Singh v Walsall Metropolitan Borough Council [1997] UKEAT 1360_95_1401

EAT
Singh v Walsall Metropolitan Borough Council
[1997] UKEAT 1360_95_1401 · 1997-01-14
MR JUSTICE KIRKWOOD : This is an appeal by Mr Singh from a decision of an Industrial Tribunal at Birmingham entered in the register on 9 November 1995, dismissing Mr Singh's application under the Race Relations Act 1976 .Mr Singh, the Appellant, was employed by Walsall Metropolitan Borough Council in two capacities between 1989 and 1995. Of primary relevance to this appeal was his employment by Walsall's Housing Services as an Assistant Neighbourhood Officer from 1989 to 1995; that was a permanent position occupying 18½ hours a week. Secondly, between 1992 and February 1994 Mr Singh was employed by Walsall Social Service Department as a Community Support Worker, also for 18½ hours a week.Mr Singh has made a number of written complaints about his treatment in that position and he says that he resigned from it in 1994. In this appeal nothing turns on that employment by Social Services. In fact, Mr Singh applied to an Industrial Tribunal in 1994 in respect of complaints of sex discrimination and that application failed.On 19 September 1994 Mr Singh was suspended on full pay from his employment as an Assistant Neighbourhood Officer. He did not go to work thereafter. His employment was terminated on 17 January 1995. On 12 April 1995 Mr Singh applied to the Industrial Tribunal in respect of "discrimination and victimisation". The detail of his complaint was, and I quote again:
"I was denied promotion. I was passed over by less experienced and less qualified people in recruitment and promotion because of my ethnic background. Full details to follow."
The full details followed in due course. In them Mr Singh outlined his experience and suitability and application for a number of posts and promotions and his belief that time and again he was passed over in favour of less experienced and less well qualified applicants. He said, and I quote:
"I strongly emphasise that I am being continuously victimised, discriminated against and harassed and I feel that I am unfairly treated because I am black and a victim of circumstances.
It was a deliberate discrimination and victimisation against me in a way I was refused or deliberately omitted to afford promotion."The Industrial Tribunal reminded itself that it was bound by section 68(1) of the Race Relations Act 1976 and that it could not consider a complaint under section 54 unless it was presented to the Tribunal before the end of the period of three months beginning when the last act complained of was done.The Tribunal also reminded itself that it could consider such complaint, claim or application made out of time if, in all the circumstances of the case, it considered it just and equitable to do so (section 68(6)).Mr Singh's suspension was on 19 September 1994 and he was not at work after that. The Industrial Tribunal went to great pains to establish as a fact, which it found, that Mr Singh's complaint was not with his dismissal, it was because of his race. He was not complaining of his suspension or dismissal as an act of discrimination. His complaint was:
"... about the lack of promotion and promotional opportunities given to him, from 1989 to the late Summer, early Autumn of 1994. ..."
Accordingly, the Industrial Tribunal found that Mr Singh's complaints to the Tribunal were clearly out of time because the last possible complaint must have been before 20 September 1994 and Mr Singh's application to the Tribunal was not received by Central Office until 14 April 1995, some 29 weeks or over 6 months later.In exercising its discretion under section 68(6), the Industrial Tribunal found Mr Singh to be a highly intelligent man with a good grounding of the issues that have to be decided by Industrial Tribunals and, indeed, the benefit of past experience of application to Industrial Tribunals. The Industrial Tribunal weighed that with the purpose of the three month time limit and the absence of any proper explanation for the delay of six months or more. The Industrial Tribunal dismissed the complaint.In this appeal two points are argued by Counsel on Mr Singh's behalf. First, that in exercising its discretion the Industrial Tribunal failed to consider whether it was legitimate for the Appellant to hesitate or defer his application, whilst facing disciplinary action, for fear of aggravating his employer. That point was never made by Mr Singh to the Industrial Tribunal. On the contrary, it is absolutely plain that the lateness of Mr Singh's application was attributed by him to ignorance as to time limits. He told the Tribunal that had he appreciated the position, he would have applied sooner. That is the very antithesis of the argument now presented. It is plain to us that the Industrial Tribunal went out of its way to try to find some basis on which to exercise its discretion under section 68(6) in Mr Singh's favour. But, and I quote: "He has not given us a proper explanation".The point now made was plainly not made before the skeleton argument arrived at this Tribunal today. There is no evidence that this matter had effected Mr Singh's mind. The argument is unreal and we reject it.The second ground of appeal is directed to the Industrial Tribunal's finding that the last date for any possible complaint was 20 September 1994, the time of suspension. Counsel however refers us to Mr Singh's manuscript addendum to his application. That lists a whole catalogue of historical matters directed to the failure of a great many applications for promotion. At the foot of the 9th out of 12 pages is this passage:
"Last application for A.H.O. 15.7.94 - not even acknowledged, it seems to me that the application had been pushed under the carpet."
Counsel referred us to the decision of the Employment Appeal Tribunal in Clark v Hampshire Electro-Plating Co Ltd [1992] ICR 312. From that Counsel drew the proposition that a cause of action may not arise until a determination has been made upon the round of applications for a position and Counsel submitted that, in the absence of enquiry and evidence as to the outcome of the process of selection for the position for which Mr Singh applied on 15 July 1994, it cannot be said that the last act of possible complaint must have been on or before 20 September 1994. Accordingly, it is said that the case should be sent back to the Industrial Tribunal for that enquiry and a finding upon it.The Industrial Tribunal was well aware of the course of Mr Singh's promotion applications and referred to it in the passage I have already quoted. No point was made by Mr Singh to the Industrial Tribunal that this 15 July application was outstanding. He gave no indication that, in the absence of acknowledgement, he had chased it up. He had done absolutely nothing about it. He made no complaint at inaction on it. Indeed, in his written presentation he had dealt with it in terms that I quoted:
"My last application was not even acknowledged"
. The fact is that he plainly had ample opportunity to pursue or make complaint about the process of that application and did not do so either punctually or at all, at the time of his suspension; and did not do so furthermore until he mentioned it in the addendum as part of the narrative to his April 1995 application. His submission that Mr Singh potentially had a continuing cause of complaint does not accord with practical reality.We have reached the clear conclusion that there is no sound basis for interfering with the finding of fact of the Industrial Tribunal that the relevant date for the running out of time was 20 September 1994.Accordingly, that second ground of appeal fails and this appeal must be dismissed.