United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR CHANGEZ KHAN (of Counsel) Instructed by: Rose & Rose Solicitors The Riverside Centre 40 High Street Kingston upon Thames KT1 1HL
For the Respondent	MR WILLIAM MACKENZIE (Representative) Croner Consulting (Litigation Department) Croner House Wheatfield Way Hinckley LE10 1YG


 


SUMMARY

RACE DISCRIMINATION – Continuing act

JURISDICTIONAL POINTS – Extension of time: just and equitable

Whether grievance process carried out by employer arising immediately from act of discrimination found (suspension) formed part of a continuing act; held it did, as ET found. Whether just and equitable to extend time; ET failed to consider balance of prejudice and visited legal advisor's mistake as to time limits on Claimant (Chohan). Extension of time granted by EAT.


 


HIS HONOUR JUDGE PETER CLARK

Introduction

1. This case has been proceeding in the Ashford Employment Tribunal. The parties are Mr Bahous, Claimant, and Pizza Express Restaurant Ltd, Respondent, as we shall describe them. We have before us for a full hearing, an appeal by the Claimant and a cross-appeal by the Respondent, against the Judgment of that Tribunal promulgated on 29 September 2010 (written Reasons were provided on 27 October 2010) in the following circumstances.

Background

2. The Claimant was employed by the Respondent, latterly at their Sevenoaks branch, from 15 March 2000 until his resignation effective on 13 January 2010. He was a waiter.
3. The Claimant is a British citizen of Moroccan origin. In July 2009 he was asked by his employer to produce his passport under threat of suspension. It turns out that he had done so in the past but the Respondent had lost its copy. On this occasion he did not produce his passport and was duly suspended. Only he and an African employee at Sevenoaks, Charles Amperdo, were asked to produce their passports.
4. His suspension commenced on 15 July, whereupon he raised a grievance with the Regional Operations Manager. On 6 August the Claimant's suspension was lifted and he was paid for the shifts he had missed. His grievance culminated in a meeting with Mr Claxton, the Operations Manager newly appointed, on 15 December. By then the Claimant had instructed solicitors on 11 December.
5. On 17 December, those solicitors wrote to the Respondent requesting an apology for the earlier request to produce his passport, compensation and his legal costs. Mr Claxton wrote to the Claimant on 24 December, apologising for the loss of his personnel file. He did not acknowledge that the Claimant had been singled out to produce his passport. It was purely coincidental that the only two non-white employees at Sevenoaks, the Claimant and Mr Amperdo, were asked for their passports. A copy of Mr Claxton's letter was posted to the Claimant's solicitors on 30 December. The Tribunal found they would have received it by 4 January 2010.
6. Meanwhile the Claimant had been interviewed for a full time job with the AA in November 2009. He also operated a plumbing business which was then not profitable. He accepted the AA job starting on 4 January 2010. The pay was better than for his three weekly shifts with the Respondent and his plumbing work combined. On 13 January he tendered his resignation to the Respondent with immediate effect. He had worked his three shifts on 7, 8 and 9 January at the Sevenoaks restaurant.

The claims

7. By a form ET1 lodged on 9 April 2010, the Claimant complained of (1) constructive unfair dismissal; and (2) direct racial discrimination. Both claims were resisted by the Respondent.

The Tribunal Decision

(1) Constructive dismissal

8. The Tribunal found that the complaint of racial discrimination was made out and that, combined with the Respondent's handling of the grievance, could amount to a fundamental breach of contract entitling the Claimant to resign. However, that was not the reason for his resignation. He did not resign in response to the Respondent's breach, but because he found another better-paid line of work. He was not constructively dismissed, and therefore the complaint of unfair dismissal failed. There is no appeal against that finding.

