Akhter v Family Services Unit [1996] UKEAT 1285_95_2005

EAT
Akhter v Family Services Unit
[1996] UKEAT 1285_95_2005 · 1996-05-20

JUDGE BASSINGTHWAIGHTE :

This appellant submitted an originating application on 10th March 1995 claiming that she had been a victim of unlawful racial discrimination by the respondent as a result of their alleged refusal to allow her to use the applicable grievance procedure under her contract of employment after she had submitted a race relations questionnaire for completion.Her complaint came before a Leeds Industrial Tribunal on 7th September 1995 on a preliminary point: whether the appellant had filed her complaint within the three months' time limit set out in Section 68(1) of the Race Relations Act 1976 , and if not, whether the Industrial Tribunal should exercise its discretion to hear her complaint because it was just and equitable to do so as Section 68(6) of the 1976 Act provides. The relevant parts of Section 68 of the 1976 Act read as follows:
"(1) 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.
(6) A court or tribunal may nevertheless consider any such complaint, claim or application which is out time if, in all the circumstances of the case, it considers that it is just and equitable to do so."The Industrial Tribunal in their decision which was promulgated to the parties on 16th October 1995 in extended form, summarised the basis upon which they made their decision in paragraph 5:
"5. The act or deliberate omission of which the applicant complains was the respondents' refusal to allow her access to their contractual grievance procedure. The rights and wrongs of that refusal we need not and should not go into at this stage. The refusal initially came from a Mr Asher, the Unit Manager on 21 September 1994. It was confirmed, if confirmation were needed, by the Assistant Director Mr Ibegbuna on 29 September as being "the formal position of the Family Service Unit." This we find was a single act or omission. The date of the act or omission was no later than 29 September 1994."
Following those deliberations the Industrial Tribunal concluded that the complaint had been lodged outside the three month time limit prescribed and declined to exercise their discretion to hear the complaint.Before this appeal tribunal the appellant has complained that the Industrial Tribunal erred in law by confining her complaint to the initial refusal by Mr Asher in September 1994 (or indeed to that of Mr Ibegbuna a few days later) when they had before them as part of her detailed complaint in her originating application a further decision by the respondent's director, Miss Kay on 1st February 1995.The Industrial Tribunal considered that submission in paragraphs 6/7 of their decision:
"6. Mr Long [ The appellant's then representative ] argued that in fact the refusal was a continuing act, extending over a long period, beginning with Mr Asher's decision in September 1994, continuing through Mr Ibegbuna and finally being confirmed by the Head of the Organisation, Miss Kay in February 1995. This had to be Mr Long's case because it was only Miss Kay's involvement which as a triggering point for the complaint would have put the complaint within the three month time limit.
7. We have given very careful consideration to Mr Long's argument but we prefer Mr Baker's submission that in truth the refusal was a single act or omission. It is quite correct that after 29 September 1994 when Mr Ibegbuna confirmed Mr Asher's decision "the formal position of the Family Service Unit", the applicant's trade union continued unsuccessfully to try to persuade the respondents to change their decision, but these were not appeals in the procedural sense; the union was not following a formal appeal or grievance procedure, they were trying to get into it. That was the clear evidence of Mr Haigh, the full time official from whom we heard."The Industrial Tribunal decision does not record what if any guidance it had in mind from reported decisions of this appeal tribunal or higher courts. Clearly the Industrial Tribunal had in mind whether the appellant's complaint crystallised in September 1994 or whether there were later actions giving a separate cause for complaint.Our attention has been drawn to the case of Adekeye v Post Office [1993] ICR 464 . In that case the complainant was dismissed on 8th June 1991 but pursued an internal appeal against dismissal, the lack of success in which was eventually communicated to her on 14th August 1991. She filed a complaint of unlawful discrimination on the grounds of her race on 25th September 1991 and the Industrial Tribunal declined jurisdiction on the basis that her complaint related to her dismissal on 8th June and was therefore outside the statutory time limit of three months. The Employment Appeal Tribunal held that that decision was wrong because her complaint related as much to the determination of her appeal as it did to the dismissal.This originating application complains that Mr Asher made a decision in September 1994, that the Assistant Director, Mr Ibegbuna made another decision in September 1994 and that the Director, Miss Kay made a final decision in February 1995. The Industrial Tribunal drew a distinction between the decisions of Mr Asher and Mr Ibegbuna and that of Miss Kay; they accepted that the former were or could have been decisions which could have founded a complaint by the finding that:"the date of the act or omission was no later than 29 September 1994" [Paragraph 5 of the decision]yet for a reason which is not clear to us they decided that Miss Kay's letter of February 1995 was no more than confirmation of the earlier decisions and, for that reason, was not one which could have founded a complaint.As Bristow J in Amies v Inner London Education Authority [1977] ICR 308 (at page 311A) said:
" There is nothing in the definition of the Sex Discrimination Act 1975 or the sections to which that refers to require us to give any other than the ordinary common sense meaning to the provisions of the Act."
