Lindsay v Ironside Ray & Vials [1993] UKEAT 526_91_0612

EAT

Lindsay v Ironside Ray & Vials

[1993] UKEAT 526_91_0612 · 1993-12-06

MR JUSTICE MUMMERY (PRESIDENT) On 15th April 1991 Miss Jenny Lindsay presented a complaint of racial discrimination against Ironsides Ray & Vials, a firm of solicitors with whom she became an Articled Clerk in February 1989. A preliminary objection was taken that the complaint was out of time under S.68(1) of the Race Relations Act 1976. On 20th June 1991 the Industrial Tribunal held at Leicester unanimously decided that the application was out of time and that it was not just and equitable to consider the complaint out of time under S.68(6) of the 1976 Act. Full reasons for the decision were notified to the parties on 16th July 1991. On 22nd August 1991 Miss Lindsay gave notice of appeal. It has taken nearly 2 1 / 2 years for that appeal to be heard. The parties and their advisers are not to blame for that delay.

In the meantime, however, this case was complicated by further events which have given rise to a second appeal, this time by the solicitors. On 29th July 1991 Miss Lindsay applied to the Tribunal to review its earlier decision pursuant to Rule 10(1)(e) of the Industrial Tribunals (Rules of Procedure) Regulations 1985. She asked the Tribunal to reverse its earlier decision. On 8th November 1991 the Industrial Tribunal, constituted as before and held at Leicester, unanimously decided to grant the review and to vary the earlier decision by ordering that it should not be dismissed, but should be adjourned to be heard on its merits. The reasons for that decision were notified to the parties on 23rd December 1991. On 27th January 1992 the solicitors gave notice of appeal against that decision.

As a result of these appeals no progress has been made with Miss Lindsay's complaint. This Tribunal has before it two appeals, one by each side, both relating to a preliminary point whether Miss Lindsay's complaint was or was not presented in time. The result is that a relatively simple complaint has been complicated by technicalities of legal procedure. With the benefit of hindsight, it may now be possible to see that the interests of both parties would perhaps have been better served had this matter proceeded straight to an investigation of the merits of the complaint, on which we express no view. There has been no discovery of documents and no Tribunal has yet heard any oral evidence.

The complaint

Miss Lindsay presented her complaint of racial discrimination to the Industrial Tribunal on 15th April 1991. The complaint was made under S.54 of the 1976 Act. Section 68 of the 1976 Act concerns the period within which proceedings are to be brought. Section 68 provides:

"(1) An industrial tribunal shall not consider a complaint under S.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."

That time-limit explains the importance of Box 9 on the printed form of application to the Industrial Tribunal which reads:

"If your complaint is not about dismissal give the date when the action you are complaining about took place (or the date you first knew about it) ..."

There is a space for the insertion of a date. In that space Miss Lindsay inserted the following:

"ONGOING

23/1/91"

On the face of it Miss Lindsay was complaining of an act of racial discrimination which took place less than three months before she presented her complaint to the Industrial Tribunal. In those circumstances how did S.68(1) preclude the Tribunal from considering her complaint?

The Industrial Tribunal found material relevant to that question in Box 10 of the application in which applicants are asked to give full details of their complaint. Miss Lindsay set her details in an attached statement, 1 1 / 2 pages long. The essential features of Miss Lindsay's complaint can be summarised as follows. She was employed by Ironsides Ray & Vials on 10th October 1988 in the Conveyancing Department. On 1st February 1989 she signed her Deed of Articles and became an Articled Clerk. She was not told of the possible consequences of failing the Law Society exam. In June 1989 her request for financial assistance for her Law Society final examination course 1989/90 was turned down for financial reasons. On 31st July 1989 she went on the Law Society final course at Manchester Polytechnic. While on the course she made a further unsuccessful application for funding to purchase stationery and books.

After she completed the course she returned to Ironsides Ray & Vials on 1st August 1990. In October 1990 she was informed that she had failed the course. On 30th October she asked for funding for a six week revision course (£380 plus VAT). She was informed that her application was refused and that her Articles would be terminated on 31st January 1991 because she had failed her exams and because of the economic climate. Further requests for funding made on 13th November 1990 and 15th January 1991 were refused. On 23rd January 1991 she received a letter stating that her Articles were to be terminated as she had failed her exams and that, due to the economic climate, she could not be retained as Legal Assistant. About this time she discovered that Ironsides Ray & Vials had employed Darrell Crittendon on 7th January 1991 and that he was given full funding for the academic year 1991/1992 (about £2,000).

