United Kingdom Employment Appeal Tribunal

Appeal No. UKEATS/0010/10/BI

 

 

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

 

 

                                                                                                                At the Tribunal

                                                                                                                On 17 August 2010

                                                                         

 

 

Before

THE HONOURABLE LADY SMITH

(SITTING ALONE)

 

 

 

 

 

PERTH & KINROSS COUNCIL                                                                         APPELLANTS

 

 

 

 

 

 

MS FIONA TOWNSLEY                                                                                   RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

                                              APPEARANCES

 

 

 

 

 

For the Appellant	MRS M McLAREN (Solicitor) Perth & Kinross Council Legal Services 2 High Street Perth PH1 5PH
For the Respondent	MR R PITTS (Representative) Central Scotland R.E.C Community Education Centre Park Street Falkirk FK1 1RE

 

 

SUMMARY

RACE DISCRIMINATION – Indirect

JURISDICTIONAL POINTS – Extension of time: just and equitable

 

Extension of time for presentation of a claim for indirect race discrimination where claim presented 19 months after the act complained of.  Employment Judge erred in failing to take account of two important aspects of evidence from witnesses who he had found to be truthful.  Since that evidence demonstrated that it could not be said that the Claimant was reasonably ignorant of the possibility of presenting a claim to an Employment Tribunal and, furthermore, that the Claimant had no relevant case of indirect discrimination, the Tribunal’s decision was set aside by the Employment Appeal Tribunal and claim dismissed.

 

 

 

THE HONOURABLE LADY SMITH

Introduction

1.            This is an appeal from that part of the judgment of an Employment Tribunal sitting at Dundee, Employment Judge I McFatridge, registered on 23 December 2009, in which, following a pre- hearing review (‘PHR’), he determined:

 

“1. The time limit for presenting the claimant’s claim of indirect discrimination and victimisation to the Tribunal is extended in terms of section 68(8) of the Race Relations Act 1976, said claim is therefore in time and will proceed to a hearing.”

 

2.            In paragraph 2 of the same judgment he refused to extend the time limit in respect of the Claimant’s claims of direct discrimination and victimisation.  Plainly, however, the extension of time sought in respect of the Claimant’s claim of victimisation could not be both granted and refused.  Parties were agreed that the reference in paragraph 1 of the judgment to granting the application in respect of the victimisation claim must be an error and matters were approached on the basis that the Claimant’s application for an extension of time was refused in respect of all aspects of her claim apart from that of indirect discrimination.

 

3.            Parties were also agreed that there was another obvious error in the judgment, namely that at paragraph 3, the Employment  Judge refers to evidence on the time bar issue having been given at a case management discussion whereas the evidence referred to was given at a PHR.

 

4.            There is also an appeal against the Employment Judge’s refusal to grant a review of his judgment which he did because, in his view, the Council were seeking a re-hearing of the case.

 

5.            I will continue referring to parties as Claimant and Respondents.

 

6.            Before the tribunal and before me, the Claimant was represented by Mr R Pitts of Central Scotland Racial Equality Council and the Respondents were represented by Ms M McLaren, solicitor.

 

Background

7.            The Claimant claims that she is of distinct ethnic origin, namely Scottish gypsy traveller.  Her claim arises out of the Respondents having decided not to interview her for the post of site manager of the Doubledykes travellers’ site.  She applied for the job by completing a form.  She submitted it on 30 November 2007 and was advised by letter dated 21 December 2007 that she had been unsuccessful.  The letter stated:

 

“I am sorry that I am unable to invite you to participate in the interview as there are other applicants who more closely matched the selection criteria.”

 

8.            The Respondents no longer have the Claimant’s application form, having destroyed all forms relating to those applications for the post which were unsuccessful.  No copy of it is available.

 

9.            One of the Respondents’ essential criteria, as set out in their Job Person Specification, was:

 

“Educated to standard grade or equivalent.”

