Charles v Vandervell Ltd [1993] UKEAT 152_92_2710

EAT

Charles v Vandervell Ltd

[1993] UKEAT 152_92_2710 · 1993-10-27

"as I do not have any help in presenting the facts of my claim... I cannot cope at this level on my own so I have to drop my claim."

We have, however, looked at the papers in each of these two appeals with some care and we have thought it right to satisfy ourselves that there really was no prospect of either of these two appeals succeeding and that is indeed the conclusion that we have reached.

In the Vandervell case there was a succession of Originating Applications, three in number, brought by Mr Charles against his employers Vandervell Ltd. The third one is the one in respect of which this appeal is brought. That is the one in relation to unfair dismissal and the issue as we understand it that Mr Charles seeks to raise on his appeal, is that the Industrial Tribunal when it made the award that it did, wrongly excluded benefits that Mr Charles had been enjoying before the date when he was dismissed. His employment terminated on 4 March 1991 and he had previously presented Originating Applications claiming racial discrimination against him; one on 26 November 1990 and the other on 23 January 1991 and it was part of Mr Charles' case, as we understand his appeal, that the result of his going to the Industrial Tribunal on those matters was to lead his employers to reduce his overtime and other benefits that he had previously enjoyed. Mr Charles complains on this appeal that his pay for the purposes of assessing the compensatory award in respect of his unfair dismissal on which he succeeded, unlike the racial discrimination application which failed, should have included the higher benefits and rates of remuneration that he had enjoyed some little time before he was actually dismissed.

That seems to us to be misconceived, partly because in fact the Industrial Tribunal took as his take-home pay precisely what he had put in his own Originating Application, that is to say £160 per week but more importantly, as a matter of general principle, it is the remuneration at the date of the dismissal that has to go into the equation to calculate the compensatory award and if there had been a diminution of his remuneration as a result of what happened before his dismissal, that would have been the subject matter of relief if his earlier originating applications claiming racial discrimination had succeeded but in fact they failed and so he did not get that relief. It is not, in our view, possible to argue that he should get it so to speak by the back door, in the assessment of his compensatory award for unfair dismissal.

For those reasons that appeal will be dismissed.

The appeal in relation to the proceedings against Mr Dillon is a good deal simpler. This is a straight issue as to the time at which the Originating Application was presented. The time limit is set out in section 68 of the Race Relations Act and it should be mentioned in passing that the appeal here is of course from an Industrial Tribunal's decision and Industrial Tribunals only have jurisdiction in relation to claims under Part II of the Race Relations Act, that is to say in the employment field. Claims regarding discrimination which is prohibited under Part III of the Act do not go to Industrial Tribunals and that means that the extension of time which is granted by section 68(3) where there has been an application for assistance under section 66 to the Commission, does not apply because that is not relevant to Industrial Tribunal proceedings.

So far as Industrial Tribunal proceedings in respect of claims under Part II of the Race Relations Act 1976 are concerned, the time limit under subsection (1) is three months beginning when the act complained of was done, but there is the general jurisdiction under subsection (6) which 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."

In this case the Industrial Tribunal looked at the facts, concluded that the Act complained of occurred on 16 January 1991 (that was a refusal to represent Mr Charles in the proceedings against his employers Vandervell Ltd) and that is a pure question of fact in respect of which an appeal would not lie to this Tribunal. The Originating Application was presented on 20 September 1991 and so it was over eight months after the Act complained of. That means that it was over five months late and the Industrial Tribunal looked at the circumstances; held it was not just and equitable to extend the time and we can see no basis upon which one could say that an error of law was committed by it in doing so.

Finally, we have to add that we have had very considerable difficulty in understanding exactly what the basis of Mr Charles' appeal in this case was. His Notice of Appeal is very difficult to understand but we have tried to cast out the net rather wider and see whether there are, in our view, any grounds for appeal whether or not they are comprehended in his Notice of Appeal but we failed and that appeal too falls to be dismissed.