Miss Lindsay's statement concludes -

"Throughout my employment with the respondents my work was never under question. I received both favourable comments and reports from my colleagues and seniors. I therefore believe that the decision to terminate my employment and to refuse me any funding either as a grant or an interest-free loan has meant that I have been treated less favourably. I believe that this treatment is due to my race, colour, ethnic or national origin."

The First Hearing

In those circumstances the question for the Industrial Tribunal at the preliminary hearing was whether the complaint by Miss Lindsay had been presented before the end of the period of three months beginning when the act complained of was done? The Tribunal's answer to the question was that the application was out of time and it dismissed the application. There were no grounds to exercise discretion under S.68(6). That subsection provides -

"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 it is just and equitable to do so."

The other relevant provision of S.68 is subsection (7)(b) which provides that -

"For the purposes of this section

...

(b) any act extending over a period shall be treated as done at the end of that period."

At the hearing before the Industrial Tribunal on 20th June Miss Lindsay was represented by Mrs T Grenham of the Commission for Racial Equality. In the Full Reasons for its decision the Industrial Tribunal set out the facts and stated that it was satisfied that Miss Lindsay must have been told in October 1990 of the decision of Ironsides Ray & Vials that she would not be given financial assistance. The Tribunal stated that the problem facing it had "been to establish what the Applicant complains about", and concluded, in paragraph 10 of its decision, that what she was "really complaining" about was "not that she had been dismissed on [31st January] but that(a) she had not been funded for further study and

(b) that she was not given the opportunity to continue her Articles as other people have been allowed to". The Tribunal held that both of those decisions were made by the solicitors at the end of October 1990. They had been reconsidered on two subsequent occasions, but those reconsiderations did not amount to fresh decisions. "They merely affirmed what had been decided previously. Consequently, the decisions with which we are concerned occurred at the very end of October 1990. In our view, the time limit began to run from then."

It was argued on behalf of Miss Lindsay that she did not realise that she had been discriminated against until the end of January as, inter alia, she had not learnt until 25th January that Mr Crittendon had been allowed £2,000 for study. The Tribunal was not impressed by that submission and reiterated that the act complained of took place in October 1990 and that the time-limit of three months would have expired about 31st January 1991. The presentation of the complaint on 15th April 1991 was accordingly out of time.

Finally, the Tribunal dealt with the discretion to extend the time-limit under S.68(6). It stated that the discovery of Mr Crittendon's position was relevant and was a reason for the exercise of discretion to extend the time-limit, but Miss Lindsay, though she had academic qualifications and had undergone legal training, delayed for over 10 weeks before presenting her complaint. The Tribunal concluded in the final paragraph of its decision that it did not feel that it was appropriate to exercise the discretion under S.68(6).

This Tribunal has been supplied with notes made by the Chairman at the Preliminary Hearing on 20th June. According to those notes Mr Stafford, the solicitor representing Ironsides Ray & Vials, opened the matter by referring to the provisions of S.68(1), (6) and (7). His main contention was that the decision complained of was made at the end of October or early November and therefore the complaint was out of time. According to the note of Mrs Grenham's submissions she agreed that a decision was made in October not to fund further studies, though it was not communicated in writing until January when Miss Lindsay found out on 25th January that Mr Crittendon was being given a grant and not her. Her complaint was of detriment in that she was not being funded. She was also complaining about her employment being terminated. Mrs Grenham submitted that "only when she found out about Crittendon did she realise discrimination". The notes do not record any submissions made by Mrs Grenham about the Tribunal's exercise of discretion, though the notes show that Mr Stafford clearly put before the Tribunal submissions as to why it was not just and equitable to extend the period for presenting the complaint.

The Review

On 19th July 1991 Miss Lindsay applied to the Industrial Tribunal for a review of its decision. The application was made under Rule 10(1)(e) of the Industrial Tribunals (Rules of Procedure) Regulations 1985. That provides -

"A Tribunal shall have power to review and to revoke or vary by certificate under the Chairman's hand any decision on the grounds that

...

(e) the interests of justice require such a review."

