United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P DOWNEY (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR RECORDER BURKE QC

1. This is the preliminary hearing of Mrs Anyaegbuna's appeal against the Decision of the Employment Tribunal sitting at London Central, chaired by Mr Menon and sent to the parties with Extended Reasons on 16 October of last year. By that Decision, the Employment Tribunal decided that it did not have jurisdiction to consider Mrs Anyaegbuna's claims against her ex-employers for racial discrimination, unfair dismissal and breach of contract because her complaints had been presented too late, and in the case of her unfair dismissal complaint, she did not have the requisite twelve months continuous employment.
2. Mrs Anyaegbuna was employed by the Respondent hotel as an Evening Room Attendant. Her employment began on 2 October 2000 and ended on 22 December. Her Originating Application by which she raised her complaints was dated by her 12 July of last year and was received by the Tribunal on 13 July. Thus, it appeared that, on the face of it, her complaint of racial discrimination was presented outside the three months primary time limit provided by section 68 of the Race Relations Act 1976. Her complaints related to conduct on the employer's part during her employment up to the date of dismissal.
3. Similarly her unfair dismissal claim was, on the face of it, outside the three month time limit provided by section 111 of the 1996 Act, and her breach of contract claim was outside the three months time limit from the date of the termination of the contract of employment provided by Article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. Furthermore, it being clear that Mrs Anyaegbuna had not been continuously employed for a period of one year, it appeared on the face of it that the right not to be unfairly dismissed did not arise in her case.
4. In a letter which accompanied her Originating Application, Mrs Anyaegbuna set out, as her reasons for delay, the facts that she had been going through a period of stress and psychological distress as a result of the effect of the employer's treatment of her, coupled with the effect upon her of her brother's tragic death, in circumstances which we need not go into, in Nigeria in February 2001. She said that these, together, had rendered it impossible for her to come to terms with her situation. She also said that she had difficulty in finding out how to initiate proceedings.
5. At the hearing before the Tribunal, Mrs Anyaegbuna, who was not represented, elaborated on the reasons for her delay. She told the Tribunal how she had been depressed and subject to stress because of the two blows which she found unsustainable, and which we have briefly described. She explained that she did not know about Employment Tribunals or about the law which enabled her to seek redress, did not seek advice, was not going out, and got no advice until in May of last year, when, as a result of a friend telling her about it she went to a Law Centre and ultimately obtained an Originating Application form.
6. The Tribunal had to evaluate her evidence and all the circumstances. They said that they gave full consideration to her state of depression and to her stress, following the tragic circumstances of her brother's death and following her dismissal. They concluded that it was reasonably practicable for Mrs Anyaegbuna to have made her unfair dismissal and contract claims within three months and that it would not be just and equitable to extend the time limit for her complaint of racial discrimination. They also found that, in any event, there was no jurisdiction to hear her unfair dismissal because she did not have the requisite one year's employment.
7. Today Mrs Anyaegbuna at this hearing has been represented by Mr Downey under the ELAAS scheme, and we are grateful to him for the careful way he has put her case before us. He has very fairly said that he cannot challenge the finding that she did not have one year's continuous employment, and that therefore he cannot put forward any arguable grounds for appealing in relation to the unfair dismissal claim. He has focused on the racial discrimination complaint and has rightly drawn our attention to the distinction between the test which applies in the case of unfair dismissal in a contract claim, namely whether or not it was reasonably practicable to present the claim within the time limit, and the test which applies in a discrimination claim, which is whether it is just and equitable to extend the time limit.
8. Mr Downey submits firstly, that the Tribunal failed to distinguish between these two tests and, in effect, applied the reasonable practicability test rather than the just and equitable test to the discrimination claim. Secondly he submits that Tribunal failed to take into account all relevant factors in exercising their discretion under section 68 of the Race Relations Act 1976 and thirdly, that the Tribunal came to a perverse conclusion.
9. We do not think that there is any arguable ground of appeal in this case. The Tribunal plainly directed themselves, in paragraph 2 of its Reasons, to the difference between the provisions of section 68 of the Race Relations Act 1976 on the one hand, and the provisions of section 111 of the Employment Rights Act 1996, and the parallel provisions of the 1994 Order, on the other hand.
10. Within paragraph 4, where the Tribunal set out the Reasons for their Decision, they again clearly distinguish between the test of reasonable practicability which they applied to her unfair dismissal and breach of contract claim, and the test of just and equitable in the context of which they considered the race discrimination complaint. We do not regard it as at all arguable that the Tribunal failed to apply the right test.
11. Nor, in our judgment, is it arguable that the Tribunal failed to take into consideration relevant facts or matters in the exercise of its discretion. The Tribunal set out in their Decision all the relevant circumstances, admittedly briefly, but it was not necessary as a matter of law for it to set them out more fully. They set them out sufficiently for the parties to know why Mrs Anyaegbuna had lost and why the employers had won on these issues. They referred expressly to the fact that Mrs Anyaegbuna had been under stress in the circumstances which we have described. They referred expressly to her ignorance of employment rights, and the difficulties that she had in getting advice on those rights. They concluded as a matter of fact that Mrs Anyaegbuna could have obtained advice about her employment rights earlier than she did, having regard to all the relevant considerations.
12. Nor do we think that that conclusion is one which can be argued to be perverse. It was one which it was open to the Tribunal to reach on the facts, it was a finding of fact which it was for them to reach; and they have reached a decision on the facts which in our judgment cannot now arguably be attacked by way of appeal.
13. For those reasons this appeal in relation to the racial discrimination claim is dismissed, as must be, on Mr Downey's concession, to the unfair dismissal claim.
14. There remains the breach of contract claim. Mr Downey has submitted, though he has put it carefully and with restraint in the circumstances, that it may be said that the Tribunal again, failed to take into account properly the difficulties which Mrs Anyaegbuna was under, and have arrived at the conclusion that she could have obtained advice about her employment rights earlier without justification. We see no basis for an attack on that finding or on the conclusion that the contract claim was presented out of time and that it was reasonably practicable for it to have been presented in time. In those circumstances, the appeal in relation to the breach of contract claim also must fail. Thus the appeal is dismissed.