 

10.         Standard grades are the educational qualification provided by the Scottish Qualifications Authority.  The relevant exams are taken at school, usually at the same stage as students who sit the exams for the English GCSE.  The Claimant’s complaint is, essentially, that she, in common with many Scottish gypsy travellers, did not sit or achieve standard grades because the norm is that they do not attend school beyond primary education stage.  That means, she says, that the proportion of travellers who can comply with the standard grades requirement is considerably smaller than the proportion of persons able to comply who are not travellers (Race Relations Act 1976 (“RRA”) s.1(1)(b)).  She considers that she was, accordingly, subject to a requirement which put her at a particular disadvantage when compared with others.

 

11.         In the paper apart to her Form ET1, her case is encapsulated at paragraphs 35 and 36, in the following terms:

 

“35. I...believe that the Respondent’s policy and practice of requiring formal academic qualifications for the Site Manager’s position to be indirectly discriminatory on racial grounds against myself and Scottish Gypsy Travellers in general contrary to Section 1(1)(b) of the Race Relations Act 1976 as amended. 

36. This is due to the fact that most Scottish Gypsy Travellers do not possess Academic qualifications it is rare for them to progress beyond Primary School education for a variety of reasons.  I do not believe the requirement to be objectively justifiable for the position in question.”

 

12.         The Claimant was, as at December 2007, in regular contact with a case worker at the Commission for Racial Equality, Samantha Naik, in respect of complaints she was pursuing involving, in particular, the Respondents’ allocations policy in respect of the Doubledykes site and the operation of their complaints policy.

 

13.         Shortly after receiving the letter of 21 December 2007, the Claimant had a meeting with Samantha Naik at which she mentioned that she had not been successful in obtaining an interview for the job; having done so, she understood that Samantha Naik would deal with that complaint as another part of her ongoing complaints of race discrimination.  The Tribunal’s findings in fact regarding that matter are at paragraph 28:

 

“The claimant had a meeting with Samantha Naik shortly after she received the letter indicating that she was not being called to interview.  At her meeting she mentioned that she had not been successful in obtaining an interview for the job.  Samantha Naik did not react in any way to this.  She did not give the claimant any advice on the matter.  The Claimant understood that Samantha Naik would deal with this as another part of the Claimant’s ongoing complaint of Race Discrimination by the Respondents.”

 

14.         There are no findings that the Claimant took any other steps in respect of her complaint about not getting an interview.  In particular, the Claimant did not follow matters up with Samantha Naik nor did she seek advice elsewhere about furthering that complaint.  In about January or February 2008, shortly after the Claimant had been successful in being allocated a stand at the Doubledykes site, Samantha Naik wrote to the Claimant to advise that the Commission for Racial Equality would not fund or support any individual court action by the Claimant.  The Claimant did not, at that stage, make any enquiry about her complaint regarding the job interview.

 

15.         The Claimant continued to be in dispute with the Respondents and on 23 July 2009 she met with Mr R Pitts of the Central Scotland Racial Equality Council.  In the course of that meeting, the Claimant made a remark about not getting the job of site manager at Doubledykes site and he asked her if she had submitted a claim to the Employment Tribunal in respect of the matter.  The Claimant had not, prior thereto, appreciated that such a claim could be made.  Mr Pitts had the Claimant complete a form ET1 and typed out a paper apart for her to sign.  He faxed it to the Central Office of Employment Tribunals that day, that is, on a date some nineteen months after the act complained of.

 

Agreed evidence

16.         For the purposes of this appeal parties were agreed that one of the Respondents’ witnesses (June Beverley) gave unchallenged evidence to the effect that the criteria “standard grades or equivalent” meant standard grades, or a vocational qualification such as Scottish Vocational Qualifications or a City and Guilds Qualification, or relevant experience.

 

17.         Parties were also agreed that the Claimant accepted, in cross examination, that she knew of another gypsy traveller, Roseanna McPhee, who asserted her rights in relation to a recruitment complaint in which the Commission for Racial Equality assisted and which involved her pursuing that complaint “through the courts”.