In the Application for review it was asserted that it was clear from the answer to question 9. on the Originating Application that Miss Lindsay thought that the date of the action she was complaining about was 23rd January 1991, that being the date of the letter already mentioned. She believed that the three months time-limit for bringing proceedings did not begin to run until then. The complaint was that the Industrial Tribunal had failed to consider whether her mistake as to when the time-limit ran from was such that it would be just and equitable to allow her to present her complaint within three months of the date from which she believed the time-limit ran. She also complained "with regret" that her case was scarcely argued by her representative before the Tribunal.

That application was not heard by the Tribunal until 8th November 1991. In the meantime, Miss Lindsay had given notice of appeal against the Tribunal's first decision. The grounds of appeal included complaints that the Tribunal had erred in law in holding that the relevant time-limit ran from October 1990; and that the Tribunal had misunderstood the nature of the inquiry to be made on a preliminary hearing under S.68. It ought not to have considered the merits of the applications or whether the acts complained of amounted to discrimination. The Tribunal erred in purporting to make a decision on the merits of the Applicant's claim. The Tribunal also erred in failing to consider whether or not the acts alleged by Miss Lindsay amounted to acts of continuing discrimination. Finally, the Tribunal had erred in failing to extend the time-limit for bringing a complaint pursuant to S.68(6).

In the light of the Notice of Appeal Ironsides Ray & Vials attempted to persuade those acting for Miss Lindsay and the Industrial Tribunal that the application for a review should be withdrawn or, if not withdrawn, should be dismissed without more ado. It was pointed out by those representing Miss Lindsay that Mr Justice Phillips had held in Blackpole Furniture Ltd v. Sullivan

[1978] ICR 558

at 560 , that there was no impropriety in an industrial tribunal considering an application for review, even though the decision is under appeal. Miss Lindsay was not prepared to withdraw her review application. The Industrial Tribunal indicated that it would proceed to deal with the application which was fixed for hearing on 8th November 1991.

The decision made at that hearing has given rise to the second appeal before this Tribunal, an appeal by Ironside Ray & Vials against the unanimous decision of the Tribunal to grant the application for review and to vary the earlier decision by providing that the application should not be dismissed but should be adjourned to be heard on its merits.

The Tribunal no doubt took that course in the belief that it would in the best interests of the parties to review the decision. That course led to a contested hearing and ultimately brought into being a second appeal to this Tribunal. Ironsides Ray & Vials submitted to the Tribunal that it had no jurisdiction to hear the review, that there were no grounds for review and that the original decision was not unreasonable. These submissions were rejected by the Tribunal. It held that it had jurisdiction to hear the review by reason of a "procedural occurrence" which had a substantial effect on the outcome of the proceedings. The "procedural occurrence" referred to was that Miss Lindsay "did not have a fair opportunity to present argument on the point of substance in the case". That is explained in more detail in the Full Reasons for decision which referred to the fact that Miss Lindsay was represented by Mrs Grenham of the CRE. It was observed that Mrs Grenham was not a lawyer and that "it was apparent that she was out of her depth". It observed that the major problem at the hearing lay in defining on what Miss Lindsay's complaint centred. In an important part of the decision the Tribunal said (at paragraph 8) -

"The issue of the exercise of discretion was not dealt with by Mrs Grenham in her submission. The date of the respondent's decision and its relevance was dealt with in argument, but we are satisfied that the approach to our exercise of discretion was not dealt with by Mrs Grenham."

For those reasons the Tribunal concluded that Miss Lindsay had not had a "fair opportunity to present an argument on a point of substance" and that the Tribunal failed to identify to Miss Lindsay's representative the way in which it was considering exercising its discretion following the decision that the date of the Respondent's decision fell in October 1990 rather than in January 1991.

Ironsides Ray & Vials were dissatisfied with that decision to review. Full reasons for the decision were sent to the parties on 23rd December 1991 and on 27th January 1992 Ironsides Ray & Vials gave notice of appeal from the review decision. The grounds of appeal were that the Industrial Tribunal misdirected itself in law as to the proper test to be applied in deciding whether to grant a review of its earlier decision. The Industrial Tribunal also erred in law in taking into consideration the quality of representation afforded by Miss Lindsay's representative at the earlier hearing and in relying on shortcomings in that representation. There are other matters of detail in the Notice of Appeal which it is not necessary to deal with on this hearing.