(2) Race discrimination

9. As indicated above, the Tribunal found that the complaint of direct race discrimination was made out. At paragraph 27 they held:

"27. The email of 9 July 2009 headed "Illegal employees" singles out two African employees for specific checks, the Claimant and one other. White EU nationals had documentation missing. There were reminders of this but no threat of suspension or actual suspension. That is evidence from which the Tribunal could infer that the Claimant and the other individual had been singled out on the basis of their national origins. We had no first hand evidence from the Respondent on the circumstances in which the request was made and find that the Respondent has not discharged its burden of proving that the request and the subsequent treatment by suspension was not influenced by the Claimant's national origin. There appears to have been an assumption that the Claimant should be treated as an illegal worker unless he could prove the contrary."

For the avoidance of doubt, at paragraph 32 they added: "the claim of race discrimination which we have found established..."

10. Nevertheless, this claim failed on a limitation point. In holding that the claim was time-bared the Tribunal made two essential findings, now the subject of these appeals. First, they held that following the initial act of discrimination, suspension between 15 July and 6 August 2009, the Respondent's treatment of the Claimant's grievance formed part of a continuing act of discrimination which terminated with Mr Claxton's letter of 24 December. Time began to run from that date. Against that finding the Respondent cross-appeals. They contend that time for lodging the claim ran from 6 August, when the Claimant's suspension was lifted. However, the form ET1 was not lodged until 13 April 2010, more than three months after the 24 December. In deciding whether it was just and equitable to extend time under s.68(6) of the Race Relations Act 1976 (RRA), the Tribunal said this at paragraphs 33-34:

"33. The operative date in relation to the race discrimination claim was 24 December 2009. The presentation of the claim on 9 April 2010 was outside the primary time limit of three months. It may have been just and equitable to extend time to reflect a period of delay in the communication of the decision reached on the 24 December to the Claimant and to his solicitors. However we have found that by at least the 4 January 2010 the Claimant and his advisers were aware of the decision. Even taking that date as the operative date that would have rendered a claim presented on the 9 April 2010 out of time. No explanation was given for the delay. The Claimant and his advisers appeared to have assumed that the date of resignation was the operative date for all matters. They appeared to be working on the basis that the Claimant's claim was that it was the breaches of contract, and the discrimination and data protection issues that were the reason for his resignation. We have found that not to be the case.

34. The Claimant did not act promptly. He did have the advantage of legal advice during the relevant time. It is clear that he had the benefit of legal advice from a least the 11 December 2009 when the solicitors wrote to the Respondent. We do not therefore find it just and equitable to extend time to permit the Claimant to make his race discrimination claim. The Tribunal has no jurisdiction to deal with it."

Against that finding the Claimant appeals.

The appeals

11. It is convenient first to deal with the continuing act point, challenged by the Respondent, and then the just and equitable extension finding against which the Claimant appeals.

Continuing act

12. Mr Mackenzie submits that although the Claimant's case that the act of unlawful discrimination extended until determination of his grievance by Mr Claxton on 24 December 2009, was implicit in his form ET1 and put fairly and squarely before the Tribunal in Mr Khan's closing submissions which are before us (page 49), the Tribunal made no finding that the Respondent's conduct of the grievance process was, itself, discriminatory.
13. That is not how we read the Tribunal's Reasons, particularly at paragraphs 28-29, where they found that, in determining the grievance, Mr Claxton missed the point made by the Claimant, namely that only he and Mr Amperdo, the only employees of African origin working at Sevenoaks branch, were also the only employees asked to produce their passports.
14. Since the grievance was about that discrimination, which the Tribunal found was unlawful, and the grievance was raised on the same day, 15 July, that the Claimant's suspension started, we accept Mr Khan's submission that the Respondent's handling of the Claimant's grievance formed part of an ongoing situation, to borrow Mummery LJ's phrase used in Hendricks v  Commissioner of Police for the Metropolis [2003] IRLR 96, paragraph 52.
15. In these circumstances we are not persuaded that the Respondent's appeal surmounts the high threshold required to establish the perversity ground relied on by Mr Mackenzie (see Yeboah v Crofton [2002] IRLR 634), and consequently the Respondent's cross appeal fails and is dismissed.