 

The Tribunal’s judgment

18.         I turn first to the Tribunal’s findings in fact in respect of the two pieces of evidence that parties were agreed had been given by June Beverley and by the Claimant.  The Employment Judge’s findings in fact do not accord with that evidence.  At paragraph 21, he states that the criteria “Educated to standard grade or equivalent” was accepted as meaning that the applicant for the job required to have standard grades.  June Beverley was the Respondents’ only witness, the Employment Judge accepted her as being truthful (rejecting her evidence only in respect of one unrelated matter) and that is not, as explained above, what she said in evidence.  An applicant could satisfy the criteria by demonstrating that they had standard grades or that they had a vocational qualification such as those referred to by her or that they had relevant experience.

 

19.         Secondly, regarding the Claimant’s knowledge of another gypsy traveller’s claim, the Employment Judge makes findings in fact about that matter at paragraph 29.  He finds that the Claimant was aware of that other person having made a complaint that her lack of success in a job application was discriminatory on grounds of race and that the Claimant was aware that it was being dealt with by the Commission for Racial Equality but finds that the Claimant was not aware that the woman was involved in tribunal proceedings or that any such proceedings were in contemplation.  That, however, takes no account of that part of the Claimant’s cross examination to which reference is made above where she accepted that she knew not only that Ms McPhee complained of race discrimination in a recruitment matter but was doing so by way of asserting a “right” “through the courts.”

 

20.         Turning to the Employment Judge’s reasoning, he approached his consideration of the Claimant’s application for an extension of time on the basis that he accepted the Claimant’s evidence about her ignorance of the availability to her of a claim before the Employment Tribunal and that thus the “primary reason” for the lengthy delay that had occurred was the Claimant’s ignorance of the existence of Employment Tribunals.  Although he uses the word “primary”, that is the only reason that would appear to have carried any weight with him when it came to determining the application.  Although some findings were made about the Claimant having had some personal difficulties, these do not feature in the Employment Judge’s reasoning.  He does not consider whether or not the Claimant’s ignorance was reasonable.

 

21.         The Employment Judge refused the application for an extension of time in respect of the Claimant’s claim of direct discrimination and victimisation as he considered that the absence of the application form submitted by the Claimant and the application forms submitted by other unsuccessful candidates could potentially cause serious difficulty for the Respondents.  There was also a difficulty in that two of the employees involved were now in different jobs with the Council and one of them had retired.  If the “reverse burden of proof” came to apply, the Respondents would not be able to refer to those application forms, the retired witness might not be available and, in any event, the recollections of the other witnesses were liable to have dimmed; he accepted June Beverley’s evidence that she had no detailed recollection of the specific events.

 

22.         The Employment Judge took a different approach, however, when it came to the claim of indirect discrimination.  At paragraphs 56 and 57 he states:

 

“56. With regard to the claim of indirect discrimination I consider the position to be quite different.  I consider the prejudice, if any, which would be suffered by the respondents to be relatively slight.

57. If this claim were allowed then it is up to the claimant to prove disparate effect.  The evidence for this is presumably the same evidence as would have been available in early 2008.  It will be primarily statistical and each party will be able to access this without much difficulty.  In the event that the claimant is successful in her contention then the respondents will require to prove, as claimed in their ET3, that the respondent was justified in imposing the requirement to be educated standard grade or above and that this was a proportionate means of achieving a legitimate aim.”

 

23.         In so concluding the Employment Judge also refers to an employee of the Respondents, Liz Cooper, as having been responsible for:

 

“the decision to include academic qualifications as an essential criteria”

 

and to it

 

“being fairly straightforward for her to give evidence as to her thought processes at the time.”

 

24.         Liz Cooper did not give evidence at the PHR.  The Employment Judge continued:

 

“57…The matter seems to be a fairly clear cut one of fairly short compass.  I do not see that the cogency of the evidence will be affected by the delay or that there will be any prejudice to the respondents.”

 

25.         The Employment Judge made reference to the cases of Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298 and British Coal v Keeble [1997] IRLR 336.

