Mansha v City Of Bradford Metropolitan Council [1993] UKEAT 750_92_2007

EAT
Mansha v City Of Bradford Metropolitan Council
[1993] UKEAT 750_92_2007 · 1993-07-20

JUDGE J HULL QC:

This is an appeal to us from a decision of the Industrial Tribunal sitting at Leeds on the 3rd August 1992. To that Tribunal the Applicant, Mr Mansha, complained both of unfair dismissal and of discrimination under the Race Relations Act 1976 .The facts can be very shortly stated because we are dealing only with hearing on a preliminary matter by the Tribunal. It appears that Mr Mansha, the Appellant, is of Asian origin and he was employed by the Bradford Metropolitan Borough Council from April 1983 onwards in the Building Control Department. That employment continued without any adverse events so far as we know until 1991. Between May and October 1991 however, he complains that he was harassed by a man of European origin called Skelding. Apparently this harassment, and there were two sides to that story evidently because it was alleged that he had also harried Skelding, continued until October 1991 and then there was a fairly serious struggle of some sort between these two men, a physical struggle, which led to them both being suspended. After a disciplinary inquiry by Mr Steele, the City Planning Officer, both men were dismissed on the 19th December 1991.I state these matters in the barest outline and of course what I have said is simply based on allegations which were made in the case, which has not yet been finally determined.The complaint from Mr Mansha was received by the Central Office on the 13th March 1992, less than three months after his dismissal. His complaint was, as he puts in Box 1 of his Originating Application:
"Whether I have been discriminated against contrary to the Race Relations Act 1976"

- that is the first complaint -

"and unfairly dismissed contrary to the Employment Protection (Consolidation) Act 1978."
- he makes those two complaints. He is required by the Rules to give grounds for his complaints and he, on the second page of the Application, sets out various matters. He says he is of Asian origin, he complains of Skelding's behaviour, and he says the harassment continued, no action being taken by his employers. He says that on 31st October 1991 Skelding provoked him and he describes an incident. There was the disciplinary hearing on the 19th December at which the City Planning Officer dismissed him for misconduct - dismissed both men indeed though he does not say that. He says:
"I appealed against my dismissal and my appeal was heard on 13th February 1992 by the Council's Employee Appeals Sub-Committee. The Sub-Committee dismissed my appeal and upheld Mr Steele's decision.
I believe that my dismissal was unfair and that my employer has subjected me to less favourable treatment contrary to the Race Relations Act 1976."- in other words a complaint of discrimination. That is the document which the Tribunal received and which, in due course, the Council received a copy of. The question which the Industrial Tribunal had to decide was whether it was presented in time. They of course held that the complaint of unfair dismissal was made in time. With regard to the Race Relations Act they say:
"In so far as the application under the Race Relations Act is concerned, the allegation contained in the originating application form IT1 is that between May 1991 and October 1991 he was subjected to persistent harassment at work by Lawrence Skelding, a white administrative officer; that he made numerous complaints to various managers but no action was taken against Lawrence Skelding and the harassment continued. Therefore on the basis that persistent harassment at work by Mr Lawrence Skelding took place between May 1991 and October 1991 [original text obliterated by marks] that is outside the three months time limit [which is required by the Race Relations Act.]
The case for the applicant is that the very fact of dismissal on 19 December was based on racial grounds and therefore the complaint should run from that date and therefore is within the 3 months' time limit. The tribunal cannot accept that there was racial discrimination at that point because it has never been mentioned before today's hearing either in the form IT1 and, as far as we understand, it was not even mentioned at the appeal hearing on 13 February 1992."If they were saying it had never been mentioned before that day's hearing, that was entirely wrong, as I shall mention in a moment. It seems to us that the position here is tolerably plain. There were two complaints, one of unfair dismissal and one of racial discrimination. If one reads the document fairly it is perfectly true that two opinions could be formed about what the grounds given, the "full details" as it is put in the form, had actually been. Are they confined to the behaviour of this man Skelding, or do they extend to the dismissal? That is something on which anybody receiving this form might entertain some doubts and two different views might be given by two perfectly reasonable people. In those circumstances, of course, the Council could perfectly well have asked for some particulars. When the matter came before the Tribunal the Tribunal was under a duty to hear the two complaints. If the Tribunal were in doubt, then it could protect itself by insisting that the matter was properly made plain at the outset for the benefit of the Tribunal and the Council. But subject to that the Tribunal was bound to try such matters of complaint, under either head, as came within the three months. If it were alleged that matters fell outside the three months then of course the Tribunal would have to consider, if it was invited to at any rate, whether it should exercise its discretion to enlarge time under the Act. But the mere fact that the grounds were ambiguous in that respect did not relieve the Tribunal of its duty to enquire into those matters of complaint which had occurred within the three months and if, as appears here, it was made plain, at any rate at the outset of the hearing, that the dismissal was alleged to be racially motivated, that it was an act of alleged racial discrimination, then it was the duty of the Tribunal to enquire into that matter. The grounds, as Mr Kempster has very well said, require to be spelled out. They are not some sort of pleading on the basis of which one can say "you are time barred".So the Tribunal in our belief mistook the position and it should have been told that one of the matters of race discrimination alleged was the dismissal, and it should have enquired into that matter. If, in the view of the Tribunal, it was necessary to give particulars of that matter then they should have been insisted on by the Tribunal. The Tribunal does seem to have taken a wrong view in regarding these grounds as though they were some sort of definitive and final statement which enabled them to decide which complaints were in and which were out of time.In fact the Applicant says that he intended to say throughout that his dismissal was an act of discrimination and the Tribunal were quite mistaken in saying that nothing had been said about it before that day's hearing. He puts before us without objection two affidavits, the affidavit of himself and the affidavit of a Mr Courtney Hay, who represented him at the pre-hearing assessment on 6th May. Mr Courtney Hay deposes, without contradiction, that he stated on that occasion that the dismissal was both unfair and on racial grounds. The Applicant also puts before us the Question and Answer form which was put forward on his behalf and answered under Section 65 of the Act. In that he repeated the complaint, I think actually word for word, that he had made in his Application to the Tribunal. He points to the answers that were given to the various questions.

