Leeds City Council v Henderson [1997] UKEAT 938_97_1909

EAT

Leeds City Council v Henderson

[1997] UKEAT 938_97_1909 · 1997-09-19

MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing has been to determine whether the Notice of Appeal, coupled with a skeleton argument in support, raises an arguable point of law fit for hearing before a full division of the Employment Appeal Tribunal at which the other party to the appeal would be present.

Essentially, the decision appealed against was what one might describe as a preliminary decision by an Industrial Tribunal held at Leeds on 12th June 1997. They concluded that although the complaints of race discrimination made by Mr Henderson had been presented to the Industrial Tribunal out of time, in the exercise of their discretion under s.68(6) of the Act, they considered that it was just and equitable nonetheless to permit the complaints to proceed. The essence of their decision is to be found in paragraphs 4, 7, 10 and 11:

"4. The applicant's complaint is to the effect that he was being discriminated against for a period of time (the Tribunal not finding on what the time was) which culminated in his making complaints in July 1996. He made complaints by way of the internal investigatory process in accordance with the internal procedure. That procedure was ongoing when the applicant wrote resigning his employment in September 1996 having been suspended from employment two days before his letter of resignation on 13 September 1996, his letter of resignation and his resignation from employment being effective on 11 October 1996.

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7. The applicant had previously made an application to an Industrial Tribunal approximately two years before and had ultimately withdrawn that application, he alleged, on terms of agreement reached with the respondents. The Tribunal did not go into that matter but it is apparent that he was aware that he could make such an application. He explained to the Tribunal that he did not make application to the Industrial Tribunal in July 1996, or subsequently, or indeed when his employment terminated because he wished the internal procedure to be completed and it was only when he was dissatisfied with that procedure and the way it was concluded that he took advice on proceeding to an Industrial Tribunal. He maintains that at no time did he take advice on proceeding to a Tribunal between July 1996 and the end of January 1997 nor was he advised as to the time limits involved although it is right to say that he was advised by his Trade Union on the matters of his complaints on July 1996 and subsequently. It is also a fact that the applicant, when lodging his complaints with the respondents in July 1996, also indicated that he would be intending to terminate his employment in due course as he subsequently did so effective on 11 October 1996.

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10. The applicant's case was entirely based on the fact that, bearing in mind that he had correctly and properly instigated an internal procedure and bearing in mind that he could properly have thought that that procedure would proceed as would be expected and was only informed at the end of January 1997 that it was not doing so and was not aware of what had happened to certain of the other parties and the fact that he had been suspended in September 1996 (the reasons for which might well have been in dispute in any event), it would be just and equitable in the circumstances to allow his complaint to proceed.

11. The tribunal considered all the factors in this case, both for and against the application being allowed to proceed as presented to the Tribunal and as set out in this decision and on balance decided that they ought properly to exercise their discretion in this case and find that it was just and equitable to allow the matter to proceed to a full hearing and therefore find that the Tribunal should have jurisdiction to hear the applicant's complaint of racial discrimination."

On behalf of the Leeds City Council, in a capable and well presented argument, Miss Vickers had made, I think, three points.

The first is number 2 in her skeleton argument, which is that the Industrial Tribunal failed to identify the specific complaints which were being made by the applicant and therefore, they failed to address for the purposes of s.68(1) of the Act when the acts complained of were done, and therefore, when the complaint ought to have been presented to the Industrial Tribunal. By failing to do so, it is argued that the tribunal disabled itself from the opportunity of discovering that a complaint might have been more than three months old by the time it was looked at or complained about by the applicant in the Summer of 1996. By doing so, they have disabled, so it is argued, themselves from assessing, truly, the justice and equity of the case.

The second point that was taken, although it is logically the first, is that the tribunal were wrong to have concentrated on the investigation which was carried out in June or July 1996. They appear to have taken the view that that was an investigation into allegations relating to race, when in fact, the investigation was not concerned with dealing with racial aspects. Accordingly, if that were the position, when the Council ceased to carry out the investigation after the applicant had ceased to be employed, it is argued that the Industrial Tribunal would have appreciated that there was no connection between the ceasing of an investigation and the making of complaints of racial discrimination, because that was not what the investigation was concerned with.

The third point that is made is that the tribunal have not been even-handed in the approach which they have made to the question of justice and equity. They have not looked at the prejudice which would be sustained by the employers if these allegedly stale matters were allowed to proceed.

We should say straight away that in every preliminary hearing of this type, the tribunal is faced which a difficulty. The Industrial Tribunal was doing its best not to trespass on a decision which would have to be taken by a subsequent tribunal, assuming that the matter was allowed to proceed. This difficulty was very much in the mind of the Industrial Tribunal in this case, as many of the references during the course of their decision to the need for caution demonstrate. It seems to us in these circumstances, it is somewhat unfair to criticise the Industrial Tribunal decision for failing to go into rather more detail than they have done in giving their decision.

It seems to us in this case, that the Industrial Tribunal were entitled to proceed on the basis that they were dealing with a case where a black employee was being harassed on the grounds, possibly, of his ethnic origin, by his senior managers, as a matter of policy, extending from February 1996 through to the time when he ceased to be employed. I do not mean by saying that, that at a subsequent hearing an Industrial tribunal will be satisfied that there was any such policy, or that he was making complaints of unlawful discrimination during the course of his employment. But that is a matter which will require to be investigated, as it seems to me on the face of the statement of Mr Henderson. It was quite appropriate for the Industrial Tribunal to have reached the conclusion that that was, in essence, what was being complained about, and on that basis they should determine whether his complaints were presented within time. If that is right, it seems to me that there is no merit in the suggestion that the tribunal ought to have identified each and every act complained of, so as to put a time to it, so that they could then have asked themselves how much time had elapsed, and therefore, judged better whether time should be extended or not. It seems to me, that bearing in mind the nature of the complaint which was made, they were well entitled to take a rather more general approach to the exercise of their discretion than was being suggested by Counsel.

In relation to the second point that was made, that is that the internal investigation was not being carried out into allegations of racial discrimination, we would wish to say no more than that will be an issue no doubt for the subsequent tribunal to determine. It seems to us that on the basis of the complaint which is being made now, it is being asserted by Mr Henderson that that was part of the background to the matters which were being investigated, as the employers knew or ought to have known. On the basis, therefore, of his allegation without adjudicating on its correctness, the Industrial Tribunal were entitled to say what they did at paragraph 4 of their decision.

Whilst we can understand that it would have been correct for the Industrial Tribunal to weigh the factors for and against extending time, which would include any prejudice to be sustained by the respondents, we are not persuaded that they have failed in their duty to do so. The test of what is just and equitable is a matter falling very much within the discretion of the fact finding tribunal. We would need considerable persuasion in any particular case that an Industrial Tribunal has somehow misdirected itself, either directly, or implicitly as an allegation of perversity suggests. We are not persuaded that the Industrial Tribunal in this case have failed to do justice between the parties.

Finally, we will deal with the point which was made, which was that the Chairman obviously constantly interrupted the advocate for Leeds City Council during the course of the presentation of the evidence. They plainly did seek to keep a tight control on the extent to which the facts were investigated for the reasons which I have endeavoured to set out, and to which they refer themselves in their own decision. We do not think that anything that they have done in that respect amounted to an injustice in any sense. They had to take a decision under s.68(6) as to whether it was, in all the circumstances of the case, just and equitable to extend time. They have extended time, that is a decision which they were entitled to arrive at on the material before them. We therefore do not consider that there is any arguable point of law fit for hearing at a contested appeal, and accordingly, the appeal will be dismissed.