 

The appeal

26.         The Respondents appealed under reference to three grounds.

 

27.         First, it was submitted that the Tribunal was said to have erred in failing to take account of relevant facts, namely that the criteria at issue did not mean that an applicant required to have standard grades but that the applicant required to have standard grades or a vocational qualification such as the examples given by June Beverley or relevant experience, and that the Claimant had accepted that she knew that Ms McPhee, with the assistance of the Commission for Racial Equality, had, in respect of a recruitment complaint, asserted a race discrimination right through the courts.  The Tribunal had, in respect of these two matters, both of which were important, proceeded on an erroneous basis of fact.

 

28.         Secondly, it was submitted that the Tribunal had erred in confining its considerations to whether or not the Claimant was in fact ignorant of the availability of an Employment Tribunal claim and had not asked itself whether or not the Claimant was reasonably ignorant.

 

29.         Thirdly, it was submitted that the Tribunal had erroneously proceeded on the basis that there was a prima facie case of indirect discrimination; the facts did not support such an approach, particularly once account was taken of the fact that the relevant criteria were not confined to being that the applicant required to have standard grades.

 

30.         Ms McLaren submitted that the Tribunal had misunderstood and misdirected itself as to the facts in a way that amounted to an error of law as explained in Watling v William Bird & Son Contractors Limited [1976] 11 ITR 70, and British Telecommunications Plc v Sheridan [1990] IRLR 27.  She referred to the case of Marks and Spencer v Williams- Ryan [2005] EWCA Civ 470 in support of her submission that ignorance of the availability of a remedy was not enough; the ignorance required to be reasonable.  The Claimant in this case had made no effort to make enquiries.  That showed that her ignorance was not reasonable; she could, for instance, have followed matters up with Samantha Naik.  She could have made enquiries once she heard about Ms McPhee’s claim.  Ms McLaren also referred to the Caston case in support of a general submission that when it comes to the exercise of a discretion, there must have been material available to the Employment Judge on which he could properly base his decision.  Such material was, in her submission, absent in this case.  Further, it was, she said, clear that the Claimant had no relevant case of indirect discrimination once account was taken of the facts to which the Employment Judge had failed to have regard.

 

31.         For the Claimant, Mr Pitts approached his submissions on the basis that the appeal point he had to meet was that the Tribunal’s judgment was not “Meek” compliant and under reference to Duncan v GTC [2010] EWHC 429 submitted that even if the reasoning of the Tribunal was defective, that did not matter if there was a clear factual basis on which it could proceed; there was, he said, such a basis in this case, namely that the Claimant was excluded from interview because she did not have standard grades in circumstances where, as a Scottish gypsy traveller, she was not likely to have that qualification. The source of Mr Pitts’ understanding that the appeal was being presented on the ground that the Tribunal’s judgment was not “Meek” compliant is not apparent; there is no such ground in the Notice of Appeal nor did Ms McLaren seek to advance any argument to that effect.  Mr Pitts also referred to the Employment Judge having accepted the Claimant’s evidence; that being so, there was nothing to support the Respondents’ argument that there was no relevant case of indirect discrimination.  He said that he believed the Respondents’ contention that the Tribunal had failed to consider whether the Claimant was reasonably ignorant of the availability of a tribunal claim was incorrect; the Employment Judge had, he said, felt that the Claimant had made enough effort and taken reasonable steps to find out how to advance her claim.

 

32.         Mr Pitts said that the Commission for Racial Equality should have advised the Claimant about the availability of a tribunal claim.

 

33.         Mr Pitts also made submissions regarding the wide scope of the discretion available to the Employment Judge, under reference to the case of Watling v William Bird & Son Limited [1976] 11 ITR 70 and said that he would distinguish the Claimant’s circumstances from those which existed in the Marks and Spencer case since the Claimant was not aware of her right of recourse to the employment tribunal.

 

34.         Regarding the fact that the Respondents’ criteria involved the option of vocational qualifications or relevant experience, Mr Pitts said that the point was not relevant as it did not mitigate the effect of the policy in practice since most travellers did not attend school beyond primary level.  He did not explain how or why it was to be inferred from that that they were less likely to have vocational qualifications or relevant experience.

