United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M McDONOUGH (Representative) Messrs McDonough & Associates Employment Law Associates Linburn House 342 Kilburn High Road London NW6 2QJ
For the Respondents	MR R HAWKER (of Counsel) Employment Law Consultant 34 Primrose Drive Foxholes Hertford Herts SG13 7TG


 


MR JUSTICE LINDSAY (PRESIDENT):

1. We have before us, by way of a full hearing, the appeal of Mr W. Fatti in the matter Fatti against, firstly, Look Ahead Housing & Care Ltd, secondly, Rachel Karn, thirdly, Elaine Jackson. Today Mr McDonough has appeared for Mr Fatti, the Appellant, and Mr Hawker for either all or, at least, the First of the Respondents.
2. On 17 May 2000 Mr Fatti lodged an IT1 for racial harassment. He raised complaints going back to November 1998, on three close-typed pages. Of the twelve headings in those pages, only one, number 12, which was given the date 20 March 2000 and, possibly, part of number 11, was a reference to an event of three months or less before the presentation of the IT1. But his IT1 shows no appreciation of the risk that his complaints were out of time.
3. Mr Fatti also submitted at some stage some 20 pages of a grievance memorandum addressed to the Corporate Services Officer of the Respondent but it is not clear whether that was actually before the Employment Tribunal. We do not need to enquire whether it was or was not.
4. On 10 June 2000 the employer put in its IT3 and, amongst other things, it said this:

"(2) The Respondents contend that all of the events alleged by the Applicant to amount to race discrimination took place more than 3 months from the presentation of the originating application and that the Tribunal has no jurisdiction to hear a complaint of race discrimination.

(3) If the Tribunal finds that it does have jurisdiction to hear a complaint of race discrimination the Respondents deny race discrimination for the reasons that follow."

And then, they go through their reasons.

5. On or about 8 August 2000 there was a directions hearing in the case before the Chairman, Mr M.S. Rabin. At that point Mr Fatti was represented by a solicitor, Mr Joshua of Chamberlins. The issues to be contested in the case were identified and the first was:

"Whether either or both of the above claims are out of time pursuant to section 68 of the Race Relations Act 1976."

6. So, at a time when Mr Fatti did have professional advice, it had become quite plain that an issue was the time-bar.
7. On 21 to 23 May 2001 there was a three-day hearing at the Employment Tribunal. By this time Mr Fatti had ceased to have professional representation but was represented by a person merely described as "a friend". We take it that that friend had no professional qualifications, at any rate none relevant to the law.
8. Mr McDonough accepts that there was complete silence at the oral hearing between 21 and 23 May on the question of why there had been delay in the lodging of the IT1 and she accepts, too, that section 68(6) of the Race Relations Act 1976 was not referred to or raised.
9. On 7 June 2001 the Tribunal, which was the Tribunal at London Central under the chairmanship of Miss A.M. Lewzey, gave its decision: it was unanimous. It was that:

"(i) the Applicant's complaints prior to 10 January 2000 (paragraphs 3 to 10 of the Originating Application) are out of time under section 68 of the Race Relations Act 1976 and there is no jurisdiction for the Tribunal to consider these complaints against the First, Second and Third Respondents.

(ii) the Applicant's complaint of racial discrimination in relation to his grievance (paragraphs 11 and 12 of the Originating Application) fails."

10. The Employment Tribunal set out the issues it had to deal with and they included, as the hearing on 8 August had specified:

"Whether either or both of the above claims are out of time pursuant to section 68 of the Race Relations Act 1976."

11. The Tribunal concluded, so far as the time bar was concerned, in their paragraphs 40 and 41:

"40 It is the unanimous decision of the Tribunal that the grievance complaint on 10 January 2000 and the grievance outcome is within time and the Tribunal does have jurisdiction to consider this complaint, but all prior complaints (paragraphs 3 to 10 of the Originating Application) are out of time and do not amount to continuing acts.

41 In relation to the complaints at paragraphs 3 to 10 of the Originating Application, the Tribunal noted that no evidence has been put forward as to why there was a delay in presentation of the Originating Application and it is the unanimous decision of the Tribunal that there is no jurisdiction to consider these complaints."

It then went on, in paragraph 42:

"42 The Tribunal went on to consider the claims set out in paragraphs 3 to 10 of the Originating Application lest we are wrong on the issue of jurisdiction.

And then, in its paragraph 53, it said:

"53 If the Tribunal is wrong on the issue of jurisdiction then it would be the unanimous decision of the Tribunal that we could draw no inference of race discrimination in relation to the claims made by Mr Fatti at paragraphs 3 to 10 of his Originating Application."

12. That Decision was sent to the parties on 7 June 2001 and on 12 July a Notice of Appeal was presented which raised a number of issues. They are set out in paragraph 6(4) and (5) of the original Notice of Appeal and they say, inter alia:

"(4) It is correct to state that the Employment Tribunal found at paragraph 41 that ' … no evidence has been put forward as to why there was a delay in presentation of the Originating Application …'. However, the Appellant was not legally represented and put forward no submission regarding the question posed at section 68(7), neither he or his representative being competent to do so.

(5) The Employment Tribunal never invited the Appellant to put forward reasons for the delay so that they could properly consider the question posed at section 68(6). It is submitted that had the Appellant been provided with the opportunity to put forward explanations for the delay he may have been able to provide evidence sufficient for the Employment Tribunal to extend the time as per section 68(6). It is submitted that this amounts to an error of law."

