Mirikwe v Mental After Care Association [1998] UKEAT 1161_97_2303

EAT
Mirikwe v Mental After Care Association
[1998] UKEAT 1161_97_2303 · 1998-03-23

JUDGE N BUTTER QC :

This is an appeal by Mrs Mirikwe against a decision of an Industrial Tribunal sitting at London (North) on 25 June 1997. The extended reasons were sent out on 7 July 1997.The Chairman and two Members considered the preliminary issue and reached the unanimous decision that, having regard to the time limit contained in section 68 (1) of the Race Relations Act 1976 , that is to say three months, the Tribunal did not have jurisdiction to consider the Applicant's complaint of race discrimination.The Applicant was represented by a Solicitor at that hearing. The Respondents were represented by Counsel. Having considered the evidence the Tribunal made the following findings of fact:
"(a) The Applicant was employed by the Respondent from 1 November 1995 as a Deputy Project Manager at a Care Home owned by the Respondent ... The terms under which she was employed provided that her appointment would be subject to probationary reports at three and six month intervals. Although her first report was satisfactory her second report was not and on 4 June 1996 the Respondent terminated her employment by giving one month's notice in writing. (b) The following day the Applicant wrote to the Respondent to give her views on the matter and to indicate that she might have been the victim of race discrimination. On 16 and 21 June she wrote further letters which made a number of points."
It is important to note the next sub-paragraph, in paragraph 2 of the reasons:
"(c) At the end of July she consulted a solicitor whom she saw on two occasions before an Originating Application was presented on 25 September. She showed her letter of 5 June to the solicitor but it was agreed that the complaint would allege breach of contract as opposed to race discrimination."
Today, on behalf of the Appellant, we are told that she had not agreed to that. She had merely been told of that by her Solicitor. She, herself, had little or no knowledge of the law. The fact is, however, that she had consulted a Solicitor who did represent her and who reached the decision to which I have already made reference.In November and December there was correspondence which led to a pre-hearing review on 10 February. Subsequently, there was an interlocutory hearing. The Appellant decided to withdraw her instructions from her first Solicitor, but in relation to the hearing in February a successful application was made for the complaint to be amended to a complaint of race discrimination. That amendment was permitted on the basis that there would be a preliminary hearing in respect of the question of jurisdiction.Then the Tribunal in their extended reasons went on to consider specifically the provisions of section 68, including sub-section 6 of that section, which I need not reiterate in this judgment. They go on to say:
"The act complained is the manner in which the probationary report was undertaken by the line manager. The report is dated 3 June and it was only two days later that the Applicant raised allegations of race discrimination with the Respondent."
The Tribunal then go on to set out quite briefly some points made by and on behalf of the Applicant and by and on behalf of the Respondent and then says specifically:
"The principles are set out in Hutchison v Westward Television Ltd 1977 IRLR 69. While we appreciate that we do have a wide discretion to do what we think is just and equitable in the circumstances we do not believe that the Applicant has raised any argument which would persuade us to exercise our discretion in her favour in this matter. The application is therefore dismissed."
The summary of arguments was brief and does not go into much detail. It is however, important to turn to the leading case of Hutchison v Westward Television Ltd [1977] IRLR 69, at page 701. The facts there are different, as the Appellant's husband has stressed in the course of his argument to us, but the principle set out there is one which has been applied, time and time again in Industrial Tribunals and before the Employment Appeal Tribunal, in considering the question of the exercise of discretion, either in relation to sex discrimination or in relation to race discrimination. I need refer to only one paragraph in the headnote which says:
"Because the Industrial Tribunal has such a wide discretion, the task of the appellant if he is to succeed on appeal is a heavy one. He must show that the Industrial Tribunal demonstrably took a wrong approach to the matter, or that it failed to take into account facts which it should have done, or that the decision was so unreasonable in all the circumstances that no reasonably instructed Tribunal could have reached it."
At the preliminary hearing of the present case, the President in giving reasons why the matter should proceed to a full hearing adverted to the question that the relative prejudice to the parties should be taken into account. That is to say, one should look to see the prejudice to the Applicant if the application is rejected, prejudice to the Respondent if it is granted. Inevitably, in any case where an application of this kind is rejected, there is prejudice to the Applicant who is therefore deprived of presenting the case which he or she wished to do. That must be obvious to any Tribunal.Before this hearing today, the Appellant's husband has set out a number of additional matters. He says that the Appellant has been greatly distressed, depressed, hurt and so on. It will be recalled however, that she did give evidence to the Tribunal.The Tribunal below has not gone into the matter in great detail, but in the end we have to consider the test which was applied in Hutchison . We find it impossible to say that they erred in law or reached a conclusion which no reasonable Tribunal could have reached.We have taken into account the emotional, eloquent and effective plea by the Appellant's husband. We express some sympathy for the Appellant, but in the end we cannot say that we have been led to the conclusion that the Tribunal erred as a matter of law, or that we can properly set aside their decision.In these circumstances and for these reasons it follows that we are unanimous in our decision that the appeal fails and must be dismissed.