Post Office v Hogan [1992] UKEAT 117_92_1304

EAT

Post Office v Hogan

[1992] UKEAT 117_92_1304 · 1992-04-13

MR JUSTICE KNOX: The Post Office appeals from a decision of the Industrial Tribunal sitting London (South) on the 2nd December 1991, and sent to the parties on the 16th January 1992 whereby the Tribunal unanimously held that it had jurisdiction to hear the Applicant's complaint. The Applicant was a Mr Hogan who has been a member of the Post Office staff at Mount Pleasant Post Office for a considerable number of years. He gave his date of employment as starting in 1966 in his Originating Application.

The Originating Application in the first of the boxes on the printed form, under the question, "Say what type of complaint(s) you want the tribunal to decide" said this:

"Unfair treatment and not taking action against staff for racial insults."

The "full details" box which is number 10 contains this:

1) a supervisor allowed staff to call me racial names for an excessive long period and disciplinary action was never taken.

2) It was reported to management and they ignored my complaint and my witnesses.

3) The supervisor involved manipulated me in the presence of staff and he allowed staff to make a mockery of me.

4) When it was decided that I should be the patrol officer by management the supervisor involved dismissed me and brought on the junior officer."

That Originating Application was presented on the 27th December 1990. There were immediately, when the Post Office heard about the matter which for unexplained reasons was not for seven months thereafter, requests from the Post Office for further and better particulars of the Originating Application, asking specifically when it was alleged the matters complained of occurred. Most of the trouble that has been experienced subsequently in attempts to define the issues stem from the somewhat various ways in which particulars have subsequently been given of those evidently general complaints in the Originating Application. They do fall into two very distinct categories which it is important, in our view, to try to keep separate. One is, acts of fellow employees, such as racially abusive language, and the other is failures by the Post Office to investigate complaints by Mr Hogan of this abusive conduct by fellow employees which it emerges Mr Hogan claims is in itself, that is to say the investigation, tainted by racial discrimination.

There is, in our view, to be discerned in the particulars that have been given, a regrettable tendency to ally the two. The first lot of particulars were given in answer to that initial letter of the Post Office. The reply was on the 8th August 1991 and it includes this:

"The matters complained occurred between May and September 1989 whereupon my client immediately complained to his superiors and asked them to do something about his complaints.

My client approached the following persons [and then a list of his superiors are listed]. These persons are alleged to have promised Mr Hogan, on numerous occasions, that something would be done about his complaints.

In the belief that his complaints were being taken care of, Mr Hogan took no further action. It was not until he received a letter dated 2nd October, 1990 from Mr D W Thomas stating that after enquiries were carried out into his complaints, it had been concluded that there had been an unfortunate clash of personalities, that Mr Hogan decided to take the matter to the Industrial Tribunal."

The next attempt to obtain relevant particulars was an Order of the Industrial Tribunal on the 29th August 1991 that just asked for the date or dates of the alleged acts of discrimination and that again got a compendious reply:

"The alleged acts of discrimination occurred between May and September 1989 and although the applicant complained immediately to the respondents nothing was done until he received a letter dated 2nd October 1990 stating that there was no racial discrimination but a clash of personalities."

There again no distinction was drawn between the two categories that we have sought to identify earlier. There was then a decision that there should be a Directions Hearing on the 1st October 1991 when the parties were given notice that this meeting would be heard:

"to define the triable issues and to give such other directions as are necessary"

That meeting was duly held and as a result detailed particulars were sought, which it is not necessary at this stage to read out in full, of the four paragraphs that I have read in full from Box 10 on the Originating Application and those particulars were given.

At the same time, at that Directions Hearing, there was directed to be heard as a preliminary issue the stand that the Post Office had throughout taken from an early stage, that the complaints brought by Mr Hogan were out of time. That is a reference to Section 68 of the Race Relations Act 1976, which I will call "the Act". Section 68 starts at subsection (1) with a negative provision:

"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."