(c) :

"Considerations of colour, race, nationality (including citizenship) or ethnic or national origins affected my treatment of you to the following extent:-"
The proper answer to that no doubt might be "none" or "this has nothing to do with your dismissal" but on the contrary, the authority answered:
"consideration of colour, race, nationality or ethnic or national origins was not a factor in your dismissal."
- showing, one would have thought, that they perfectly well understood that that was what was being alleged; and that was duly confirmed at the hearing in May as Mr Courtney Hay has said. One would have thought if the Council were going to say "we are taken by surprise by all this" that would be a very good time to say it. They might have said "this we have not understood and it must be put right by amendment and proper particulars"; but nothing of that sort was said. Now that goes to discretion and in our view is simply a matter of comment in the circumstances, we want to emphasise that we have not heard the parties on the question of the discretion which belongs to the Tribunal, under Section 68, to enlarge time.We think that this complaint to the Tribunal set out a claim of race discrimination and it was the duty of the Tribunal to enquire into all acts of race discrimination within the time limit which were alleged and one of those, perhaps the only one (we do not know), is the dismissal on the 19th December. It is also alleged that race discrimination infected the appeal hearing. As to the other matters it appears to us that the right course is for the Tribunal to consider the possibly difficult questions of which of the other complaints of race discrimination were out of time. In the case of pre-October or pre-November incidents, it may be that there was a failure to take action on the part of the employer, which continued later so that it was still within time. It may be that time should be enlarged to include those incidents. It may be that complaints about them were clearly admissible as being part of a course of events which threw light on what followed.These are all matters, we think, that should be decided by the Tribunal, once it is settled that it is their duty to enquire, so far as they properly can, into matters of race discrimination which are alleged. These matters of discretion should in our view be dealt with by a Tribunal which has not misdirected itself, as this one did, to the effect that these matters were being raised for the first time before it.We think therefore that the case should be remitted to a differently constituted Tribunal with our decision, and that they should continue the hearing of, amongst other things, the allegation that there was racial discrimination in the dismissal of 19th December. We are very grateful for the moderate and concise way in which this appeal has been conducted.