United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS S WILLIS (Representative) Cheshire Halton & Warrington Racial Equality Council 92 Watergate Street Chester CH1 2LF
For the Respondent	MR A WEIR (Representative) Northgate Employer Services Unit 10, Newhallhey Business Centre Newhallhey Road Rawtenstall Rossendale


 


SUMMARY

JURISDICTIONAL POINTS: Extension of time: just and equitable

In considering whether it is just and equitable to exercise its discretion under Section 68 of the Race Relations Act 1976 to extend the time for the submission of the Originating Application the Employment Tribunal should have regard to the total period of delay.

HIS HONOUR JUDGE PUGSLEY

1. This is a case in which the Appellant seeks to appeal the decision of an Employment Judge, Ms J B O'Hara sitting on 28 February 2008 in which it was held it was just and equitable to exercise its discretion under section 68 of the Race Relations Act 1976 to extend the time for the submission of the Originating Application in all the circumstances from 28 September 2007 to 21 December 2007.
2. The Claimant was employed as a general retail manager by the Respondents from 30 October 2006 until 29 June 2007 and he was dismissed allegedly for gross misconduct. He was a manager of a pub owned by the Respondents. The Claimant believes his dismissal was an act of discrimination on the grounds of his race.
3. The Tribunal made these findings of fact: the Claimant was employed as a retail manager of a pub first in Warrington, then in Manchester. He was subject to disciplinary proceedings and his dismissal was on 29 June 2007.
4. He appealed against that decision but the appeal was not upheld and he was informed of that outcome in a letter dated 1 August. He did not enter a grievance in writing against that decision.
5. He made contact with the Race Equality Council in Chester on 6 August. He was then away on holiday and he returned to the Council on 24 August to give full instructions. He was seen by Ms Willis, who had recently been employed as a case worker. When Ms Willis took instruction she believed the time for submission of an application to the Tribunal expired on 28 December; this was on the basis that the Employment Act 2002 (Dispute Resolution) Regulations 2004 applied to this case in such a way that to extend the normal three-month limit before submitting the application.
6. She was not aware that in the context of this case where the Claimant did not have the requisite continuity of service to maintain that unfair dismissal, the only complaint he could bring was under the Race Relations Act 1976.
7. In November the Claimant served a questionnaire under section 65 of the Race Relations Act. In fact that did not evoke a response until January the following year.
8. The Claimant had contacted a solicitor in Manchester whose name he got from the Yellow Pages before he was dismissed, and he was advised he could not bring a claim in the Employment Tribunal because he did not have sufficient service. He received that advice before the time of his dismissal.
9. On the day of the disciplinary hearing, which was 29 June, the charge was changed by the Respondent and the Claimant was allowed for the first time to see the witness statements of those witnesses on whose evidence his employer was relying. The reason for the dismissal was given as mismanagement rather than misappropriation of the company's property. There was no information in the Notice of Appearance as to the exact reason for the dismissal.
10. The Claimant contacted the CRE on 6 August upon receipt of the letter telling him his dismissal would stand as his appeal was unsuccessful. The Claimant was aware that any application had to be submitted within three months and he believed that the three month time period started to run from the date he was informed of the outcome of the appeal.
11. When he met Ms Willis on 24 August she informed him that the time limit was six months and the application must be received by the Tribunal before 28 December. During the time he was receiving advice from Ms Willis he telephoned her three times a week in order to find out what was happening about his claim.
12. Some months after he saw Ms Willis, the date is about 26 October, he received a letter from her informing him that her advice was wrong and that the time limit was three months and he ought to pursue the matter. He attended the offices of the CRE in Chester to sign the application. It is common ground that the application was received on 21 December.
13. The Claimant acted on the basis that at all times the CRE were professional and had sufficient knowledge to act on his behalf and the advice which he received was reliable.
14. The Tribunal actually received the application on 21 December 2007. The Tribunal set up in a very appropriate way the relevant issues of law and the cases of Chohan v Derby Law Centre [2006] UKEAT/0851/03, [2004] IRLR 685, was cited, so was Hutchison v Westwood Television Ltd [1977] IRLR 69 along with the British Coal Corporation v Keeble [1997] IRLR 336 and Roberston v Bexley Community Centre [2003] IRLR 434. The case of Keeble then sets out the way in which the factors that should be taken in account and the standard. Reminder is given from Hutchison that everything really ought to be considered; and then there is the well-known quotation of Auld LJ from Robertson v Bexley Community Centre.
15. No one can criticise the way in which this Tribunal has done its work, which is clear and concise. There is one respect where the Tribunal, if I may say so, does not deal with a salient feature.
16. The Tribunal made the finding that the Claimant was entitled to rely on the advice of Ms Willis who was working for the organisation REC. The Tribunal considered that the cogency evidence would not be affected by a delay of 15 weeks, and being realistic I think that was a matter open to them. It is of significance in the judgment there really is no explanation or consideration of the significance of the delay from October when the time limit was correctly appreciated to the submission of the application on 21 December.
17. I take the point made very well by the Respondents in their skeleton argument that these are matters of discretion. I fully understand that; and that the tribunal's decision should very rarely be upset and I fully accept that. There is a particular chemistry about each case.
18. Mr Weir has really put in quite an excellent skeleton argument. I must say the skeleton argument also of the Respondent was extremely helpful. I am prepared to accept it is an error of law not to deal with the gap between October and December. However, I am not prepared to take the view that this delay means the case must inevitably fail as a matter of law.
19. I allow the appeal and remit this to a different Chairman to reconsider the matter and to consider the effect of the delay between the appreciation of the correct date for submission and the actual date of submission. This balancing act has not yet been carried out by the Employment Tribunal.