 

35.         Mr Pitts submitted that the Tribunal’s decision should not be interfered with as the Employment Judge had been entitled to reach the conclusion he reached on the facts of the case, as in Wall’s Meat Co v Khan [1978] IRLR 499.  He also referred to paragraph 12 of the judgment of Mummery LJ in the case of Yeboah v Crofton [2002] EWCA Civ 794 as showing that a discretionary decision should not readily be interfered with, a reference which was not entirely clear since the passage concerns perversity challenges, not interference with the exercise of a discretion.  Overall, Mr Pitts’ submission was that the Employment Appeal Tribunal could not interfere except in exceptional circumstances and this was not such a case.

 

Relevant law

36.         The Claimant’s application for an extension of the time bar was made under s.68 of the Race Relations Act 1976 which provides:

 

“(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 3 months beginning when the act complained of was done...

……………….

(6) A court or tribunal may nevertheless consider any such complaint or claim which is out of time if, in all the circumstances of the case it considers that it is just and equitable to do so.”

 

37.         As succinctly stated by Wall LJ in the recent case of Chief Constable of Lincolnshire Police v Caston, at paragraph 17:

 

“…the discretion under the Statute is at large.  It falls to be exercised “in all the circumstances of the case” and the only qualification is that the EJ has to consider that it is “just and equitable to exercise it in the claimant’s favour.”

 

38.         In the case of British Coal v Keeble, observations were made to the effect that it could be helpful to use the same checklist as is to be found in the provisions of the Limitation Act 1980 which deal with extensions of time.  However (a) the Scottish equivalent, section 19A of the Prescription and Limitation (Scotland) Act 1973, contains no checklist; it simply empowers the court to extend the time limit if it considers that it would be “equitable” to do so, and (b) as Wall LJ’s observations show, the correct approach always is to revert to the relevant statutory provisions which, in this case, are that the tribunal is empowered to extend the time limit if  “..all the circumstances”, not only those on a checklist, are such as to cause it to conclude that it would be “just and equitable” to do so.  As to the task for an appellate court where such an exercise of discretion is challenged on appeal, to draw again from the judgment  of Wall LJ, this time at paragraphs 3 and 18:

 

“3. As with every appeal from the Employment Appeal Tribunal, the question for this court is whether or not the Tribunal – in this case the EJ – has made an error of law …

…………….

18. Stated this way, the answer, I have to say, seem (sic) to me to be obvious.  Was there material upon which the EJ could properly exercise the discretion?  Plainly, there was.  As Underhill J pointed out, the findings of fact made by the EJ were clearly open to him.  Once the exercise of discretion was so regarded, the difficulties – if such they be – fall away.”

 

39.         When an extension of time is sought under s.68(6) of the RRA or under similar statutory provisions in relation to claims for discrimination relating to other protected characteristics or for unfair dismissal, it is not unusual for claimants to seek to rely on their own ignorance as to the availability of a tribunal claim or as to time limits.  The relevance of ignorance when exercising such discretion has been the subject of judicial discussion.  In particular, a passage in the judgment of Brandon LJ in the case of Wall’s Meat co Ltd v Khan (described by Lord Phillips MR, as he then was, in the Marks and Spencer case, as being “typically lucid”) is often referred to:

 

“With regard to ignorance operating as a similar impediment, I should have thought that, if in any particular case an employee was reasonably ignorant of either (a) his right to make a claim of unfair dismissal at all, or (b) how to make it, or (c) that it was necessary for him to make it within a period of 3 months from the date of dismissal, an industrial tribunal could and should be satisfied that it was not reasonably practicable for his complaint to be presented within the period concerned.

For this purpose I do not see any difference, provided always that the ignorance in each case is reasonable between ignorance of (a) the existence of the right, or (b) the proper way to exercise it, or (c) the proper time within which to exercise it.”

