Lyttle v Metropolitan Housing Trust [1994] UKEAT 899_93_0211

EAT
Lyttle v Metropolitan Housing Trust
[1994] UKEAT 899_93_0211 · 1994-11-02
MR JUSTICE PILL : This is an appeal against a part of the decision of the Industrial Tribunal held at London (North) on 25 August 1993 whereby the Tribunal unanimously decided that having regard to the time-limit contained in section 68(1) of the Race Relations Act 1976 the Tribunal had no jurisdiction to consider the complaint by the Applicant, Ms D Lyttle, of racial discrimination. She had been employed by the Metropolitan Housing Trust.There is no appeal against the Tribunal's findings on jurisdictional points in relation to a complaint of unfair dismissal.Ms Lyttle had been employed by the Respondents from 9 January 1991 to the date of termination of her employment, which was 30 November 1992. The issue came before the Tribunal for a decision upon - as the Tribunal put it - "the preliminary question of jurisdiction". The application was presented to the regional office on 8 April 1993. In the appropriate box on IT3, box 9, the Appellant answered the question:
"If your complaint is not about dismissal, please give the date when the action you are complaining about took place (or the date when you first knew about it)."

"12.1.93"

It will be noted that the date of presentation of the complaint is more than three months after the date of termination of the employment but is within three months of the date stated on IT1, namely, 12 January 1993.It is submitted by Mr Norris on behalf of the Appellant that the relevant date for present purposes is 12 January 1993 and that the Tribunal erred in law in finding that the Application was presented outside the three-month period. Section 68(1) of the Race Relations Act 1976 provides that:
"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."
Section 54(1) provides that:
"A complaint by any person ... that another person ... (a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part II;
...

may be presented to an industrial tribunal."

Part II of the Act is headed "Discrimination in the employment field" and section 4, headed "Discrimination against applicants and employees" provides, in so far as is material, in subsection (2) that:
"It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee -
...

(c) by dismissing him, or subjecting him to any other detriment."

Following the dismissal of the Appellant, there was on 12 January 1993 a disciplinary appeal hearing in relation to her dismissal. The Applicant's case is that as a result of the hearing her dismissal was confirmed and that she has been subjected to any "other detriment" by reason of the fact that she was not reinstated following that hearing.The decision was conveyed to the Appellant in a letter dated 12 January 1993. It referred to the claim to reinstatement and the claim that her dismissal was:

"wrongly founded"

and concluded:
"The panel felt that decision [that is, the decision to dismiss] had been appropriate and correctly reached, and they have therefore rejected your appeal."
There was a hearing on that date, and plainly a hearing of some length, at which the Appellant was represented. There was no reasoned decision following the hearing.Before the Industrial Tribunal evidence was given by the Appellant. The Appellant must, if the Tribunal are right, have given evidence about the substance of her complaints, at any rate to some extent, as well as on the timing of her application. Having concluded that they had no jurisdiction to consider the complaint of unfair dismissal, the Tribunal continued as follows:
"Turning to the race discrimination application. The evidence we heard from the Applicant was that she had been subjected to a continuing campaign of race discrimination from November 1991 when her line manager, John MacFarlaine, left the employment of the Respondent. Her reason for not making an application alleging race discrimination before, was that on 12 January 1993 when she received the decision of the management committee to uphold the decision to dismiss, she was led to assume that the management committee were supporting the senior managers, who hitherto, she had considered were subjecting her to race discrimination. The fact that the committee upheld them meant that they were being racially discriminating as well.
8. In the view of the Tribunal, on the Applicant's own evidence, the vast bulk of the alleged race discrimination occurred in the twelve months before her dismissal. She admitted that there was a continuous campaign of race discrimination on the part of her two white managers in particular, and the management in general. We find it very difficult therefore, and indeed unreasonable, for the Applicant to state that she did not make an application alleging race discrimination because she apparently needed 'just one more indication, namely the appeal decision before submitting an application to an Industrial Tribunal'. We find it difficult to understand, particularly as the Applicant was being advised and assisted by a community relations officer, why the Applicant did not lodge a protective claim to ensure that it would be within the time limit regardless of the hearing of the appeal. We do not consider that it would be just and equitable in the circumstances of this case to extend the time limit. We find that the application was presented out of time and an Industrial Tribunal has no jurisdiction to consider it."We note that the Tribunal had in mind the expression "just and equitable" as well as the time-limit in section 68(1) to which we have referred.The issue upon this appeal is whether the decision of the appeal panel on 12 January 1993 was an"act complained of" .Mr Norris submits that on the authority of the decision of this Tribunal in Adekeye v The Post Office [1993] IRLR 324 , it was such an act. We refer to the headnote in that decision:
"The EAT held:
The Industrial Tribunal had erred in law in finding that the appellant's race discrimination complaint was out of time on grounds that it had been presented more than three months after her dismissal. The Industrial Tribunal had asked itself the wrong question by determining when 'the act complained of' took place for the purpose of s.68(1) of the Act by reference to the effective date of termination, even though the employee brought an unsuccessful appeal against [that] dismissal.If a dismissed black employee complains that he or she did not succeed upon an internal appeal in circumstances where a white comparator would have succeeded such that there is an allegation of unlawful discrimination on racial grounds in the result of the appeal, that is an 'act complained of'."The arguments in Adekeye concentrated upon the apparent anomaly which would arise if, for the purposes of unfair dismissal, the date of termination was the relevant date at which time started running but if the time at which time started to run for a racial discrimination claim was different. That possible anomaly was squarely faced by the Tribunal in Adekeye . Giving the Judgment, Mr