13. The matter, as things do, went to a preliminary hearing at the Employment Appeal Tribunal and on 30 October 2001 the Employment Appeal Tribunal ruled that a point was fit to go forward to what has transpired to be this full hearing. The point was described as follows, in paragraph 4 of the judgment of that day:

"4 It is said that, given that evidence which the Tribunal appears to have overlooked, they should have extended time pursuant to Section 68(4) because it is entirely reasonable for an employee to wait until an internal disciplinary procedure has been completed before turning to an Employment Tribunal. The authority to which reference was made indirectly in the Skeleton Argument in support of that proposition was Aniagwu v London Borough of Hackney and Another [1999] IRLR 303. It appears to us that the issue as to whether the Tribunal erred in law in failing to extend time is one which is capable of serious argument and that that point should go to a Full Hearing."

14. There was some discussion at the end of the judgment that suggests that also there could go to the full hearing the question of whether the part of the decision, which we have read out as being paragraph 53, was mere obiter and also could be discussed at this full hearing. That is enough, as it seems to us, of the background.
15. Coming to the foreground, it is unfortunate that the Employment Appeal Tribunal at the preliminary hearing was not told of Robinson v The Post Office [2000] IRLR 804, which had been reported on 12 December 2000, and which has since been upheld or approved by the Court of Appeal in Apelogun-Gabriels v London Borough of Lambeth [2002] IRLR 116
16. The position that has emerged is that it is not safe for an employee to await the outcome of disciplinary process before launching an IT1. The fact that one has awaited the outcome in such a way is certainly not a sure route to an extension of time. If it is made clear that someone has awaited the outcome deliberately, or has been advised that it is safe to do so or something of that kind, then that is but one factor that can be raised on the Appellant's behalf. To that extent the case that was relied upon at the preliminary hearing – Aniagwu – is no longer sound.
17. There is, strictly speaking, as the Employment Tribunal said, no evidence as to why there was a delay in presentation of the IT1. Mr Fatti had said, in his IT1:

"Due to the Association's attitude as shown in this investigation and the conclusion of the disciplinary hearing, I have lost confidence in my employer's ability to address these issues competently or sincerely in accordance with the Policies they themselves have laid down.

It is on these grounds that I have no other alternative but to bring my case to the Industrial Tribunal. In all my efforts to pursue my complaint through the internal grievance procedures of the Association, have met with cover ups on the grounds that the Association is still institutionally racist."

18. He there seems to be saying that, when he received a copy of the Respondent's report of the investigation of his grievance on 20 March 2000, he lost confidence in the employer's ability properly to deal with the issues, at any rate, in its ability or willingness to deal with them. But he does not say that he had deliberately awaited the report before lodging his IT1, or that he thought that that was a proper or safe thing to do, or that he had been advised that it was. Mr Fatti also said, in a covering letter that he wrote to the Tribunal:

"I have made an internal grievance on the 31/01/00 against Rachel and Elaine and the report of the investigating panel is a continuation of discrimination against me. Throughout the investigation, no single witness was interviewed and Elaine Jackson was not investigated. This therefore leaves me with no alternative but to bring my case to the Industrial Tribunal."

19. Again, that cannot be said to be evidence of any reason for delaying the IT1 in respect of earlier events. Any Employment Tribunal will be very well familiar with the time bar and with the just and equitable escape route from it. It is a territory they very frequently have to enter. It could not sensibly be said of any Employment Tribunal Chairman that he or she had noticed the time bar - here section 68(2) of the Race Relations Act 1976 - but had failed to notice section 68(6). Indeed, in this case the Employment Tribunal actually cites in its Decision section 68(6) and the time bar, as we have noted, had been identified as a specific issue at the earlier decision at the directions hearing on 8 August 2000.
20. If anything shaping up to be a case for a just and equitable extension under section 68(6) had been put forward by the Applicant, well then, one would have expected the Tribunal to bear it in mind and, if necessary, raise questions as to it. But that is not to say that the Employment Tribunal, when no reason for delay is advanced and when there is no case raised under section 68(6), is under any obligation to enter the ring, as it might seem to be, and provoke an enquiry into section 68(6).
21. We have reminded ourselves of the rule which is now rule 11(1) of the Employment Tribunal Rules and we do not see that as obliging the Tribunal in this particular case to have specifically raised with Mr Fatti an issue which was not being raised by him. This is not a case where there was a lightning in-and-out Tribunal hearing. It was spread, as we have mentioned, over a number of days and Mr Fatti himself was amongst the witnesses or the persons who gave evidence. To say that he had not had the opportunity to raise the issue would not be fair to the Tribunal. If Mr Fatti was intending to rely on section 68(6) it was for him to make out a case under that broad discretionary section. The Notice of Appeal itself would seem to accept that no evidence as to the reason for delay was presented and there is no suggestion that section 68 was invoked. Indeed, the Notice of Appeal, in a passage we have already read, rather suggests that it was not.
22. Mr McDonough, therefore, is on the horns of a dilemma. If section 68 was not invoked, then, in our judgment, there was no obligation on the Tribunal to raise the subject of its own motion and no error of law in its failing to do so. If, on the other hand, section 68(6) was raised, well then, the matter was considered and there would have to be shown to be an error of law in the conclusion. We would not have been able to find an error of law in the conclusion.
23. We have some sympathy for Mr Fatti's position. It could, perhaps, have been (and we have to underline the word perhaps), had he raised the subject by way of his friend at the hearing over the days between 21 and 23 May, that it is possible that an extension of time on just and equitable grounds would have been granted. But that is to speculate. Thus, although we have some sympathy for Mr Fatti's position, we are unable to find error of law in the Tribunal's conclusion on this first time-bar point and, on this first time-bar point, therefore, we must dismiss the appeal.
24. That being so, other points such as whether the paragraph 53 was a justified conclusion or not does not arise for decision and we make no further reference to it.
25. Reverting therefore to the business which is before us, we dismiss the appeal for the reasons we have given.