Berry v Ravensbourne Trust [1993] UKEAT 149_93_2306

EAT

Berry v Ravensbourne Trust

[1993] UKEAT 149_93_2306 · 1993-06-23

JUDGE N HAGUE QC:

Mrs Neelu Berry is of Indian origin. She formerly was employed by the Bromley Health Authority as a Community Developments Pharmacist for mental health grade D and she was based at Farnborough Hospital. The responsibilities of the Bromley Health Authority have now been taken over by the Ravensbourne National Health Service Trust, which is therefore the Respondent to this appeal.

Mrs Berry was given notice on the 4th January 1992 that she was being made redundant and her employment, in fact, terminated on the 31st March of that year. In the meantime, on the 14th March, she had made an application to an industrial tribunal alleging unfair dismissal. The basis of her claim was that she had been unfairly selected for redundancy because other staff had been retained with less service in the post and she had not been made an offer of alternative employment. That is a fairly straightforward claim. She did not, at that point, allege any racial discrimination.

For the purposes of her claim she was advised by her Union and by somebody from the Citizens Advice Bureau, and later she took advice from the Commission for Racial Equality. Eventually, on the 2nd November 1992 she wrote to the Industrial Tribunal asking to be able to amend her claim by adding a claim of racial discrimination. That of course was some time outside the three month period is laid down by Section 68(1) of the Race Relations Act 1976 by which, as a general rule, a claim under that Act must be brought. The discrimination, if there was discrimination, occurred clearly either on the 4th January or, at the latest, by the 31st March 1992 and her claim was made way outside three months from the later of those dates.

However, under Section 68(6) it is provided:

"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."

It is clear that those are very wide words giving an industrial tribunal a wide discretion. In the normal case there would be no power for this Appeal Tribunal to interfere with an exercise by an industrial tribunal of that discretion. If authority for that is wanted; it is to found in Hutchison v. Westward Television

[1977] ICR 279

in which Phillips J said this at page 282E:

"Because it is such a wide discretion conferred upon an industrial tribunal, the task which an appellant has in such a case is a heavy one. Really he must show, if he is to succeed upon appeal, that the industrial tribunal demonstrably took a wrong approach to the matter, or that they took into account facts which they ought not to have done, or that they failed to take into account facts which they should have done, or, as a last resort which is always open upon an appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed tribunal could have reached it."

The Industrial Tribunal in this case, having found that the application for an amendment was outside the three month period, decided that it would not be just and equitable to extend the time and therefore refused the amendment. As we have said, usually it would be impossible for us to interfere with that exercise of their discretion. However, in this case there are additional factors. At the hearing Mrs Berry appeared in person and she gave evidence. But there were incorporated in her evidence some fairly lengthy written statements she had made, which go into a good deal of detail into the circumstances in which she had obtained the post that she had, the background to her being made redundant, what happened in that respect, who the other person was who was preferred over her and who was retained. They go also into a great deal of detail also about who she took advice from and what was said to her in respect of her claim to the Industrial Tribunal and in respect of the possibility of a claim for racial discrimination. Those are matters which the Tribunal obviously took full account of.

In their Reasons for the decision the Tribunal go shortly into the background of the matter and they do not refer to the whole of the evidence. There are two matters which have caused us a good deal of concern which they do not mention. It is impossible to know whether and to what extent they took them into account.

The first arises in this way. It is common ground between the parties, freely admitted by Mr Barry on behalf of the Health Trust, that in the course of her evidence Mrs Berry did inform the Tribunal that a Councillor Samuel Coker of the London Borough of Greenwich had telephoned the Industrial Tribunal and asked that Mrs Berry's application should be amended to include a claim for racial discrimination. What then happened was, apparently, that the Chairman looked through the file and decided that there was nothing in it about that, and no reference to it is made in the Reasons. Mr Coker has sworn what appears to be a statutory declaration or an affidavit, saying that he did telephone and that he says also this:

"I had in turn proposed to confirm it in writing which I did."

