At the Tribunal | |
Before
HIS HONOUR JUDGE D M LEVY QC
MR P DAWSON OBE
MR J C SHRIGLEY
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR C W WILSON Representative |
For the Respondent | MS E MELVILLE (of Counsel) Instructed by: Messrs Thompsons Solicitors The McLaren Building 35 Dale End Birmingham B4 7LF |
JUDGE D M LEVY QC
"The conclusion of the tribunal was that there was evidence that the applicant had been subject to racial discrimination by the respondents in the way that he had been treated in particular by Gary Swan and to the extent that there were specific occasions when the applicant had been otherwise subject to discriminatory action, in particular by Martin Smith in his derogatory racist jokes, the tribunal considered whether it would be appropriate to exercise its discretion to allow the applicant to proceed with those claims, notwithstanding that they had been presented outside his statutory time limit. The tribunal took account of the fact that the applicant was employed in a relatively small company with a small management structure. Although he had had confidence in the previous Works Manager up to his departure at the beginning of 1999, once Mr Swan was appointed as Works Manager and he was then faced with a management structure which otherwise comprised Martin Smith who was the son of the Managing Director, the tribunal accepted it would have been extremely difficult for the applicant to have been able to pursue a complaint of racial discrimination, either through his immediate manager or through the Managing Director, with any degree of confidence that it would have been dealt with satisfactorily. His decision therefore to refrain from pursuing the matter formally until he had been dismissed in the tribunal's view justified the exercise of their discretion to [allow] the claim to proceed and to be included in the assessment of any compensation."
"3. The tribunal heard evidence that the applicant had found it difficult to deal with the issue"
[of racial discrimination, with which is what they were dealing]
"He had wanted to keep his job and he had been concerned that, if he had raised a complaint, it would affect his working relationship with his manager. The tribunal took into account the fact that the management structure was one where the Managing Director was a friend of Mr Swan, and indeed was the father of the other manager against who there was a finding of discrimination.
4. Although the applicant was able to discuss his concerns with his family and also with a doctor and with a member of his church, this was an attempt to try and defuse the strong emotions which Mr Swan's behaviour had aroused, rather than to engage in any confrontation with Mr Swan.
5. The position with regard to Mr Swan was one that remained a problem up to the time of the applicant's dismissal by reason of redundancy. The position with regard to Martin Smith was that he had, over a period of time, engaged in offensive behaviour which was also clearly quite public. On seeing the applicant Mr Smith had reacted to him as though he was a potential mugger, making a comment to that effect, and holding up his hands. The office was not enclosed."
The Decision then gives other examples of what had happened in the workplace.
"….because of a lack of general interest within the workforce in such issues there is no elected internal Union Shop Steward and as I always continued my membership of that Union [the BPIF] I undertook to carry out the collection of subscriptions and any Union negotiations when they were necessary or appropriate".
Later on in his statement he referred to:
"…….my capacity as unofficial Shop Steward for the company".
An Employment Tribunal is always reluctant to extend time limits, except where it is absolutely fair and equitable to do so. In this case, we do consider that the Tribunal, after a relatively long hearing in a careful judgment, gave Reasons why it had extended time and were fully entitled to so to do. We take into account, as did the panel hearing the ex parte application of the Appeal at the interlocutory hearing, there may have been other things which Mr Harvey could have done. However, given the factors of this case, which the Tribunal considered, we, having looked at the situation in the round, conclude that the Decision was one which the Tribunal could properly have reached.
"In finding that it was not just and equitable to extend the time limit for presenting the applicant's race discrimination complaint, the Employment Tribunal erred in failing to consider why the complaint was not presented earlier."
The Respondent's failure to present the complaint earlier was considered by the Tribunal below in the Quantum Hearing. Having considered why the failure occurred, in our judgment it was entitled to exercise its discretion as it did. It may be that other Tribunals would not have exercised their discretion in the same way, but this is a matter which if the discretion has been exercised in a way which is not perverse, then this Tribunal cannot interfere with it. We do not consider the Decision of the Tribunal to have been perverse, even if some of us might have come to a different decision, none of this panel would have done. It is not a decision with which we are entitled to interfere.
"The approach of the appellate court
26 where permission is granted to appeal on the grounds that the judgment does not contain adequate reasons, the appellate court should first review the judgment in the context of the material evidence and submissions of the trial, in order to determine whether, when all these are considered, it is apparent why the Judge reached the decision that he did. If satisfied that the reason is apparent and that it is a valid basis for the judgment, the appeal will be dismissed. This was the approach adopted by this Court, in the light of Flannery in Ludlow -v-National Power PLC 17 November 2000 (unreported). If despite this exercise the reason for the decision is not apparent, then the appeal court would have to decide whether itself to proceed to a rehearing, or to direct a new trial."