Reilly v Argos Distributors Ltd [1997] UKEAT 613_97_1712

EAT
Reilly v Argos Distributors Ltd
[1997] UKEAT 613_97_1712 · 1997-12-17
MR JUSTICE LINDSAY : We have before us by way of preliminary hearing an appeal of Mr A. Reilly against Argos Distributors Ltd. On 10 December 1996 there was a hearing before the Industrial Tribunal Chairman, Mr R. Postle, sitting alone, which decision was promulgated on 4 April and the decision was that "the Applicant has not presented his claim within the three month period and therefore his application for a claim under the Sex Discrimination Act is hereby dismissed".The matter begins with a conventional IT1 Application to an Industrial Tribunal of 20 June 1996. In that Mr Reilly said that his employment (this is box 8) ended on 29 March 1996 and box 9 said this:
"If your complaint is not about dismissal, please give the date when the action you are complaining about took place (or the date when you first knew about it) [and the date is filled in as April 1996]. "
Box 10 says: "Please give full details of your complaint" and is completed, so far as relevant, as follows:
"I had asked both the IT Director and System Planning Manager about changing my hours to part time on both occasions. This was refused on 30 August 1995, at a meeting with the System Planning Manager. My request was supported by a letter from my GP asking them to take into consideration my condition. I was told they did not have the facilities for part time working."
And it goes on a little longer but 30 August 1995 is mentioned as the date on which it was refused that Mr Reilly should be permitted part-time working. It was that refusal, it seems, that is said to have represented sex discrimination. Dismissal as such is not mentioned at all in the IT1.On 15 July 1996 the employer responded with an IT3 saying, in effect, that the employer had no knowledge of the particular incidents which Mr Reilly was complaining about and on 17 July the respondent employer asked the Industrial Tribunal to request particulars from Mr Reilly. At that stage it does not seem that the time-bar point was taken but it might be that the time-bar point was not taken because it was not clear what particulars would emerge.On 10 December, as we have indicated, there was a hearing before the Chairman alone and on 4 April the decision, which we have already read, was promulgated. On 13 May there was the Notice of Appeal and, so far as relates to the grounds asserted by Mr Reilly, they are these:
"They erred in law by saying my dismissal was not in itself discriminatory, as this act was the final one. My appeal was within time. Argos are aware they sexually discriminated against me, which is why they are using every underhand tactic to try and avoid a full hearing. As their excuse for dismissal was incapacity - this incapacity must be considered for any delay, as I have to wait for a good day to achieve anything."
It is impossible to read the IT1 as a complaint that Mr Reilly had been dismissed by way of a discriminatory act. We have been through the reasoning of the Chairman in his Extended Reasons and we have been unable to find any fault with them. He refers to Section 76(1), the section which introduces the time-bar. He sets out, at length, Section 76(5), the section which enables extension of time to be granted where "it is just and equitable in all the circumstances of the case". He investigated, with regard to the evidence that he heard, the dates of the particular matters complained of; he accepts the Respondent's evidence as to Christmas 1994 and 30 August 1995 being material dates of incidents relied upon as incidents of sex discrimination. As to that, he says this:
"Mr Reilly did not in his evidence before this Tribunal suggest he was discriminated in March 1996 by his dismissal for incapability or that he had again requested part-time working."
And, continuing, the Chairman said:
"That being so it is clear that the acts of discrimination that the Applicant complains of arose in December 1994 and August 1995. The Tribunal do not accept in law or otherwise that such acts were continuing acts and therefore the date upon which the Applicant must commence any proceedings against the company must run three months from the date of the last act alleged namely August 1995. Clearly on that basis alone the Applicant is out of time."
Then the Chairman moved on to the discretion and he gives four reasons in his paragraph 9. He bears in mind that the Applicant was a member of a union throughout his employment and would have had the benefit of advice from the union. He mentions, secondly, that the company had a grievance procedure which the Applicant had used prior to his dismissal and that the question of part-time working as a grievance was not raised. He mentions that he had sought advice almost immediately from the Citizens Advice Bureau and that nonetheless he did not pursue a complaint until it was very late and, indeed, too late.Today this appeal was listed to come on at 10.30 am. It is now two minutes to 12 and nothing has been heard from Mr Reilly. There is, undoubtedly, bad weather about, but we have heard nothing to suggest that any attempt at a message being sent to the Employment Appeal Tribunal has been made by Mr Reilly and so we go ahead in his absence.We do not have Notes of Evidence and we have nothing before us to conclude, in any way, that the Chairman was at all perverse or otherwise at fault. Section 76(5) is a discretion given by Parliament to the Industrial Tribunal and it is a discretion which is not easily overturned. Here we are able to detect no error of law in the decision of the Chairman and accordingly dismiss the appeal.