 

40.         Thus, as Phillips MR put it, at paragraph 21 of Marks and Spencer:

 

“Ignorance of either does not necessarily render it not reasonably practicable to bring a complaint in time.  It is necessary to consider not merely what the employee knew but what knowledge the employee should have had had he or she acted reasonably in all the circumstances.”

 

41.         Although both of the above discussions were in the context of the “not reasonably practicable” test which is applicable when considering whether or not to allow an extension of time in an unfair dismissal claim, I consider that the comments regarding the need to consider not only whether the Claimant was ignorant but also whether the Claimant was reasonably ignorant apply in the same way to an application for extension where the “just and equitable” test applies.  It seems obvious that it is important when asking whether or not it is just and equitable to allow the extension in a case where the Claimant was ignorant of any of the three matters identified by Brandon LJ, to consider whether it was reasonable for the Claimant to have been and have remained in that state of ignorance throughout the period of the primary time limit.

 

42.         Turning then to the nature of the Claimant’s claim, being a claim of indirect discrimination, the issue is whether or not the requirement complained of has a disproportionate adverse impact upon a particular group, in this case Scottish gypsy travellers.  It is of the essence of such a claim that the requirement relied on is clearly identified and that the Claimant establishes that, as compared to others, a smaller proportion of the group of which the Claimant is a member is able to comply with the requirement.  There is clearly a scope for debate as to what would comprise the appropriate group of persons not of Scottish gypsy traveller origin for relevant comparison purposes.  No doubt issues could arise such as those discussed in the cases of Rutherford v Secretary of State for Trade and Industry [2006] IRLR 551, British Medical Association v Chaudhary [2007] IRLR 800, and Grundy v British Airways Plc [2008] IRLR 74.  These matters have not, however, yet been addressed in this claim; the PHR was confined to the time bar issue.

 

Discussion and decision

43.         The Claimant’s claim is based on a single assertion of fact namely that applicants for the post of site manager of the Doubledykes site would not be considered for interview if they did not have any standard grades.  Her proposition is that the imposition of that requirement amounts to indirect discrimination of a type proscribed by s.1(1)(b) of the RRA because the travellers group of which she is a member are substantially less likely to sit and pass standard grades given that many of them do not receive formal education beyond primary level.

 

44.         In seeking to persuade the Employment Judge to exercise his discretion to grant an extension of time under s.68(6) of the RRA, the Claimant relied principally on the fact that she did not know that she could pursue a claim in respect of her complaint about not getting an interview before an employment tribunal until Mr Pitts told her about it in July 2009 and that is the only matter that appears to have carried any weight with the Employment Judge.  The question for me is whether or not it was open to him to decide that it was just and equitable, in all the circumstances, to grant the extension sought?

 

45.         I consider that the first ground of appeal is well founded.  The Employment Judge’s finding that applicants for the post required to have standard grades was not one which, on the evidence, he was entitled to make.  The evidence was that there were three different ways of complying with the requirement, one of which, being a vocational qualification, did not imply a requirement to have been at school past primary stage and the other of which did not involve having any training or qualifications at all.  Having standard grades was not, accordingly, the only route to being considered for an interview.  The Employment Judge having satisfied himself as to the witness’ honesty and no question having been raised as to her reliability, the only course open to him was to accept that evidence.  Had he done so, it should have become apparent to him that the whole foundation for the Claimant’s claim fell away.

 

46.         As to the second ground of appeal, I consider that it is also well founded.  Whilst the Employment Judge has considered whether the Claimant’s professed ignorance was genuine and determined that it was, he has not addressed the question of whether it was and remained reasonable ignorance.  The closest he comes to considering that issue is at paragraph 51 where he states:

 

“It appeared to me that given the claimant’s ignorance of Employment Tribunals she possibly did not emphasise to Samantha Naik what had happened.  Samantha Naik may not have picked this up as other than a passing remark.  Given that I accept the claimant did not know of the existence of Employment Tribunals her failure to adequately bring the matter to Samantha Naik’s attention is understandable.”