Justice May stated at paragraph 15:

"We are concerned at the uncertainty which employers and Industrial Tribunals may face if the clear-cut time limit deriving from s.67(2) of the 1978 Act in cases of unfair dismissal is obscured by different time limits for other possible claims for unlawful discrimination under the 1975 or 1976 Acts said to have occurred or continued after the date of a dismissal. However, the time provisions in the 1975 and 1976 Acts (and indeed in s.24(2) of the 1978 Act) are not the same as that in s.67(2) of the 1978 Act and, as in the British Airways Board case, we do not consider that the cases under that section provide an exact analogy. If a dismissed black employee complains that he or she did not succeed upon an internal appeal in circumstances where a white comparator would have succeeded such that there is an allegation of unlawful discrimination on racial grounds in the result of the appeal, we consider that that is an 'act complained of' within the terms of s.68(1) of the 1976 Act."
Because of submissions made on behalf of the Respondent, it is necessary also to refer to the first part of the following paragraph in which the facts in Adekeye were considered:
"Miss Adekeye appeared before the Industrial Tribunal in person with an adviser from the Citizens' Advice Bureau. It is not clear from the Tribunal's reasons the extent to which her case that she was discriminated against in the outcome of her appeal was argued. What is clear, however, is that the Tribunal in reaching its conclusion asked itself the wrong question (or at least an incomplete question) in holding, in effect, that the time issued was determined by deciding the effective date of termination of Miss Adekeye's employment. That, as we have said, is the statutory test under s.67(2) of the 1978 Act, but not under s.68(1) of the 1976 Act. In our view, her case, by its very nature, applied jut as much to the determination of her appeal as it did to her original dismissal."
Unfortunately, the case of Adekeye was not cited to the Industrial Tribunal in the present case. It had been reported only shortly before the hearing in the present case. Mr Norris submits that the principle covers the present situation precisely. The Appellant took advantage of the internal appeals procedure. She was entitled to and does, in fact, he submits, complain that there was racial discrimination at the internal appeal hearing.In arguments, the nature of which have been revealed only on the day of the hearing, Mr Mead, for the Respondents, submits that the Applicant's case had never been put on the basis that the appeal hearing and decision was an act or were acts capable of constituting racial discrimination. That had not been alleged, either in the originating application or at the hearing. Mr Mead submits that the last:

"act complained of"