Conclusions

The parties' advisers have dealt with their respective client's cases with great thoroughness. Their arguments have been carefully and conscientiously considered by the Industrial Tribunal on the two hearings. On the hearing of the appeals before this Tribunal we have been assisted by a detailed 18-page Skeleton Argument from Ironsides Ray & Vials and by a 9-page Skeleton Argument in support of Miss Lindsay's case. We intend no disrespect to the parties, their advisers or to the experienced Tribunal when we state that the question whether this complaint was presented out of time or not is, in law, a simple one which has become obscured by unnecessary detail. Although, by agreement between the parties, we heard the appeal against the review decision first, we deferred our decision on that appeal until we had heard argument on the appeal against the first decision.

Our conclusions on both appeals can be stated shortly:

(1) The only question which it was necessary for the Industrial Tribunal to decide at the first hearing was whether Miss Lindsay's complaint was presented to the Tribunal before the end of the period of three months beginning with the 23rd January 1991. That was stated by Miss Lindsay in Box 9 on the form of application to be the date "when the act complained of was done".

(2) As explained in the attached statement the 23rd January was the date on which Miss Lindsay received a letter from Ironsides Ray & Vials stating that her Articles were to be terminated as she had failed her exams and that due to the economic climate she could not be retained as legal assistant. The addition of the word "on-going" over the date 23/1/91 in Box 9 indicated that Miss Lindsay was complaining of discrimination which may have started before that date and persisted after it. In those circumstances the answer to the point under S.68(1) was that the Industrial Tribunal was not prima facie prohibited from considering her complaint. She had presented a complaint on 15th April 1991 which was before the end of the period of three months beginning with 23rd January 1991. It was neither necessary nor appropriate on the preliminary hearing in this case for the Industrial Tribunal to enquire further into the matter: for example, by enquiring whether there were acts complained of at an earlier date or whether any of the acts extended over a period and whether it was just and equitable, in all the circumstances of the case, to consider any such complaints which were out of time. Those were all matters more appropriately left either to a subsequent interlocutory hearing, such as a request for particulars or for discovery, or to the hearing of the complaint when the merits of the matter would be fully investigated. The Tribunal erred in law in inquiring into the complaint in detail and deciding that the whole matter was out of time.

(3) There may be some cases in which it is appropriate at a preliminary hearing to make a ruling on the question whether acts complained of as racial discrimination are out of time. Such a course will be appropriate where a ruling at that stage will enable the respondent to know the substantive case against it and where such a ruling will shorten the proceedings overall. The decision of this Tribunal in Catering & Allied Services (London) Ltd v. C Howell on 30th July 1993 (Appeal No.

EAT/365/93

) is an example of a case of that kind. The Originating Application contained a long list of allegations of racial discrimination stretching over a period of three years. The respondent company applied for a preliminary hearing in order to identify which of the numerous matters of complaint in the Originating Application which occurred more than three months before the presentation of the application were matters which it would be just and equitable to consider as substantive complaints in the exercise of the Tribunal's discretion under S.68(6). There were 15 or so complaints of discrimination of different kinds. The company's application for a preliminary hearing was refused. This Tribunal allowed the appeal and substituted a direction that the issues arising under any application made by the applicant for the Industrial Tribunal to exercise its discretion in his under S.68(6) should be heard before the substantive hearing of the Originating Application. In that case there were strong grounds for holding that the respondent company was entitled to know what the substantive issues were and for shortening the overall proceedings by identifying substantive issues before the full hearing.

(3) There are no such considerations in the present case. The narrative account of Miss Lindsay's complaint in Box 10 of the Originating Application clearly limits the time span of discrimination to a relatively short period from 30th October 1990 to 31st January 1991. Even within that period the complaints made may be part of a continuing matter affecting the termination of her Articles and the refusal of funding. The Tribunal at the full hearing will be in a better position than any Tribunal at a preliminary hearing to decide questions arising under Sections 68(1), 68(6) and 68(7)(b). In the present case the preliminary hearing procedure ran the risk, as illustrated by what has in fact happened, of becoming a premature and inappropriate investigation into the merits of the entire case.