We would adopt that comment with regard to the Race Relations Act which is drafted in very similar terms. Section 68(7) of the Race Relations Act 1976 contains provisions which are mirrored in the Sex Discrimination Act 1975 to the effect that there may be discrimination by an act "extending over a period" , that is a continuing act. There is also provision to the effect that for the purposes of calculating the period within which a complaint must be presented to the Industrial Tribunal "any act extending over a period shall be treated as done at the end of that period."The competing arguments of the parties before us on this appeal were very attractively and carefully constructed and presented, and they can be summarised thus: the appellant submitted that the decision of Miss Kay in February 1995 was itself a freestanding act and decision such that it could be "an act complained of" in the terms of Section 68(1) of the Act, whereas the respondent's argument was to the effect that what both she and Mr Ibegbuna were doing in their letters to the appellant and her representative was no more than confirmation of what had been Mr Asher's decision in September 1994 and that in consequence there was no continuing act to which the appellant could point to bring her claim within time, any more than she could complain of the decision of Miss Kay as "an act complained of" within the definition to which we have referred.We were referred to a number of cases: Eke v Commissioners of Customs & Excise [1981] IRLR 335, Clarke v Hampshire Electro Plating Co. Ltd [1991] ICR 312, Owusu v London Fire and Civil Defence Authority [1995] IRLR 574, Sougrin v Harringey Health Authority [1992] IRLR 416.Each of those decisions clearly rested upon their own facts and provided for us useful illustrations of how other tribunals might have interpreted the relevant provisions. However, it is always instructive for any tribunal to guide itself by the wording of the statute which creates the provision to which reference is being made; that should be done, bearing in mind the helpful instruction of Bristow J to consider the wording of the statute in its ordinary meaning and to apply common sense.It is self-evident that the reasons which motivate one person in a chain of authority in giving a decision may differ from the reasons which caused another person in that same chain (but lower in it) to make the same decision or to confirm the earlier decision of a subordinate. In our view the mere fact that later action of a senior office holder is capable of being described as confirmation of the decision of a subordinate does not mean that that later decision itself cannot be "an act complained of" within the term of Section 68(1) of the Act.The evidence in this case, as accepted by the Industrial Tribunal, reveals that the appellant's union representative had written to Miss Kay on 23rd December 1994 specifically asking her as the respondent's director, to take a decision with regard to her case. Miss Kay responded on 4th January 1995 to the effect that she would "get back to you on the points you raised" , and on 1st February 1995 Miss Kay wrote in the following terms:
"On the Kaniz Akhter grievance, I do not agree that you have been blocked on this issue. It was your choice to interpose the Race Relations Questionnaire which led to a comprehensive response from David Asher, the Unit Manager. His response represents the formal and final position of FSU on this matter. FSU is prepared to defend this stance in an Industrial Tribunal should you regard this an option still available to you.
Gus Ibegbuna and David Asher have offered, and are still willing to attend a without prejudice meeting if you feel this would be helpful."We can interfere with this Industrial Tribunal's decision only if we can identify an error of law which permits us to do so. In the context of the submissions before us that involves our deciding whether or not, by their decision to date the "act complained of" no later than 29 September 1994, this Industrial Tribunal made a decision which no reasonable tribunal, properly directing itself in accordance with the law, could have made.As we have commented the Industrial Tribunal has appeared to accept, by their choice of 29 September as a possible date for the "act complained of" that Mr Ibegbuna's letter could itself fall within that definition; that letter reads:
"As I explained on the telephone yesterday, David Asher's letter represents the formal position of the Family Service Unit ... I hope this response clarifies the position."
That letter might well be described, as the Industrial Tribunal described it in paragraph 5 of its decision, as confirmation, yet the Industrial Tribunal accepts that it could itself amount to "an act explained of" as a single act. That finding sits uncomfortably and inconsistently with the conclusion that Miss Kay's letter of 1 February 1995 could not be so described, given its terms as set out above. We find no assistance in understanding the Industrial Tribunal's reasoning in paragraph 7 of their decision when they seek to draw a distinction between "appeals in the procedural sense" and "trying to get into" that formal procedure; a refusal of an appeal or of access to the procedures for an appeal are both refusals which could affect the ability of an employee to redress a grievance.We can only conclude that this Industrial Tribunal erred in law when they decided that Miss Kay's letter was not itself capable of being described as an "act complained of": they reached a decision which no reasonable tribunal would have reached, if properly directed in accordance with the law and upon the facts found by them.The Industrial Tribunal's decision having erred in law must be set aside. We substitute our own decision that the Industrial Tribunal has jurisdiction to hear the complaint of unlawful discrimination since, on the basis of facts found by the Industrial Tribunal, no tribunal should have concluded that Miss Kay's letter of 1 February 1995 could be considered other than as a latter which conveyed a decision by the Unit Director which was itself capable of description of an "act complained of" : we direct that the appellant's complaint be listed for a full merits hearing by a differently constituted Industrial Tribunal.