Clarke v Hampshire Electro Plating Co Ltd [1991] UKEAT 605_89_2409

EAT
Clarke v Hampshire Electro Plating Co Ltd
[1991] UKEAT 605_89_2409 · 1991-09-24
MR JUSTICE WOOD (PRESIDENT): This is an Appeal by Mr Clarke with the support of the Commission for Racial Equality from a Decision of an Industrial Tribunal sitting in Southampton under the Chairmanship of Mr Edwards who on the 8th November 1989 decided that it did not have jurisdiction to hear a complaint made by Mr Clarke of racial discrimination under the Race Relations Act 1976.Mr Clarke was represented at the Tribunal by a member of his trade union and for the Company, the Hampshire Electro-Plating Co Ltd, Mr Arnold, a Director, appeared.The claim was being put forward under Section 4(2)(b) and Section 1(1)(a) of the 1976 Act. In other words direct discrimination in failing to give opportunities to promote and for promotion.The Tribunal heard evidence from the Applicant alone, they say, but it is quite evident that Mr Arnold addressed them in some detail; it is clear from what he has been kind enough to tell us today, that a good deal of the whole history and the facts behind this were disclosed at the time. However, the only issue is whether or not there is jurisdiction and even though on the facts so far disclosed this claim may very well not be successful, that is entirely a matter for consideration at a later date if we find that there is jurisdiction. The sole issue therefore, is this preliminary point which is argued.The Applicant, Mr Clarke, is black and he had been employed by the Company as a metal polisher for some seventeen years. There were some three polishers usually employed but the Applicant, Mr Clarke was the longest serving. He took his instructions from a Director, but unfortunately he had an accident and was off work sick from March 1989 until the 24th July 1989. He had apparently consulted his trade union about his industrial injury so he was in touch with them.Whilst he was away sick he saw an advertisement in the local newspaper for an:

"Experienced Metal Polisher wanted to run small polishing shop."

A telephone number was given and although no name of the Company was given, Mr Clarke recognised the number, so he telephoned; he gave a false name and said he was interested in applying for that vacancy.He called to see Mr Arnold, the Director, on the 25th April 1989. That is the first of two important dates in this matter. The Applicant said that:

"this was not a proper interview"