There is a discretion of a very wide nature in subsection (6) to extend time. It 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."

Subsection (7) amongst other things tackles the difficult question of deciding when an inactivity, as opposed to an act, is to be treated as having occurred for purposes of setting the time limit into operation. Reading the relevant paragraphs it provides as follows:

"For the purposes of this section -

. ................................

(c)a deliberate omission shall be treated as done when the person in question decided upon it;

and in the absence of evidence establishing the contrary a person shall be taken for the purposes of this section to decide upon an omission when he does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done."

That hearing to decide the question of jurisdiction in relation to time is the one at which the decision was reached from which this appeal is brought.

The Industrial Tribunal having quoted the relevant sections of the Act, in particular in Section 68(6) said this in paragraph 2:

"The matter came before us on this preliminary issue. During the course of argument we decided that it was necessary to define the triable issue. Mr Zuke on behalf of the respondents admitted that the triable issue was whether or not Mr Hogan had suffered racial discrimination by reason of the alleged conduct of casuals in 1989, but Mr Wiltshire [who appeared for Mr Hogan] submitted that the triable issue was not that but what the applicant Mr Hogan was complaining about was that it was the manner in which the enquiry into his complaints was conducted by the respondents that racially discriminated against him, because the respondents treated him differently from a white manager and an Asian manager who had made similar complaints. Although there is no doubt that case is not set out with clarity in the Originating Application, we found that Box 1 did in the very vaguest terms refer to that matter. We permitted Mr Wiltshire to amend the Originating Application to add the following in Box 10.

`The respondent discriminated against the applicant contrary to Section 1(1)(a) and Section 4(2)(c) of the Race Relations Act 1976, in that they failed to adequately investigate a complaint of racial abuse against him by other employees and failed to take any action against those employees. Whereas when a similar complaint was made by a white manager, and an Asian manager, the employees concerned were dismissed. The respondents treated the applicant's complaint in the way that they did because of the applicant's racial or ethnic origin.'"

It is evident to us that the amendment was allowed to permit Mr Hogan's case regarding the way in which his complaints about the alleged conduct of casuals was to be dealt with.

We then find in the Industrial Tribunal's decision a statement of what had, it was said, in fact happened, in relation to that complaint. It was in the context of a submission by Mr Zuke for the Post Office, that there had been an inquiry and that Mr Hogan had been satisfied by that inquiry on being assured that the casuals who had insulted him in the summer would not be re-employed the following Christmas, that is the Christmas of 1989. In fact they were, and on the 5th December 1989 Mr Hogan saw Mr Thomas and complained about the employees being re-employed and asked that there be a further investigation. Mr Zuke had to concede that indeed there was a further investigation and the results of that investigation were known to Mr Hogan orally about the end of July 1990. However, Mr Hogan, as he was entitled to, insisted that he received confirmation of the result of the inquiry in writing, this he did by a letter dated 2nd October 1990. They decline to quote the whole of that letter because it goes to the main issue and finally they say:

"Mr Hogan's complaint is that those enquiries were carried out in a racially-biased manner. Mr Zuke submitted that he first knew the result of the enquiry at about the end of July 1990 and therefore his Originating Application was outside the 3 month period permitted by Section 68(1) of the Act."

The conclusion of the Industrial Tribunal is this:

"We are satisfied that Mr Hogan was entitled to wait for the written confirmation. That he received on 2 October 1990. Therefore his Originating Application is in time. If we are wrong in that, and the matter came to his notice as we have found, about the end of July, and he should have made a complaint to the Tribunal within 3 months of being told orally that no racial bias was found by those enquiring into his complaints, then having regard to sub-section 6 of Section 68 we in this case would consider it just and equitable to extend the time to allow him to present the complaint. We find that we have jurisdiction to hear his complaint."

That concludes the decision.

