Hudson & Needham v Gora [1997] UKEAT 308_97_1403

EAT
Hudson & Needham v Gora
[1997] UKEAT 308_97_1403 · 1997-03-14

JUDGE PETER CLARK :

On 4th February 1997 Mohammed Gora presented a complaint of sex discrimination to the Industrial Tribunal. He contended that the act of discrimination complained of took place on 6th November 1996. If that date is correct, then the claim was presented within the ordinary three month time limit provided for s.76(1) of the Sex Discrimination Act 1975 ["SDA"].In his form IT1 he gives the following details of his complaint:
"The background to my application to the Industrial Tribunal is given under Paragraph 2 of my RRA/SDA questionnaires (copies attached), dated the 4th November 1996 and served on the 5th November 1996. The Respondents deliberately failed to provide with the answers requested in the questionnaires. I received a letter dated the 6th November 1996 from the Respondent [1] (copy attached], informing me that the letter was in full and final answer to the questionnaires. In the letter it was stated:
"You were not considered suitable for interview based on your CV. The standard of candidates for this job was very high and we were able to choose from a number of candidates who had specific experience in a legal practice doing precisely the kind of work which we required. You did not fall into the category."
I have evidence available which clearly proves that I was treated less favourably than other candidate(s) were in similar circumstances, in circumstances suggesting that the reason for such treatment must have been due to me being of the opposite sex to the one preferred by the Respondents. This evidence also proves that the reason given to me above for not shortlisting and/or inviting me for an interview, is in fact untrue and/or is not applied equally.My complaint is of direct discrimination contrary to Sections 1, 2 and 6 of the Sex Discrimination Act 1975, which arises from the failure of the Respondents to select me for shortlisting and interview for the vacant post of Receptionist/Typist. I was not shortlisted and/or invited for an interview where my paper qualifications and experience fulfilled the requirements set out in the job advertisement(s). In response to my complaint of possible unlawful discrimination, as set out in the questionnaires, the Respondents could not give me a convincing reason for refusing me an interview (and the appointment).My complaint of direct discrimination is based upon the fact that other candidate(s) who were no more suitable than myself, were in fact treated more favourably. I have sound grounds to believe that my job application was not considered without any discriminative connotations, and in accordance with any equal opportunities policy.I wish to make a further complaint pursuant to Section 74(2)(b) of the Sex Discrimination Act 1975, which arises from the deliberate failure of the Respondents to provide me with the answers requested in the SD74 questionnaire."On 28th February the respondent, a firm of solicitors, entered a Notice of Appearance under cover of a letter of that date. In that letter they asked that the matter be listed for a preliminary hearing in order both to clarify the issues and for a ruling as to whether or not the complaint had been filed out of time.By letter dated 4th March 1997 from the Leeds Industrial Tribunal this reply was sent to the respondent:
"Thank you for your letter dated 28 February 1997. The above case had been referred to a Chairman of the Industrial Tribunals who has directed as follows:
Originating Application received 4 February 1997. Application in time. No Preliminary Hearing.It is clear from Application that the allegation is one of Sex Discrimination and that the questionnaires which relate to Sex Discrimination and Race Discrimination is merely to provide background.

A notification of a hearing date will follow in due course."

Against the Chairman's apparent decision that the claim was in time the respondent now appeals.In their Notice of Appeal, the grounds of appeal are stated thus:
"An IT1 must be presented within 3 months of the act alleged discrimination, SDA 1975, section 76. The advertisement for the position was advertised in the local Bradford Telegraph & Argus paper in early October 1996. Interviews for suitable Applicants took place shortly after that date and by 17th October 1996 the position had been filled and the successful application notified. The Applicant's application was received by the Tribunal on 4th February 1997. The Applicant was made aware that the position had been filled when he telephoned the Appellant's offices on the 1st November 1996."
The applicant's representative, Mr Hussain has submitted written representations in the appeal by a faxed letter dated 12th March. He supports the Chairman's decision on the following grounds:
"1) The Industrial Tribunal had not erred in law in directing that the Applicant's IT1 Application was filed in time.
2) The act of the alleged discrimination extended over a period of a number of weeks, and was inferred to the Applicant by a letter dated the 6th November 1996 from the Appellants.3) The letter from the Appellants was received by the Applicant a few days later, and it confirmed to the Applicant that he had sound grounds to complain he had suffered unlawful discrimination, and to institute legal proceedings.4) It was quite reasonable for the Applicant to treat the date of receiving the above letter as the end of the [extended] act of the alleged discrimination.5) It would be right and proper, and in the interest of justice for the Applicant's case to proceed."It is therefore apparent that both parties were proceeding on the basis that a Chairman has decided that the claim is in time. We are bound to say that in our view the letter of 4th March can bear no other interpretation. Indeed that was basis upon which Miss Nedd appeared to argue the case on behalf of the respondent today.However, by letter dated 13th March 1997 the Industrial Tribunal wrote to the Registrar in these terms:
"... the Chairman finds the facts that there is an appeal somewhat strange in view of the fact that he has simply made a decision not to have a preliminary hearing on the basis that the application appears to be in time subject to argument to the contrary at the principal hearing, that is to say, given the provisions of the legislation, it seemed to him that a separate hearing on this limited issue would be unlikely to result in any saving in time and costs to the parties."
If that is indeed what the Chairman intended to convey in the letter of 4th March, the message did not come across.We are inclined to treat the letter of 13th March as a review by the Chairman of his own motion of his original decision that the claim was in time under Rule 11 of the Industrial Tribunal Rules of Procedure 1993. In that event the appeal becomes academic, and this case may be listed for hearing in the normal way. At that hearing it will be open to the respondent to take the limitation point.If we are wrong about the review, then in our judgment this appeal must be allowed for the following reasons:(1) It is quite impossible to decide the jurisdictional point of limitation raised by the respondent without holding a hearing at which evidence is given and submission received from the parties.(2) The first question of fact and law to be decided is 'when the act complained of was done' s.76(1). The complaint here is one of direct sex discrimination either in the arrangements the respondents made for the purpose of determining who should be offered employment, or in the refusal or deliberate omission to offer the applicant that employment. SDA s.1(1)(a) read with ss.2 and 6(1)(a) or (c). By s.76(6)(c) a deliberate omission shall be treated as done when the person in question decided upon it. Thus it is for the Industrial Tribunal to decide on the facts when the respondent decided not to offer the job to the applicant. The respondent contends that that date cannot be later than the date on which the post was filled by the successful candidate, that is by 17th October 1996. On that basis the complaint was presented out of time.(3) Alternatively, the applicant relies upon a continuing act of discrimination under s.76(6)(b) of the SDA, extending over a period of time ending on 6th November 1996 when the respondent replied to the questionnaires sent by the applicant under both SDA and Race Relations Act 1976 . However, he was first informed, on the respondents case, that the post had been filled, by telephone, on 1st November 1996.(4) Even if the claim was presented outside the primary limitation period it will be necessary for the tribunal to consider whether it is just and equitable to extend time under s.76(5) of the SDAIt seems to us that none of these issues are addressed in the Chairman's original reasons. In fact, no relevant reasons for finding that the claim is in time are given. Meek v City of Birmingham District Council [1987] IRLR 250 , 251.In these circumstances we would set aside the original order of the tribunal and direct that the case be listed for a full hearing at which the issue of limitation may be canvassed, in addition to the merits of the case.