This Appeal Tribunal has made enquiries of the Ashford Industrial Tribunal and it does appear that in the file there is a record of Councillor Coker ringing up the Tribunal on the 26th August 1992. But what he is reported by the person who took down the message as having said is at some variance with what he has put in his Affidavit. At that time Mrs Berry was being represented by Mr Parker, from her Union, and the message reads:

"Has Mr Parker asked for RRD to be added."

and it goes on to deal with that. It looks really as if all the Councillor did was to ring up and ask what was happening and whether Mr Parker had made application, and we really do not think that too much can be made of that. It seems to us that Mr Parker was acting then as Mrs Berry's agent and had conduct of the matter on her behalf and that it simply is not enough for some outside third person, without being the person named as to the applicant's agent, to come along and ask for an amendment to be made. If that had stood alone, we do not think that that particular matter would have justified us in interfering in any way with the decision of the Tribunal.

However, there is a more important matter which arises in this way. Under the Health Authority's redundancy procedure it is expressly provided that anybody who is made redundant would, where practicable, be given preferential consideration for suitable vacant posts within the district. It is not a guarantee of appointment, but it does indicate that a person who is made redundant is to be given the opportunity, of being selected for another post. Thus, what is effectively an obligation on the part of the Health Authority, extends to the termination of the employment and also we were told (and again this was very properly accepted by Mr Barry on behalf of the Health Authority) that it also extends in practice to a further period of some four weeks after the termination of any employment.

On the 14th April an advertisement was made by the Health Authority. It is headed "Job Spot No.11 14th April 1992", with a closing date of 28th April. Various jobs are there specified, and one of the jobs was a Grade B or Grade C Pharmacist at Bromley/Beckenham. It seems plain that the Health Authority must have known about that a little time beforehand, and almost certainly would have known about it before Mrs Berry's employment came to an end. Moreoever, in any event it was, by its very date of 14th April, within the four week period we have referred to. But Mrs Berry gave evidence to the Tribunal that she had not been offered that job. She had not been made aware of that vacancy, which may or may not have been suitable for her, as she should have been and she only became aware of it at the end of August when she received a copy of it from her Union representative, Mr Parker. If there was racial discrimination, it seems to us that it is well arguable that the failure of the Health Authority to notify her of that vacancy would have been an act of discrimination. The three month period would start running from the date, that is the 14th April, or sometime round that date, and she is well outside that; but the important thing is that she did not in fact become aware of it, on her evidence, until very much later. This particular point, to be fair to the Industrial Tribunal, does not seem to have been pressed in any great degree. It is only mentioned really at the end of one of Mrs Berry's statements and does not seem to have formed any part of the consideration of the Industrial Tribunal. They make no mention at all of it in their Reasons for their decision. We are bound to say we think that this is quite an important point which the Tribunal ought to have considered and it seems to us from their Reasons that they must have failed to do so. It is not sufficient to say that it was not pressed before them because, after all, as was pointed out in the course of the argument, industrial tribunals are supposed to be fairly informal places where lay people can go and, be helped to a certain extent by the tribunal before whom they appear. It seems to us that this particular matter was not really dealt with and considered in the way that it should have been.

That being so, we think that this is a case where we can look at the matter again, because the Tribunal has failed to take into account facts which they should have done. That being so we think we can interfere, if we think fit, with the exercise of the discretion of the Tribunal. Of course, the mere fact, that the time the application for an amendment was made was within three months of the Applicant becoming aware of the discrimination is not sufficient. We have to look at the matter in the round. There was a certain delay after she had become aware of the advertisement. But, on the other hand, by this time it is clear from Mr Parker's involvement and Councillor Coker's involvement that she was considering and thinking about a racial discrimination claim. More importantly, we think, the facts on which Mrs Berry relies as regards her racial discrimination claim, overlap with and are very much the same as those which are to be determined in her unfair dismissal claim. We were told indeed that that claim is due to be heard next month. So it is not as if it is a completely fresh claim coming out of the blue. It is very largely another way of putting a claim on the facts which are, in any event, having to be determined.

In those circumstances, we think that it is just and equitable to allow this late amendment, and we think that in the circumstances we can and should substitute our own decision in that respect for that of the Tribunal. For those reasons we allow this appeal and grant leave to make the amendment sought.