Bhardwa v London Borough Of Hounslow [1995] UKEAT 402_94_2203

EAT
Bhardwa v London Borough Of Hounslow
[1995] UKEAT 402_94_2203 · 1995-03-22

JUDGE LEVY QC :

Mr O V Bhardwa commenced his employment with the London Borough of Hounslow on 12th December 1988. His employment ended in April 1993. He complained he had been wrongly dismissed and commenced proceedings by an application to an Industrial Tribunal which was undated, but was received on 16th July 1993. It was sent, I think, by fax.The employers put in a Notice of Appearance in which they stated his employment had ended on 1st April 1993. They sought an interlocutory application under Section 67(2) of the Employment Protection (Consolidation) Act 1978 ("the Act") to have the complaint dismissed, on the grounds that the application had been started out of time. There was a preliminary hearing before a panel at London (North) on 16th February 1994. The unaminous decision of the Tribunal was that it had no jurisdiction to hear the complaint as it had not been received within the time limited. From that there is an Appeal to this Tribunal. The matter came up by way of a preliminary hearing on 12th September 1994 when the Tribunal ordered that the Appeal should be allowed to proceed to a Full Hearing.We have had that hearing today. The point of the Appeal can be seen from the Skeleton Argument and from the Notice of Appeal. It is not that there was an Unfair Dismissal, about which it is not disputed that the complaint was made out of time but that the complaint was one of racial discrimination, for which different time limits apply. We therefore proceed to examine what was the complaint which Mr Bhardwa made.The application to the Industrial Tribunal states under box 1, where the question is asked:
"Say what type of complaint(s) you want the tribunal to decide [ and there is a reference to a note opposite ]
[The typed answer reads]:

"Unfair dismissal"

The typed answer in box 9 reads:
"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)."
No date is entered in the box provided for the answer.Anyone reading the complaint would therefore have thought it was only unfair dismissal, about which Mr Bhardwa was complaining.The grounds in paragraph 10 where full details are set out said this:
"I was dismissed from the Council's employment on 30 April 1993 following a contractual review under its Management of Absence Policy."
"I believe that the decision to dismiss was unfair on the following grounds: (i) because I had made a number of claims of racial discrimination the Council used Management of Absence Policy to avoid addressing the issues raised by myself;
(ii) my absence of work has been a direct result of an industrial injury at work;(iii) the Council agreed to await consideration of my case under the Management of Absence Policy subject to my appointment with a Surgeon. This agreement was not honoured by the Council."The Notice of Appearance by Respondent stated, in box 3:
"That the Applicant failed to meet his contractual obligation to work by reason of long-term sickness absence."
The reasons which accompanied the Notice made quite clear their denial that the dismissal was unfair and that the employers thought that the racial discrimination claims were groundless.When the matter came before the Industrial Tribunal, nothing was said by Mr Bhardwa, who appeared for himself, to indicate to the Tribunal that he wished it to consider anything other than an unfair dismissal claim. We should say that in formulating his claim we understand he had the assistance not only of his union, but also of the Citizens Advice Bureau.Nothing having been said by him or by the Chairman, or any suggestion that complaints of racial discrimination were in issue, the result followed which we have indicated, because it was clear that the application had been started out of time. Having regards to the words Section 67(2), the Tribunal had ample evidence to satisfy itself that it was reasonably practicable for the complaint to be presented within the time limit.On this Appeal what is submitted is that the Chairman should have indicated to Mr Bhardwa that he could have amended his appeal to claim an award on the grounds of dismissal for racial discrimination, and if that had been done he would not have commenced his application out of time.In that connection, our attention has been drawn in the course of the hearing of this Appeal to the Race Relations Act 1976 and particularly to section 68 of that Act and more particularly to sub-section 6 of that section 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."
When we heard what the nature of the Appeal was, we requested clarification from the Chairman as to whether there was any suggestion that a race relations complaint reached the Tribunal. We as do the parties have his reply. It reads as follows:
"1. I have looked at my notes of evidence. There is no reference to any race complaint.
2. The P.H. was limited to a preliminary issue only on the Unfair Dismissal Case .

(C) A 1978

3. The Applicant (nor, the Respondent) did not raise any jurisdictional point of the race complaint.""4. Although, the Applicant mentions "Racial Discrimination" in para 10 of his IT1 (possibly a victimisation complaint under RRA1976) para 1 mentions " Unfair Dismissal " only.Perhaps, I should have asked him if he was also claiming under RRA 1976. I did not do so - it did not occur to me at that time."It was helpful for the Chairman to have so commented but, at the end of the day, the position is quite clear: Mr Bhardwa did not bring to the Chairman's notice that his complaint was other than for unfair dismissal. The question is therefore, whether he should have done anything to raise it himself. In that connection, Counsel referred us to the Decision in Dimtsu - v - Westminster City Council 1991, IRLR 450 where Knox J. reiterated the Decision of this Tribunal in a panel headed by Arnold J. in Kumchyk - v - Derby County Council 1978, ICR 1116 and at paragraph 14:
"Thirdly, we regard it an important that the principles set out in Kumchyk v Derby County Council be upheld, and not eroded by qualification based upon inferences which a chairman of an Industrial Tribunal might make."
Pausing there, the passage relied on from Arnold J's judgment in found in paragraph E page 1123:
"It is well established in these tribunals, and we hope in the appeal tribunal, that where the representation is a non-professional representation (if such a thing can be conceived), in listening to an argument put forward by an advocate or evaluating a point of law put forward by an advocate, the tribunal will be as helpful as possible, perhaps by itself refining and improving the argument, perhaps by suggesting to the advocate that the argument might be put in a different or more favourable fashion, something of that sort. But we think that it is very far from the duty or indeed the practice of the chairman of industrial tribunals that they should be expected to introduce into case issues which do not figure in the presentation on the one side or the other, at any rate in normal circumstances; ..."
Ms Belgrave has tried very hard to persuade us that, given the link in to a race relations complaint which was found in the complaint made by Mr Bhardwa to the Tribunal, there was an onus on the Chairman to do what he says he should have done, i.e. maybe to raise a question himself.We do not think that there was any such onus on the Chairman and we do not think that in any way he can be blamed, when box 9 has been left empty as it was, for not raising it. Furthermore, we think that when an applicant has had the assistance which Mr Bhardwa had in formulating his complaint, the fact that the complaint was phrased as it was cannot be looked at as oversight. If, contrary to our view, there was an oversight by the Chairman, and if, contrary to our view, the Industrial Tribunal had considered an application under the 1976 Act, given the circumstances in which the complaint came to be raised, we do not think that the provisions of 68(6) of that Act would have been of any assistance to Mr Bhardwa. In our view, it would not have been appropriate to have extended time.In the circumstances of this case, we do not think that the discretion which the Tribunal exercised was in any way wrongly exercised and we do not think that there are any grounds on which this Appeal can succeed.We should say, we have been referred also to the decision of Scott J. and colleagues in Dodd - v - British Telecommunications PLC 1988, ICR 116. There is nothing in that decision which in anyway conflicts with our decision. In that case the EAT said that when an application had not been completed as well as it might have been but the fact of a valid complaint could be discerned from the contents of the form, it was wrong for an Industrial Tribunal to have rejected the complaint out of hand. Here the nature of the complaint was clear, i.e. unfair dismissal. The complaint was properly dismissed as brought out of time. In the circumstances we thank counsel for their submissions, but we dismiss this Appeal.