaying part at any rate of the hearing.

18. We, therefore, are faced with a situation in which the Employment Tribunal has appeared to exercise its discretion upon the basis that they took all the circumstances of the case into account. They have recited amongst the facts, which they have related, one of those circumstances, namely the state of health of Mrs Fernandez. We do not think therefore that it can properly be argued that the Tribunal were wrong in law by failing to take into this account when it appears on the face of their decision that they have in fact done so. Since our powers are limited to a decision as to whether or not the Tribunal has exercised its discretion on a wrong basis and since we cannot say that they have done so it follows that this Appeal must be dismissed.

(Mrs Fernandez, you have the right to proceed further should you wish to do so to ask the Court of Appeal to give leave. So far as we are concerned we refuse any leave to appeal against our Decision. Thank you very much)