Ayobiojo v Nalgo-Unison Trade Union [1998] UKEAT 1264_96_1601

EAT
Ayobiojo v Nalgo-Unison Trade Union
[1998] UKEAT 1264_96_1601 · 1998-01-16

JUDGE C SMITH QC :

This is an appeal by Mr Ayobiojo, the Appellant as we shall call him, against a decision of an Industrial Tribunal sitting at London (South) on 17 and 18 June 1996, when the Industrial Tribunal decided unanimously that the Appellant's complaint under the Race Relations Act 1976 against the Respondent Union was out of time and that it was not just and equitable to consider the complaint out of time.By his original Notice of Appeal the Appellant sought to appeal both against the finding that his application was out of time and also against the finding that it was not just and equitable to extend time. However, it is clear from the decision of the Appeal Tribunal, at the hearing of the Appellant's ex-parte application for leave to proceed to a full hearing of his appeal, that the Appellant was only granted leave to pursue the ground of appeal that his complaint was not out of time.He was expressly refused leave to appeal on the ground that the Tribunal had erred in holding that it was not just and equitable to extend time. Thus, we have not heard any submissions or considered any material relevant to that ground of appeal. Thus, the sole point in this appeal is the narrow, albeit important issue, as to whether the Industrial Tribunal was correct in law in holding as it did, in paragraphs 20 and 21 of the Extended Reasons as follows:
"20. It is the decision of the Tribunal that the last act complained of for the purposes of this complaint was 23 March 1993. That was the date that the Applicant was told orally, and in writing, that the Respondent would not assist him with his forthcoming Tribunal hearing against his former employer.
21. We accept the Respondent's submission that the letter of 24 June 1993 simply confirms that decision and we find therefore that it is not a different or separate act within the meaning of section 68(1) of the Race Relations Act 1976 . The Originating Application was registered on 24 September 1993. The Tribunal therefore finds that the Originating Application was lodged outside of the three months' time limit and is therefore out of time. For the sake of completeness, we find that the act of refusal on 23 March 1993, was a single act and did not form part of a policy or regime that could be considered as a continuing act of discrimination."The background to the matter and the relevant facts, as found by the Industrial Tribunal, are set out in detail and, in our judgment, with care, in paragraphs 5 to 16 of the Extended Reasons to which reference should be made for the full details of the matter and of which the following is no more than a brief summary.In short, it appears therefrom that the Appellant, having been dismissed from his employment with the London Borough of Lambeth, made a complaint of unfair dismissal and, we are told, and we accept, under the Race Relations Act 1976 in August 1991. By June 1992 the Appellant was complaining that his union UNISON were not assisting him as they should have done with regard to representation in his case against Lambeth. Thus, matters were taken up by Mr Rogers, the Assistant Branch Secretary.For a time nothing more was done while the Appellant unsuccessfully sought representation from the CRE. When this was turned down, after an unsuccessful appeal to the High Court, the Appellant renewed his application for assistance in March 1993.There followed some very important, in the context of this appeal, correspondence between the Appellant and Mr Rogers, which is accurately and fully dealt with in paragraphs 9 and 10 of the Extended Reasons. What it comes to is that, as part of a very substantial bundle of documents which the Appellant delivered to Mr Rogers, there were included a number of letters by the Appellant which, on reasonable grounds, in our judgment, in the light of the findings of the Industrial Tribunal, Mr Rogers did not believe to be genuine contemporaneous documents for the simple and compelling reason that they were addressed to persons, namely Mr Hall and Ms Hathaway in their capacity as union officials at a time when such persons did not hold such posts.As a result Mr Rogers wrote a very clear letter to the Appellant dated 20 March 1993 setting out in detail the five documents therein listed, which did not appear to him to be genuine and made clear that, in the absence of a satisfactory explanation his union would not represent the Appellant. It appears that no explanation satisfactory to Mr Rogers was provided by the Appellant at the meeting on 23 March 1993, with the result that by his important letter of 24 March 1993 Mr Rogers gave formal notice to the Appellant of his decision on behalf of the Respondent union to refuse representation to the Appellant.By his letter of 11 May 1993 Mr Rogers robustly re-stated the reason for his decision, saying "I will not represent someone who misrepresents their past dealings with colleagues to me". Thereafter the Appellant wrote asking for assistance with regard to copies of the relevant agreement between UNISON and Lambeth, but this was refused in Mr Rogers' letter of 24 June 1993, in the following terms:
