Osajie v London Borough Of Camden [1997] UKEAT 317_96_1401

EAT

Osajie v London Borough Of Camden

[1997] UKEAT 317_96_1401 · 1997-01-14

MR JUSTICE MORISON (PRESIDENT) : This is an appeal from a decision of an Industrial Tribunal Chairman sitting alone at London (North) on 19th January 1996. By his decision he ruled that the Industrial Tribunal did not have jurisdiction to consider the applicant's complaint of race discrimination.

Ms Osajie had brought a complaint alleging race discrimination against the London Borough of Camden. She presented her complaint to the tribunal on 2nd August 1995. She was alleging that she had been discriminated against under section 4(1) of the Race Relations Act 1976 in respect of the way Camden Borough Council dealt with her application for employment.

She was told on 21st February 1995 that her application for employment had been unsuccessful because a bad reference had been received from the Council itself. She had previously been offered the post in question by the Council, subject to a satisfactory reference.

Having received the letter of rejection, the applicant immediately thereafter wrote to the Chief Executive of the Camden Borough Council the following day, asserting that it held itself out as an equal opportunities employer, and inviting them immediately to investigate the matter because she believed that she had lost the post which had been offered to her due to a malicious, untrue and unfair reference. She had previously been employed by the Council between 20th June 1994 and 10th October 1994 when she had worked on a short-term contract in their district office at Caversham. It was her view that through racial motivation a person at her place of work had maliciously made sure that she got such a reference that she was not to be given the job which she had been offered.

The behaviour by Camden Borough Council thereafter was less than correct. On 24th February 1995, the Chief Executive's office responded indicating that she would be given a response to her letter of complaint. Nothing happened, and on 31st May 1995 her own local councillor, who is a member of the London Borough of Hackney, wrote to the Chief Executive's office saying that he was seriously concerned that no action appeared to have been taken to deal with her representations. There was no response to that letter.

On 13th June 1995 the applicant consulted solicitors who wrote to the London Borough of Camden and an acknowledgement was received by letter dated 21st June 1995. Nothing further happened, and on 5th July 1995 the Councillor from the London Borough of Hackney wrote again reiterating his very serious concern. That produced no response. On 10th July 1995 a response was sent to the solicitors. That was immediately followed by further short correspondence, and subsequently the application was presented to the Industrial Tribunal.

Under the statute, a complaint must be presented within three months of the act complained of. Where that does not occur, the Industrial Tribunal has a discretion under the statute to extend time where it considers it just and equitable to do so.

In this case it is plain that the applicant wished to find out how it came about that she had been offered a job by the London Borough of Camden, subject to reference, and should then be turned down as a result of an unsatisfactory reference from the London Borough of Camden, who must have been aware of her employment history before she was offered the position in question.

She was entitled to have a response to her letter, and was, in our judgment, acting perfectly responsibly when she sought further information from the Council, which was not provided to her for a period of 4½ months.

Against that background, we turn to the decision of the Industrial Tribunal which in paragraphs 2 and 3 sets out the respective arguments presented to the Chairman. Amongst the arguments addressed on behalf of the London Borough of Camden, was a proposition that if jurisdiction was accorded the applicant, the respondent Council would be prejudiced by the delay. In paragraph 4 of the decision, the learned Chairman sets out the relevant provisions of the statute, and continues:

"In this case the Applicant became aware of the position on 21 February 1995. She knew that a job offer from the Respondent had been withdrawn by reason of a bad reference. The reference in question was a report on her previous spell of employment within the Respondent's organisation. She tried to pursue the matter in correspondence with the Respondent. Not only was her letter ignored but also those of others who wrote on her behalf. Eventually she consulted solicitors but they fell into the same trap. In the event her Originating Application was not presented until 2 August which was almost six months after the act complained of was done. In the circumstances I find that the Originating Application has been presented out of time and am not prepared to exercise my discretion on the basis that it is just and equitable to do so. I find that the matter complained of arose in February and not in July as suggested on behalf of the Applicant."

It seems to us, with great respect to the learned Chairman, that he has provided no reasoning process by which he arrived at his conclusion that it was not just and equitable to extend time in this case. He appears to have based his decision on the fact that the matter arose in February and not in July as had been suggested by the applicant. It seems to us that in exercising his discretion, the Chairman of the Industrial Tribunal was bound to weigh up the relative merits of granting an extension of time on the one hand, and not granting it on the other. It would have been pertinent for him to have applied his mind to the submission which had been made, that to extend time would prejudice the respondent Borough. He does not address his attention to prejudice in any way, nor does he consider the merits of the applicant's belief that it was correct for her to raise the matter in correspondence before embarking on tribunal proceedings. It seems to us that those were matters which he should have taken into account.

Miss Morgan, on behalf of the Council, says that this was not a case where the tribunal was obliged to indicate his reasoning process beyond that which was contained in paragraph 4. She says that the correspondence, although perhaps regrettable on the part of the London Borough of Camden, was not itself an act of discrimination with which we agree, and she says that it would not become just or equitable to extend time unless some new fact came to light as a result of the investigations carried out by the Council.

We do not agree. It seems to us that an applicant in the case of Ms Osajie would not know whether new information would come to light or not when she was seeking further information from the Council. It seems to us that she was perfectly entitled to seek that information before deciding whether or not to embark upon a claim of race discrimination, which is of course a serious allegation to make. If the test was that which was suggested by Counsel, it seems to us that an employee would be put into an impossible position, since he or she would not know whether new information would or would not come to light when pursuing enquiries.

It was also suggested to us in argument, that if we were to accede to this appeal, it would open the floodgates. We do not agree. It seems to us that every case must be looked at on its own facts. It was manifestly relevant for the Industrial Tribunal Chairman to take into account Camden's complete failure to deal with this allegation of a serious nature for a long period of time. They hold themselves out as an equal opportunities employer. It seems to us that they must recognise that part of their responsibility as such, is to deal with complaints timeously as and when they are made. This they singularly failed to do.

In a case such as this, it is of importance that parties should attempt to resolve their differences if possible before resorting to the tribunal procedure. In our judgment, the applicant in this case could not be criticised for holding back from presenting her Originating Application until after Camden had chosen to provide a substantive reply to her letter.

Accordingly it seems to us manifestly clear on the facts of this case, that it was both just and equitable that time should be extended so as to enable the Industrial Tribunal to adjudicate upon a serious complaint of race discrimination.

We have no hesitation in saying that the learned Chairman has misdirected himself in this case as to the factors which he was take into account in the exercise of his discretion, and the weighing process that is required by the language of the statute.

Accordingly on the facts of this case, we propose to allow the appeal, and express the hope that the application can now be adjudicated upon by the Industrial Tribunal in as speedy a way as their commitments permit. Accordingly this appeal is allowed.