Gupta v Customs & Excise [1996] UKEAT 186_96_0710

EAT
Gupta v Customs & Excise
[1996] UKEAT 186_96_0710 · 1996-10-07
MRS JUSTICE SMITH : This is an appeal from the decision of an Industrial Tribunal sitting at London (South) on 7th December 1995. It relates to matters which go back to 1991 and 1992. By a majority decision the tribunal dismissed the appellant's complaint that his employers had discriminated against him on racial grounds. They found that his complaint had been brought out of time. The majority declined to extend the time limit on the basis that it would be just and equitable so to do although the single member would have done so.It is convenient at this stage to set out the statutory provisions upon which this appeal depends. Section 54 of the Race Relations Act 1976 permits a complaint to be made to an Industrial Tribunal under Part II of the Act, that is the part of the Act dealing with discrimination in the employment field. Section 68(1) provides:
"(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."
Section 68(6) provides:
" (6) 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."
Subparagraph (7) provides:

" (7) For the purposes of this section-

...(b) any act extending over a period shall be treated as done at the end of that period; ..."We turn now to the facts taken partly from the decision and partly from the documents which the parties put before the Industrial Tribunal and which were also before us. It appears that no oral evidence was presented to the tribunal on the hearing of the preliminary issue which arose under Section 68 of the Act.The appellant who is of Indian origin had been employed by the respondents since 1967, and from 1974 onwards he had held the grade of Executive Officer ["EO"] at Heathrow Airport. He was due to reach his compulsory retirement age of 62 on 1st January 1992. It was the employer's policy to re-employ retiring staff if a suitable vacancy was available, but such employment would be at the grade below the grade held at retirement. Thus for this appellant it would be open to him to apply for re-employment at Administrative Officer ["AO"] grade. Applications for such employment were to be made six months before the date of normal retirement. Mr Gupta made his application in July 1991, but due to an administrative error on the employers' part, it was not considered in the Personnel Management Unit until November 1991. On 19th November Mr Gupta was told that there was no suitable post available for him and he appealed. He had been warned in August 1991 that the employment situation was difficult and that it was unlikely that a suitable post would be found.Mr Gupta had a white colleague at Heathrow named Mr Thornton. He too was an EO having held that position since 1971. He was due to retire just a few days before Mr Gupta. In June 1991 he applied for re-employment as an AO and in due course he was offered a post, not at Heathrow where both men had worked for many years, but at Uxbridge.In December 1991 the appellant and Mr Thornton together asked to be allowed to share the job in which Mr Thornton had been re-employed. Mr Thornton was allowed to reduce his hours to 20 hours per week, but the appellant was not offered the other part of the job. He was informed of that decision at some time in January 1992. By then he had retired on 1st January 1992.On 25th February 1992 the appellant wrote a letter of appeal to the Board of Customs & Excise, in which he complained that he had been discriminated against in that he had received different treatment from Mr Thornton. At his request that appeal was not lodged immediately. In early March 1992 the appellant was offered a temporary job for one year only as an Administrative Assistant. Although that position was at a lower grade than AO, there would apparently have been no financial disadvantage to him had he accepted it, as the difference would have been made up from his pension. However, he refused that offer. Soon after that, his appeal to the Board was allowed to proceed. On 26th May 1992 it was rejected.On 24th August 1992 the originating application was lodged at the Central Office of Industrial Tribunals. In that application Mr Gupta claimed that he had been discriminated against on the grounds of race. He stated that "the act complained of" took place on 26th May 1992, the day on which he had received notification that his internal appeal had failed. The account he gave in the IT1, which we understand was completed without legal assistance, described first the employer's delay in dealing with his application for re-employment and compared his position with that of Mr Thornton who had been offered a position by way of re-employment, whereas the appellant had not. He also described the outcome of the joint application to share the Uxbridge job. He explained that Mr Thornton's application had been granted but his had not. He thus described two acts of alleged discrimination, the second of which had been complete some time in January 1992.At a pre-hearing review in 1993, the Chairman directed that if the respondents were minded to raise the question of whether the application had been lodged in time they must set out their contentions in writing, in particular stating what they considered to be the date of the act or acts complained of. The respondents came to the hearing in 1995 wishing and intending to argue that point, although they had not complied with the direction given by the Chairman in 1993. The Industrial Tribunal decided to allow the respondents to argue this point, and offered the appellant an adjournment. However, he and his representative elected to proceed.It appears from the decision that there were two main arguments. First, the respondent argued that the appellant was complaining of two distinct acts of alleged discrimination. The first of these was complete in November 1991 when the appellant was told that there was no AO post available for him. The second had taken place in January 1992 when he was refused permission to job-share. The appellant had felt aggrieved and had stated in his appeal letter in February that he considered that he had been discriminated against. That, submitted the respondents was three months before his appeal was finalised, and six months before he lodged his application before the tribunal. He could and should, they submitted, have acted much sooner.The appellant contended that this was not a case of two distinct allegations of discrimination, it was a case of a continuing act of discrimination extending to the dismissal of the internal appeal. The appellant's real complaint was said to be the failure of the Board to re-employ him.At paragraph 8 of the decision the tribunal said this as to the first issue:
"(1) There was no continuing act of discrimination but two separate acts; the failure to process the Applicant's job application speedily coupled with the refusal of an alternative job as an administration officer in November 1991 and the refusal of a job share in December 1991/January 1992. The Originating Application was presented 24 August 1992 and the complaint was out of time."
Before this appeal tribunal, Mr Crosland for the appellant, has argued that the tribunal erred in law in so finding. He has submitted that the appellant's real complaint was that the whole of the respondents' actions up to and including the rejection of the internal appeal were discriminatory. He submitted in effect that this was a long period of discrimination culminating in a discriminatory appeal. He accepted that the IT1 did not allege that the appeal was discriminatory. He submitted that it should be inferred that what the appellant was trying to say when he completed his IT1 (when he said that the act complained of was on 26th May,) was that the culmination of a continuing act of discrimination occurred on 26th May.We have listened very carefully to Mr Crosland's submission as to how he could put his case to show that the respondents actions up to and including the appeal were a continuing series of possibly discriminatory acts. We have allowed him to show us documents from which he submits that he could show a prima facie case of discrimination up to and including the appeal. We have allowed him to do so, although it is clear to us that not only was the case not put in this way on the IT1, it was not put in this way at the hearing. We have allowed a good deal of latitude so that we have been able to satisfy ourselves that no injustice could have been done to this appellant as the result of the case not being clearly put in its earlier stages. However, we are satisfied that the Industrial Tribunal were quite entitled to hold, and would still have held even after the fullest argument, that this was a case in which two separate acts of discrimination were complained of, although each of those acts could be said to have been spread over a period of weeks. They were therefore also entitled to hold as they did, that the second of those acts was complete in January 1992 and that the application was therefore well out of time in August 1992.The Industrial Tribunal then went on to consider as the second issue whether it would be just and equitable to extend time under Section 68(6). They approached their task in this way. Within paragraph 7 they said:
"A Tribunal has a discretion to extend time if it was just and equitable in all the circumstances of the case. "Circumstances" refer to circumstances relating to why the claim was late. Relevant factors are the reason for and extent of the delay, whether the complainant was professionally advised; whether there were genuine mistakes based on erroneous information and what, if any, prejudice might be caused to either side by allowing the claim to proceed."
Then at paragraph 8(2) they give the conclusion of the majority:
"(2) It would not be just and equitable to allow the complaint to be heard. In August 1991 he [ that is the appellant ] was warned he would be unlikely to be given a job on retirement. On 25 February 1992 he himself stated he felt he had been discriminated against. This was six months before his Originating Application. On 26 May 1992 he received a letter from the director of personnel letting him know there was no further employment but he still did not put in his application but waited until August. We note from the correspondence in the Respondents' bundle that 11 May 1992 he was writing to his MP complaining of discrimination. This was an approach to an outside body but it was still several months later when he presented his application to the Industrial Tribunal. Nor does he seem to have sought legal advice until July 1992 when he went to the Hounslow Racial Equality Council. The Applicant is clearly an articulate person who in February 1992 felt he was being discriminated against. He could and should have presented his claim then and at the same time continued discussing possible jobs with the Respondents. The majority conclude it is not just and equitable to hear the complaint which is dismissed."
Then at paragraph 9 is set out the minority view which is:
"9. ... that it would be unjust to penalise someone for using internal procedures. It was accepted that there were two distinct acts but he [ that is the minority member ] considered it would be just equitable to hear the complaint because the Applicant had pursued his claim through the Respondents' procedures which were delayed because of their own error. It would have been just to extend time over and above the three month period laid down in the re-employment procedure up to August when the Originating Application was presented."
Mr Crosland has submitted to this appeal tribunal that no reasonable Industrial Tribunal could have reached the view which the majority here expressed. He submits that they have failed to give any or sufficient weight to the absence of any prejudice which would be suffered by the respondents, and the presence of real prejudice which would be suffered by the appellant if the claim were not allowed to proceed. He has told us that he addressed the Industrial Tribunal on those issues, and we accept that he did. The tribunal mentioned prejudice as a matter which they must take into account.Second, he complains that the tribunal have not taken account of the fact that the appellant was unrepresented at the time when he considered making a claim and did not know of the time limit with which he had to lodge his claim. The Industrial Tribunal do not mention that matter, it is true. But we do not think that they could be criticised for this. After all they had heard no oral evidence from the appellant, and they knew that he had taken advice from both the Citizens Advice Bureau and the Commission for Racial Equality.We are unanimously of the view that there were good arguments both for and against the extending of time in this case. We all three of us can well understand how two members formed one view on that issue, and the third formed the opposing view. But the only question for us is whether the majority decision was perverse. In our judgment there was material upon which the majority were entitled to reach their conclusion. It appears to us that all relevant factors have been considered. We see no reference to irrelevant factors, and we do not think that the majority view could be criticised as unreasonable or plainly wrong.In those circumstances this appeal must fail.