Dorai v Safeway Stores Plc & Ors [1995] UKEAT 177_95_0606

EAT

Dorai v Safeway Stores Plc & Ors

[1995] UKEAT 177_95_0606 · 1995-06-06

MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an appeal by Mr C Dorai against the decision of the Industrial Tribunal held at Truro on 4 March 1994. The Tribunal heard a complaint by Mr Dorai of racial discrimination against the Respondents, Safeway Stores Plc, Mrs Margaret Hunston and Mr Penman. The Tribunal unanimously decided that Mr Dorai's application had been presented out of time and that it would not be just and equitable to consider his complaint in all the circumstances of the case. The application was therefore dismissed for want of jurisdiction.

The full reasons for the decision were notified to the parties on 10 March 1994. An application was made by Mr Dorai for a review of the decision. The review was refused by the Chairman for reasons notified on 7 April 1994. The reason why the application for review was refused was that, in the Chairman's view, it had no reasonable prospect of success. Mr Dorai appealed to the Employment Appeal Tribunal by a Notice of Appeal dated 12 May 1994. His grounds of appeal were that the Tribunal could have taken into consideration all the circumstantial evidence relating to the loss of his job, to his ill-health and to his period of long employment, including the moral issues, and the procedures in which he was dismissed by the company. He said that a letter from the Industrial Tribunal of 1 February 1994 stated two options. He was hoping that Option 2 would be given.

It is not immediately clear from those grounds of appeal what point of law Mr Dorai was seeking to raise on the appeal. The matter was set down for a Preliminary Hearing for that reason. On a Preliminary Hearing an appellant must satisfy the Tribunal that the appeal raises an arguable point of law, otherwise there is no point in the matter being pursued to a full hearing. This Tribunal only has jurisdiction to entertain appeals on questions of law. At the hearing today Mr Dorai has not attended. He wrote a letter on 18 May enclosing documents relevant to today's hearing saying:

"Unfortunately I am unable to attend due to the costs and distance involved, since I am not in receipt of any legal benefit. However I do hope and believe for a fair outcome taking into consideration the points I have raised since lodging this appeal."

We have therefore dealt with this matter on the papers before us. The question is: is there any arguable error of law in the reasons given by the Tribunal for their decision?

The Tribunal, after referring to the relevant provision of the Race Relations Act 1976 which 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, then considered the facts which had given rise to the complaint. They also considered these facts in the light of Section 68(2) which gives a Tribunal a discretion to consider a complaint out of time, if in all the circumstances of the cases it considers just and equitable to do so.

The facts found by the Tribunal were that Mr Dorai began his employment with Safeway's in the store at Redruth on 3 February 1992 as a senior management trainee. He was dismissed on 18 June 1993, due to incapability to work due to ill-health. For one reason or another he had been absent for 15 weeks out of the previous period of 24 weeks. He was informed of his rights of appeal. Nearly two months later on 15 August 1993, well out of time for an appeal, and despite the late notice, the second and third Respondents Mrs Hunston and Mr Penman, agreed to hear his appeal on 8 October 1993. At the appeal the third Respondent upheld the decision of 18 June. The Tribunal found that the date of dismissal was 18 June. It followed that any complaint alleging discrimination on grounds of race would need to be entered by 17 September to be in time. The complaint was not received by the Regional Office of Industrial Tribunals at London (South) until 6 January 1994. The application was over 3.1/2 months out of time. The function of the Tribunal was to decide whether it was just and equitable to allow the complaint to proceed in all the circumstances.

The Tribunal set out a helpful chronology of events relevant to the substance of Mr Dorai's case that he did not know there was a time limit for making a complaint, and no-one ever told him that. He received his P45 and a cheque from Safeway's on 17 July. He posted a letter to Mrs Hunston on 26 July asking the reason for termination. He received a reply on 10 August. On 17 August he rang the Industrial Tribunal at Bristol and the CRE, requesting an IT1 complaint form for an Industrial Tribunal and he posted a letter to ACAS. On 18 August he posted a letter to Mr Penman asking for a meeting. On 25 August he received a reply from ACAS, which acknowledged his letter regarding his dismissal and then referred to the 1978 Act , relating to the qualifications necessary for bringing a complaint for unfair dismissal. The letter also stated that it appeared from his letter that he had not got the relevant service to qualify for a complaint of unfair dismissal. The letter went on to say:

"You may wish to consider contacting the Commission for Racial Equality to discuss the implications of Race discrimination."

The address and telephone number was given and also the telephone number of the Race Equality Council in the Bristol area. He was alerted to the possibility of getting legal advice from a solicitor or the local Citizens Advice Bureau: a leaflet was enclosed and the letter expressed a willingness to deal with any further queries.

On 11 September (still within the three months) the IT1 arrived from the CRE. On 14 September he posted the IT1 to the CRE. He told the Tribunal that the application he sent to the CRE was the IT1, not the Race Relations Act form. Subsequent correspondence disclosed that this form was sent by the CRE to the Applicant on 3 November. There was further correspondence with CRE between October 1993 and February 1994. On 6 January the CRE sent in the IT1, on the assumption that the last day for making the complaint was 7 January, based on the appeal hearing date of 8 October.

The Tribunal set out the case for the Respondents stating in paragraph 7:

"As far as the complaint of race discrimination by Mrs Hunston the second respondent, and Safeway's position vicariously, there is a personal liability on Mrs Hunston, and her interests must therefore be balanced with the applicant's. The applicant clearly understood he had a means of redress if he had been unfairly treated on account of his race, and he knew this well within the time limit because of the letter from ACAS and the telephone conversation with the Industrial Tribunal at Bristol - and at that time he could still have presented his complaint well within time. It was not satisfactory for a complaint to be allowed to drift and he could have presented the complaint himself without difficulty - and apparently did so, by sending the form, it transpired today, on 14 September to CRE. It this happened, and there was any fault on the part of CRE, then it was not right for the applicant to seek to shelter behind that."

The Tribunal accepted the submissions on behalf of the Respondents. The complaint was hopelessly out of time. It was not just and equitable in all the circumstances for it to proceed.

On reading that decision, it appears that there was no misdirection of law. The Tribunal referred to the correct provisions in the Race Relation Act relating to time. They looked at all the circumstances relevant to the exercise of their discretion to extend time on the grounds that it was just and equitable. There is nothing obviously perverse or unreasonable about the conclusion not to extend time. As far as any error of law is concerned, we have considered the representations made by Mr Dorai in his letter of 12 May. He said:

"I would like to say that I have been genuinely unaware of the time limit for application to the Industrial Tribunal. At the hearing on the 4th March 1994, at Truro, my case was not even heard and knowing that there were two options to be discussed on the day, I was disappointed that the Chairman did not consider all circumstances and to have allowed the case to be heard. I am still unemployed do not get any benefit financially from the Government at all. I am not allowed Legal aid as my wife earns just above the qualifying limit."

He gives details of how he is still making numerous applications for jobs. He says he has not done anything wrong. A lot of strain has been put on his marriage as a result of this. He still cannot believe that an employer can dismiss a person while under medication and get away with it. He has kept a log of events and the way he was treated. These did not have a chance to be used at the hearing. Those are the matters which he brings to our attention. They are considerations which attract sympathy. The legal question is whether there was an error of law in this decision. In our view, there was not. The Tribunal were entitled, on the facts found by them, to refuse to extend the time limit for bringing the appeal. In those circumstances, the case is not arguable on appeal. We dismiss it at this stage.