(4) The Industrial Tribunal erred in law in holding that it had jurisdiction to grant a review of the earlier decision and to vary it. The power to grant a review on the grounds "that the interests of justice require such a review" is in very wide terms. It is, however, a power which should be cautiously exercised. As was observed by Phillips J. in Flint v. Eastern Electricity Board [1975] 10 ITR 152 at 160 , the interests of justice include not only the interests of the person seeking a review, but also the interests of a person resisting a review on the grounds that "once a hearing which has been fairly conducted is complete, that should be the end of the matter". There are also the interests of the general public in finality of proceedings of this kind. Mr Justice Phillips said at p.161 that "It should only be in unusual cases that the appellant, the applicant before the Tribunal, is able to have a second bite at the cherry". In the present case, it is agreed that judicial guidance on this point can be gathered from the decision of the EAT in Trimble v. Super Travel Ltd

[1982] ICR 440

. In that case an Industrial Tribunal held that the dismissal was unfair, but refused to award the applicant compensation on the ground that she had failed to mitigate her loss. The applicant complained that she had not been given an opportunity to address the Tribunal on the question of mitigation. She applied for a review. The Industrial Tribunal refused a review, but the EAT allowed the applicant's appeal. Giving the judgment of the Appeal Tribunal, Mr Justice Browne-Wilkinson said at p.442E:

"As it seems to us the fundamental question is whether or not the industrial tribunal's decision that the employee had failed to mitigate her loss was reached after she had had a fair and proper opportunity to present her case on the point, being aware that it was a point which was in issue. We do not think that it is appropriate for an industrial tribunal to review their decision simply because it is said there was an error of law on its face. If the matter has been ventilated and properly argued, then errors of law of that kind fall to be corrected by this appeal tribunal. If, on the other hand, due to an oversight or to some procedural occurrence one or other party can with substance say that he has not had a fair opportunity to present his argument on a point of substance, then that is a procedural shortcoming in the proceedings before the tribunal which, in our view, can be correctly dealt with by a review under rule 10 of Schedule 1 to the Industrial Tribunals (Rules of Procedure) Regulations 1980, however important the point of law or fact may be. In essence, the review procedure enables errors occurring in the course of the proceedings to be corrected but would not normally be appropriate when the proceedings had given both parties a fair opportunity to present their case and the decision had been reached in the light of all relevant argument."

In a later passage the judgment referred to a decision "reached after there has been procedural mishap".

(5) In our judgment, the Industrial Tribunal, in granting the review sought by Miss Lindsay, misapplied the provisions of Rule 10, as interpreted in the Trimble case. The facts in this case cannot be properly viewed as a "procedural mishap" or "procedural shortcoming", or "procedural occurrence" of a kind which constitutes a denial to a party of a fair and proper opportunity to present a case. The facts, as they appear to us, are that Miss Lindsay was represented at the first hearing by Mrs Grenham. The solicitor representing Ironsides Ray & Vials clearly raised before the Tribunal in his opening, as well as in his closing remarks, that there was an issue of extension of time under S.68(6). The Tribunal was aware of this and made a decision on the point. The failure of Mrs Grenham to make any submissions on the point and the failure of the Tribunal to identify to Mrs Grenham the way in which it was considering its exercise of discretion did not, in our view, amount to denial of a fair opportunity to present an argument on a point of substance. The fact that the Tribunal thought it necessary, in its review decision, to make criticisms of Mrs Grenham's ability indicated that the reason for granting a review was that, in the view of the Industrial Tribunal, Miss Lindsay's case was not properly argued as a result of Mrs Grenham's shortcomings. Failings of a party's representatives, professional or otherwise, will not generally constitute a ground for review. That is a dangerous path to follow. It involves the risk of encouraging a disappointed applicant to seek to re-argue his case by blaming his representative for the failure of his claim. That may involve the Tribunal in inappropriate investigations into the competence of the representative who is not present at or represented at the review. If there is a justified complaint against the representative, that may be the subject of other proceedings and procedure.

It is thus our view that the Industrial Tribunal erred in law in granting a review under Regulation 10(e).

THE Order

For these reasons we propose to make the following order:

(1) The appeal by Miss Lindsay against the decision of 20th June 1991 will be allowed.

(2) The appeal by Ironsides Ray & Vials from the decision of 8th November 1991 will be allowed.

(3) The Originating Application should now proceed to be dealt with as expeditiously as possible on its merits. Both parties seek a direction that a differently constituted Tribunal should hear the application on its merits. That is a matter which we leave to the decision of the Regional Chairman.

Finally, we should mention that we have been informed by counsel that there may be further interlocutory hearings concerning, for example, an application by Miss Lindsay to amend her Originating Application to make a claim of unfair dismissal. This is obviously not the appropriate time or place at which to deal with such an application. We express no views on its outcome.