 

47.         That, however, is as far as his consideration goes.  He does not consider the reasonableness of the Claimant’s ignorance yet there were matters brought out in the evidence which raised the question of whether or not her ignorance was reasonable.  They included the fact, as found by the Employment Judge at paragraph 28 that, having told Samantha Naik about not getting an interview:

 

“The Claimant understood that Samantha Naik would deal with this as another part of the claimant’s ongoing complaint of Race Discrimination by the Respondents.”

 

and the fact that, as accepted by her in cross examination, she was aware, via her knowledge of Ms McPhee’s case, of the right to make a claim for discrimination in respect of a recruitment matter and that such a claim could be asserted through, as she thought, “the courts”.  They included that she also knew, by a date in February 2008, that the Commission for Racial Equality had withdrawn from acting for her.  In all these circumstances, a number of questions plainly arise to which no answers were provided by the Claimant at the PHR, namely: why did she not enquire of Samantha Naik what was happening about her interview complaint?  When she heard from the CRE in February 2008, why did she not ask which of her complaints their withdrawal related to and whether they would continue to further her complaint about not getting an interview?  When she learnt of Ms McPhee’s case, why did she not take steps to find out if she could make a similar claim?  Without satisfactory explanations in respect of at least these matters, it could not be concluded that her ignorance was reasonable. Thus, the circumstances are that the Employment Judge not only failed to find that the Claimant was reasonably ignorant of the availability of a tribunal claim but on the available material, it would not have been open to him to do so.

 

48.         Turning to the third ground of appeal, it follows from my conclusion regarding the first ground of appeal that I find this ground also to be well founded.  The effect of the Employment Judge’s misapprehension that the evidence was that the Claimant’s lack of standard grades of itself excluded her from being interviewed was that he disabled himself from appreciating that there was no proper basis for the Claimant’s claim.  That was a highly relevant circumstance which should have been taken into account when considering whether it was just and equitable to grant the extension.

 

49.         As regards the review, having read the email exchange that contained the Respondents’ review application and its refusal, I am satisfied that the points being urged upon the Employment Judge were essentially the same as those contained in the first ground of appeal and it was wrong to reject the review application as being an application for a re-hearing.

 

50.         It follows that the appeal succeeds and that in the circumstances the outcome is that the Claimant’s entire claim is time barred and falls to be dismissed.

 

51.         I would add, by way of observation, that the distinction that the Employment Judge draws between the prejudice that would be suffered by the Respondents if the direct discrimination and victimisation claims had been allowed to go ahead and that which would be suffered if the indirect discrimination case were to go ahead does not appear to be a sound one.  There is no basis for his assertion that “it will be fairly straightforward” for a witness from whom he did not hear at the PHR to give evidence “as to her thought processes at the time”, the relevant time being her thought processes as at March 2007, which, according to the “Person Specification” including the criteria that includes the reference to standard grades (see: page 106 of the appeal bundle) was the date of its preparation.  If any assumption could properly be made, the only appropriate one would, rather, seem to be that it would be very difficult for a witness to give evidence about thought processes in which they engaged some three years earlier.  Also, whilst the Employment Judge refers to the relevant evidence being, primarily, readily accessible statistical evidence, he does not appear to have given any thought as to which statistics would be relevant, bearing in mind that, for comparison purposes, it would be a matter of obtaining statistics for not only the academic qualifications of the group of which the Claimant is a member but of whichever group it is that the Claimant seeks to demonstrate has a higher proportion of persons who can comply with the requirement, assuming such statistics exist.  It could be that the Respondents would be prejudiced in not being able to demonstrate what proportion of those applicants who applied for the post had standard grades, their application forms having been destroyed.  In short, I very much doubt that matters would be as straightforward as the Employment Judge suggests or, in all the circumstances, as free from the risk of prejudice to the Respondents arising because of the delay that has occurred.

 

Disposal

52.         I will pronounce an order setting aside paragraph 1 of the judgment of the Employment Tribunal, finding that the Claimant’s claim is time barred in terms of section 68(1)(a) of the Race Relations Act 1976 and, accordingly, dismissing it.