It is clear to us that that complaint which the Tribunal held that it had jurisdiction to hear was the one in connection with which they had been relating the submissions on either side and was the one that concerns the complaint that Mr Hogan made on the 5th December 1989 and the subsequent investigation that the Post Office made. It is not a complaint, as we see it, dealing with any other matters anterior to that complaint, although it may of course be that the factual background extends back before the 5th December 1989 and includes events earlier than that and in particular, it may include events between May and September 1989 which was given in the earlier Further and Better Particulars that Mr Hogan, through his Solicitors, gave of his complaints.

There are three points taken in this appeal, first that it was wrong for the Industrial Tribunal to allow the amendment that it did allow. It was submitted to us that this amended case was really a new case and that there was no mention of a similar complaint made by a white manager and an Asian manager being treated in a different way by the Post Office in any of the earlier documents in the proceedings. I emphasise the proceedings because it appears that a questionnaire that in the usual way was served under the Act did mention the white and Asian managers but it is entirely accurate to say, as Mr Greening did on behalf of the Post Office, that in spite of repeated particulars that were given and in spite of the amount of detail that there was, which was not great in the Originating Application, there is nothing to indicate this particular complaint which was included in the leave given to amend to raise this particular complaint.

The way in which the Industrial Tribunal dealt with the matter was to construe Box 1 of the Originating Application, and in particular we assume, not taking action against staff for racial insults. We have come to the conclusion that so far as the amendment is concerned, although this case may have been near the boundaries of what is permissible in the way of producing a new case at a fairly late stage after several attempts had been made to define the original triable issues, it was something that was within the ambit of discretion of the Industrial Tribunal to permit the way in which this case was put. Whether or not it could have been conducted on these lines within the original formulation of the matter we very much doubt, but it is plainly part of the function of the Industrial Tribunal to seek to define accurately the real issue between the parties and the fact that an earlier attempt had been made at the Directions Hearing at the outset of October of last year does not, in our view, preclude the Industrial Tribunal on this particular occasion in December of last year from redefining how the issue arose and we are therefore not minded to treat this decision as so erroneous that it cannot stand on that score.

Granted therefore that the amendment is a permissible one, one turns to the next point which was raised on the appeal and that was that there was an erroneous identification of the time at which time started to run for the purposes of the 3 months permitted in Section 68(1) of the Act. It will be recalled that the Industrial Tribunal identified the 2nd October 1990, the date of the written confirmation of the investigation yielding a negative result as the time when the 3 months started to run. The only way in which, as we see it, that can be justified as a matter of law is that it falls within the concluding words of subsection (7) of Section 69 namely the period expiring within which the person who is alleged to discriminate might reasonably have been expected to do the omitted act if it was to be done. The omitted act is of course to do something about Mr Hogan's complaint, and we did not understand Mr Wiltshire at the end of the day to dissent from the proposition that this was a case of omission.

In our view, the Industrial Tribunal was indeed wrong in law in identifying the 2nd October as that time because if the test is the time within which the Post Office might reasonably have been expected to do the omitted act it can, in our view, hardly have extended longer than the date on which an unequivocal oral communication was made that there would be no further conduct of any investigation. It will be recalled that what happened was that Mr Hogan was told in July 1990 that there was no further action to be taken but the written confirmation only arrived in October 1990.We do not think that it can be put on the basis that the Post Office is precluded from saying that a reasonable period had not expired by July, merely on the basis that it took them some 10 weeks or so to confirm their firm decision in writing. It is not necessary to go further into that aspect of the matter because the Industrial Tribunal itself specifically contemplated that they might well be wrong in their identification of the 2nd October as the date when the three months started to roll and on that footing they said, and this raises the third issue, that they were prepared to extend time under subsection (6). The issue there is whether there is any material upon which they could come to that conclusion, because Mr Greening submitted to us that there was no evidence at all as to why the Originating Application was not brought within the three months from the end of July 1990 when the oral communication of the completion of the enquiry was made. Of course three months from that takes one almost a month beyond the 2nd October so that there was the whole of the month of October, give or take a day or two, in which Mr Hogan could have taken steps had he been so minded. It is submitted to us there is no record of any oral evidence having been given to the Industrial Tribunal and only some documentary material so that there was nothing upon which the Industrial Tribunal could come to the conclusion that it would be just and equitable to extend time.