we do not know what he means by that, because we have heard Mr Arnold about this matter, but it is immaterial. In the end Mr Arnold said quite frankly that he was not the person he was looking for for this particular appointment.The Applicant felt hurt, he felt that he had been discriminated against and it was because of his colour. He saw his trade union. He was off work until the 24th July, but he was able to move about and deal normally with matters, so on his return on the 24th July he went back to his old position and continued with his old employment; indeed he was still there at the time this came case before the Industrial Tribunal.On the 4th September 1989, the second important date, a white man was appointed to the task of Supervisor of the metal polishing shop.The Applicant went to see Mr Arnold, the Director. He said that he had been training staff over the years but that the Supervisor was earning more than he was and his first request was for an increase in wages. This was refused and as a result of that refusal the Applicant went to see his trade union and prompt proceedings were taken in front of the Industrial Tribunal.The issues before the Tribunal can be identified in this way. They had to look at the provisions of Section 68 of the 1976 Race Relations Act. Section 68(1) reads:
"An industrial tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done."
and then sub-section (6) reads:
"A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."
So the first issue was, what was the date of the act complained of? But of course that phrase, in our judgment indicates that there was at that time an act of discrimination and that the cause of action could properly be said to be complete at that time, because otherwise there would be no point in bringing proceedings. So the first question in this case is, did Mr Clarke have a cause of action on the 25th April 1989? It was not, did he feel that he had suffered discrimination on the 25th April 1989? If the cause of action had not crystallised, then of course on the facts of this case, as indeed it seems to have been conceded in front of the Industrial Tribunal, the date of the 4th September, with the appointment of the white man would have crystallised the cause of action by providing the comparison. If however there was in this case a cause of action which had crystallised on the 25th April then it seems to us that in exercising the issue of discretion under Section 68(6), the approach of the Industrial Tribunal should be to consider whether in exercising its discretion it was reasonable for the Applicant not to realise that he had that cause of action or, although realising it, to think that it was unlikely that he would succeed in establishing a sufficient prima facie case without evidence of comparison.That is a slightly complicated way of putting the issue but we hope it expresses the approach which we feel is desirable in this sort of situation.Mr Mabiletsa, in making submissions to us gave one extreme example which he said had occurred many years ago, of a case being brought five years after an event. That sort of approach does not appeal to us at all.It may very well be that if there is need for a comparison that that fact would take place within a matter of perhaps a few weeks. Whether the period is too long in this case or not it will be a matter for the Tribunal to consider, whether it was reasonable, there must be a period of time which is taken into account. The facts of each case undoubtedly will differ and every case must depend upon its own facts as to the clarity of the crystallisation of any cause of action.How then did this Tribunal approach this case? The findings that are material are to be found in paragraph 20 of the Decision onwards, the Tribunal say this, and this is the paragraph which is criticised by Mr Mabiletsa for the Appellant, they say this:
"In our view the only possible date for the discrimination could be 25 April 1989 when the applicant was refused promotion to supervisor. It was not necessary for anyone else to have been appointed supervisor, and although the appointment of a white man in September may well have evidential value in helping to prove the applicant's case, it was not crucial that anyone should have been promoted at all. The crucial date is 25 April when the applicant was refused promotion. After that date there could have been a change in circumstances and the respondents may have decided not to promote anyone at all; it would still have been possible for the applicant to have complained to the Tribunal if he felt that there had been racial discrimination. The act of which the applicant complains is that Mr Arnold told him that he was not the person he wanted."
Mr Mabiletsa quotes "there was only one possible date" and submits that that is failing to look at the situation because there were clearly two possible dates either the 25th April or the 4th September. He also criticises the speculation that was evident in that paragraph and says this also that if in fact the issue had been presented to an Industrial Tribunal without the comparison it is far fetched, to think that a Tribunal would have been likely to find even a prima facie case if all one had was, "I have not been given promotion" and "I am black". That was really the extent of the case at that time. He therefore submits that the approach of the Tribunal was flawed.Secondly, he points to the exercise of discretion at paragraphs 22, 23 and 24 where the Tribunal say:
"We note from the very clear evidence which the applicant gave that he felt hurt and that he had been discriminated against on the grounds of his colour from the very moment he was refused promotion.
23.The applicant also told us that he knew of his rights to complain of discrimination and that he could make such an application to an Industrial Tribunal; he was not physically prevented by illness or from any other cause from making a claim; he had been seeking advice from his union about his industrial injury; he is an articulate gentleman and obviously knows generally of his rights24.In our discretion therefore, and taking all these matters into account, we do not feel that in all the circumstances of the case it is just an equitable to allow the applicant's claim to be heard. The application therefore fails and is dismissed."The criticism of those paragraphs is that the Tribunal is looking at his knowledge of his right to complain, not at the issue which we have suggested may be a very material one namely, was it reasonable for him to wait until he had a comparison before bringing his case. In other words although there might have been more than one view as to crystallisation of the cause of action nevertheless, even if found against him that there was in fact sufficient to found the cause of action in April nevertheless, it was reasonable for him as a layman, to delay going for specific advice from his trade union or others until the comparison could be made in the September.It is often surprising on very simple facts, such as the facts of this case, that issues of considerable difficulty arise and indeed as indicated by the Commission for Racial Equality of considerable importance.In this case we have tried to analyze the problems which occur in this type of case and we hope it will be of assistance both to the Commission for Racial Equality in advising others and also to the Tribunal. We feel that the appropriate step to take here in order to do justice between the parties is that the Appeal should be allowed and the matter remitted so that it can be heard afresh before this or some other industrial tribunal as directed by the learned Regional Chairman.Whether or not this case succeeds is entirely outside any consideration that we have given it3 today. That will be a matter for the tribunal if, applying the principles as we have suggested they should be applied they decide that they have jurisdiction or not.So the Appeal is allowed and the matter is remitted to the same or any other tribunal as directed by the learned Regional Chairman.