was the dismissal, which was more than three months before the originating application was served and that the Tribunal were correct in concluding that time ran from 30 November 1992. Mr Mead did appear at the hearing before the Industrial Tribunal. Ms Lyttle was represented by a community relations officer.The immediate difficulty facing Mr Mead is in the findings of the Tribunal to which we have referred. They found as a fact that the Appellant had alleged that she had been subjected to a continuing campaign of race discrimination. They found as a fact that the Appellant had alleged that when the appeal committee decided to uphold the decision to dismiss, they were discriminating racially as well. They found as a fact that the vast bulk of the alleged racial discrimination occurred during the 12 months before dismissal. It must follow from that, in our view, that they found that some of the acts, albeit it would appear a modest proportion, in the Tribunal's view, occurred after the date of dismissal. The only possible act of racial discrimination after 30 November was in relation to the appeal hearing and decision on 12 January. Further, it is implicit in the Tribunal's consideration of why a complaint had not been submitted earlier and that the Appellant needed just one more indication, namely the appeal decision, before submitting an application to an industrial tribunal, that the Appellant was alleging in her claim that the appeal panel, too, were guilty of racial discrimination.In the light of those findings of fact, we have come to the conclusion that Mr Mead's submissions are untenable. The foundation of his submission is the suggestion that it had not been alleged at the Tribunal that the appeal panel in January 1993 were guilty of racial discrimination. That submission simply does not stand with the findings of the Tribunal. Mr Mead says that regrettably, as he puts it, the chairman's notes of evidence are not available and we assume that this Tribunal refused to direct their production. Upon the information available to the Tribunal, when that decision was taken, we are not at all surprised at the refusal to direct. No indication had been given, as Mr Mead accepts, that the submission of his client in substance is as to the perversity of the Tribunal's findings in paragraphs 7 and 8. He submits that there was no evidence to support those findings. We regard ourselves as bound by those findings. No application has been made to us for an adjournment or that we take any other course today but to determine the appeal upon the material before us.The industrial tribunal are the tribunal of fact. They have found, in effect, that Ms Lyttle did complain that the decision taken by the appeal tribunal was based, at any rate in part, upon a racial criterion and that being so, had the decision in Adekeye been referred to them, they would inevitably have found that the principle in the case was relevant and they would have taken a different view of their jurisdiction to consider Ms Lyttle's complaint of racial discrimination.We would add that we find support for the fact that the complaint was made in Ms Lyttle's answer at box 9. Whether the date she had in mind was the date on which the event took place or the date when she heard of it, clearly what she had in mind in giving that date was the decision of the appeal panel.In deference to the detailed arguments addressed to us and having concluded that the case should be decided on that ground, we do consider briefly the other material to which reference has been made. We have been referred to the narrative included with the originating application. Mr Mead submits that while the narrative is fulsome in its complaint of racial discrimination, there is no specific complaint of racial discrimination by the appeal panel. He also refers to the minutes of the appeal hearing and to the statement at page 72 attributed to the Appellant in relation to a complaint of racial discrimination that:

"they had the evidence but were not going to present it at this stage."

Mr Mead submits that as the complaint of racial discrimination by the appeal panel was not made at that time and no evidence was called before the panel to support the complaint of racial discrimination, the Tribunal ought not to have considered it.We have considered that submission. The appeal panel did not give a reasoned decision. Had they done so one might have expected Ms Lyttle to have made in her originating application complaints about the findings of fact or the reasoning of the panel but, as we have indicated, they simply wrote a short letter indicating that the decision to dismiss was, in their view, an appropriate decision correctly reached.In our judgment it is implicit in the complaints of the Appellant that, by supporting the earlier decisions, the appeal panel were themselves guilty of racial discrimination. Whether they in fact acted in such a way is, of course, not for us to determine today but we are satisfied that even if one does look behind the reasoned decision of the appeal tribunal, as Mr Mead invites us to do, implicit in Ms Lyttle's case is a submission that the appeal panel, too, are infected by the racial discrimination which she submits occurred at an earlier time.Mr Mead has addressed us upon the authorities which deal with the question whether an act should be regarded as a "once for all" act or a "continuing act". We do not find them helpful in the present context. The question, as he rightly accepted when the point was put to him, is whether the decision of the 12 January is an act complained of. If the matter is heard on its substance by the Industrial Tribunal, it will be a question for them to consider whether there is continuity between that act and earlier acts. However, questions of continuity do not, in our judgment, arise upon the present jurisdiction of dispute. We have to consider whether there was an error of law by the Industrial Tribunal then holding that the act on 12 January 1993 was not an act complained of.Upon their own findings of fact, in our judgment, the principle in Adekeye applies. Mr Mead has not sought to submit that it was wrongly decided upon its own facts. The principle covers the present facts and, accordingly, there was an error of law by the Tribunal in declining jurisdiction. We have referred to the way in which the facts were dealt with in Adekeye. As Mr Norris points out, in that case it was not clear from the Industrial Tribunal's reasons, the extent to which her case that she was discriminated against in the outcome of her appeal was argued. In this case, upon the Tribunal's own findings, it was argued.This appeal must be allowed. The matter will be remitted to the Industrial Tribunal with a direction that they have jurisdiction to consider Ms Lyttle's complaint of racial discrimination.