We are not satisfied that that is an exhaustive and adequate analysis of what happened. I have read already practically the totality of the Industrial Tribunal's decision and need not repeat it but what there was, was a lengthy rehearsal of the chronology in this matter and although we accept that, in the generality of cases, it is indeed necessary for there to be specific evidence regarding the reason for an application being out of time, in this particular one it seems to us that the chronology itself is susceptible of providing that reason. The top and the bottom of it is that the Post Office moved extremely slowly in this matter and the complaint which appears to have been made in December 1989 took over 7 months to investigate, the confirmation of the results of that inquiry took the best part of two and a quarter months to reach Mr Hogan and in the context of that extremely slow process it seems to us not beyond the bounds of the powers of an Industrial Tribunal to regard it as just and equitable that Mr Hogan should be allowed longer than the Act on a strict construction requires.

It is not of course for us to substitute our views for those of the Industrial Tribunal. We have to be satisfied before we interfere with their decision that there was no material upon which they could come to the conclusion which they did reach, and that is not a conclusion that we are prepared to reach. That is not an end to the matter because the entirely laudable attempts that have been made to date to define the issues that are to be dealt with by the Industrial Tribunal do not seem to us to have reached a very satisfactory conclusion because the amendment that was allowed was put in in addition to what was in the Originating Application whereas the analysis of the claim that the complaints were out of time is only apt to deal with the complaint that Mr Hogan made, it appears in December 1989, about the re-employment of casuals who had previously insulted him. There is no decision at all with regard to the other matters of complaint that were identified in the Originating Application and as we read this Industrial Tribunal's decision there was no decision that any of those, in so far as they were separate from what Mr Hogan was complaining about at the end of 1989, were in time. It therefore seems to us to follow, as is indicated in the Notice of Appeal, that what should have happened in this case was to substitute the amended matter for what was in the Originating Application because the task upon which the Industrial Tribunal embarked in the decision under appeal was to define the triable issue, and in the course of that they allowed the amendment that I have read. We infer that there was no decision that any of the other matters were in time and it does seem to us to be unarguable that any matter that was not covered by the complaint about the way in which the investigation was conducted in the first six months of 1990 was in time. It was all such a long way out of time, the three months allowed under the Act, that any such earlier matter must have been out of time. We therefore take the view that there should have been a substitution of the amendment for the original complaint because it sets out what that original complaint, in so far as it was not out of time, consisted of.

Accordingly we propose to allow the appeal to the extent of varying the order permitting the amendment, to one permitting the amendment as a substitution for, rather than an addition to the existing matter in Box 10 of the Originating Application. Moreover, it is essential in our view, that the parties should know exactly what this amendment really means and we propose in exercise of our power in paragraph 21 of the 11th Schedule of the Employment Protection (Consolidation) Act 1978 to direct the giving of these relevant particulars to avoid the necessity for further correspondence and if necessary, application to the Industrial Tribunal. The matters that in our view need particularising may well be there in the particulars that have already been given, but it is desirable that they should be put in the proper framework of the complaint as it now will be, namely in the form of the amendment allowed by the Industrial Tribunal. The matters that need particularising in our view, are first of all, what the complaints were; secondly, to whom they were made; thirdly, who were the other employees who had committed the acts of racial abuse, and fourth and fifth, who were the white manager and the Asian manager identified and what were the dates of the occasions on which the similar complaints made by those managers were dealt with in the way in which the Applicant alleges. Armed with those particulars it seems to us that the proper investigation can be conducted at the hearing.