Just and equitable extension

16. Peter Gibson LJ made clear in London Borough of Southwark v Afolabi [2003] IRLR 220, paragraph 33, that although the factors listed in s.33(3) of the Limitation Act 1980 also represent a useful checklist when considering the exercise that a just and equitable extension of time discretion under s.68(6) RRA, there is no requirement on a Tribunal to go through that list in every case, provided no significant factor is left out of account by the Tribunal. That principle has since been endorsed by the Court of Appeal in Governing Body of St Albans Girls School v Neary [2010] IRLR 124.
17. With that guidance firmly in mind, Mr Khan submits that here the Tribunal left out of account, in their reasoning, two important factors. First, the balance of prejudice between the parties and, secondly, the fact that the Claimant's discrimination claim was established before the Tribunal on its merits.
18. Mr Mackenzie fairly accepts that no prejudice was suffered by the Respondent by reason of the delay in lodging the claim, but submits that the Tribunal implicitly took that into account. He disputes the contention that the merits of the claim represents a separate factor for the Tribunal to take into account in exercising their discretion.
19. Our approach is this. The question of the balance of prejudice is plainly a material factor and one that is significant in this case. We prefer not to treat the merits as a separate consideration but as part of the prejudice balancing exercise. We agree with Mr Khan that there is no indication on the face of the Tribunal's Reasons that it took this matter into account
20. It is significant because on the one hand the Claimant has lost, not simply a speculative claim, but a good claim on its merits. Conversely the Respondent has suffered no prejudice in conducting its defence to the claim. In these circumstances the balance of prejudice is all one way. It impacts solely against the Claimant's interest.
21. The Tribunal's failure to take this significant matter into account represents, in our judgment, an error of law, just as was the case in Baynton v South West Trains Ltd [2005] ICR 1730, EAT, HHJ Burke QC presiding (see particularly paragraph 59).
22. Secondly, the question of legal representation. Mr Mackenzie makes the valid point that the Claimant advanced no explanation for the delay in lodging his claim (Reasons, paragraph 30 and 33) other than that he was considering his position. However, the Tribunal drew an inference as they were entitled to do. At paragraph 33 they say that the Claimant and his advisors appeared to have assumed that the date of resignation, 13 January, was the operative date for all matters, including the discrimination claim.
23. On the Tribunal's findings, the Claimant first consulted his solicitors on 11 December. Those solicitors are on the record on his form ET1. It is therefore plain and obvious that the Claimant relied on their expertise, among other things, to lodge his claim in time.
24. The Tribunal, at paragraph 34, refer to the Claimant having the advantage of legal advice, during the relevant time and add: "we do not therefore [our emphasis] find it just and equitable to extend time".
25. In so finding, we again accept Mr Khan's submission that the Tribunal fell into error in visiting upon the Claimant the failure, by his solicitor, to enter proceedings in time. See Chohan v Derby Law Centre [2004] IRLR 685, paragraph 16 and 19, per HHJ McMullen QC, and the facts of Baynton (see paragraph 59). On these two grounds we would allow the Claimant's appeal.

Disposal

26. Both parties invite us to decide the just and equitable discretion question ourselves, adopting our powers under the Employment Tribunals Act 1996, s.35(1), rather than remit the matter to a Tribunal for re-hearing. We agree to that proportionate course and are comforted in doing so by the observations of Jacob LJ in Buckland v Bournemouth University Higher Education Corporation [2010] IRLR 445, paragraphs 57-58.
27. We acknowledge the fact that there is no presumption that time should be extended. Time limits are strictly exercised in employment cases (see Robertson v Bexley Community Centre [2003] IRLR 434). Nevertheless, we are unanimous in our view that time should be extended in this case. The delay was short at 17 days, and only 6 days, if one takes into account the date on which the solicitors were found to have received a copy of Mr Claxton's letter.
28. The balance of prejudice is all one way, as we have earlier said. The Claimant will be deprived of a remedy for a now established complaint of unlawful racial discrimination. The reason for the delay lies at the hands of his then legal advisors. That should not be laid at his door. Taking into account all the circumstances, time should, in our view, be extended.
29. It follows that this matter will be remitted to an Employment Tribunal, preferably a fresh Tribunal, to determine the Claimant's remedy for the unlawful discrimination found by the original Employment Tribunal.