"I refer to your letter of 7 June 1993. Miss June Gould in Lambeth's Corporate Personnel Division may be able to supply a list of all Council procedures. I suggest that you write to her directly. I am afraid that I am not in a position to reverse the decision of which I have previously notified you."
The Industrial Tribunal held that the Appellant was out of time in his complaints against the Union. They very carefully rehearsed the submissions made on both sides. They noted importantly the Respondent's submission, apparently unchallenged by the Appellant, that the Appellant was not alleging before them that the decision taken not to represent him was part of a policy or scheme. They expressed their conclusions succinctly in paragraphs 20 and 21, which we have already read. They concluded, as we have already read, clearly applying Section 68(1) of the Act, that the last act complained of was the letter of 24 March 1993. They went on in paragraph 21 expressly to accept the Respondent's submission that the letter of 24 June 1993 simply amounted to a confirmation of the earlier decision and was not a different or separate act within Section 68 of the Act. They found, accordingly, that the Originating Application dated 24 September 1993 was out of time. Carefully, in our judgment, and for the sake of completeness, they specifically held that the act of refusal on 23 March 1993 was a single act not forming any part of a policy or regime that could be considered as a continuing act of discrimination.Having heard the submissions made to us today by the Appellant very courteously in person and, we must say, a very able submission by Counsel for the Respondents, we are unanimously of the view that the decision of the Industrial Tribunal cannot be faulted either with regard to the findings of fact which they made or as to the application of the relevant legal principles which they applied.We agree with Counsel for the Respondent's submission to us that the sole question for our decision was whether the Industrial Tribunal was wrong in law in holding, as she summarised it in her skeleton argument, that:
"(a) the last act complained of for the purposes of the complaint was 23 March 1993 when the Applicant was told orally and in writing that the Respondent would not assist him with his forthcoming hearing and/or that (b) the letter of 24 June 1993 simply confirmed that decision and was not a different or separate act within the meaning of Section 68(1) of the Act."
In our judgment the Industrial Tribunal were amply justified in concluding that the letter of 24 March 1993 amounted to a single act and was not a continuing act. In our judgment it is clear from the authorities cited in the Respondent's skeleton argument before us, particularly Kapur v Barclays Bank [1989] IRLR 387, Osuwu v London Fire & Civil Defence Authority [1995] IRLR 574 and recently, the important decision of the Court of Appeal in Rovenska v General Medical Council [1997] IRLR 367 , that an act can only be said to extend over a period of time if it takes the form of an application of a rule, scheme, practice, regime or policy in accordance with which decisions are taken from time to time.In fact, as Counsel for the Respondents pointed out, it had not been argued before the Industrial Tribunal that the act of 23/24 March 1993 or that of 24 June 1993 was taken pursuant to an alleged policy or scheme. Strictly, therefore, it may not be open to the Appellant to seek to impugn the Industrial Tribunal decision on such a ground. Despite that, we consider that it is appropriate that we should consider that aspect of the matter, particularly having regard to the fact that the Appellant had been given leave to pursue this very argument at the preliminary hearing, and also to the fact that the Industrial Tribunal expressly found that the acts did not form part of a policy or scheme or regime.In this connection the Appellant has understandably relied heavily on the decision of the Court of Appeal in the important case of Rovenska v GMC and we have had to look with care at that authority which is, of course, binding upon us. Shortly, that case involved a complaint of racial discrimination, namely an alleged act of indirect discrimination arising from a regime selected by the General Medical Council as a means of implementing an exemption policy relating to limited registration of doctors who were East European nationals.The Court of Appeal held that, whilst the regime remained in force, an act of unlawful discrimination would be committed on every occasion when the GMC refused to allow Dr Rovenska a limited registration without first taking the test required by the regime.We have paid particular regard to paragraph 17 of the judgment and the illuminating citation from Mummery J's judgment in the Employment Appeal Tribunal (as he then was) and also to paragraph 32 of Brooke LJ's judgment.In our judgment there is no arguable error in the Industrial Tribunal's finding that the decision taken by Mr Rogers on 23/24 March 1993 not to represent the Applicant, was a "one-off" decision which was not, in any way, a decision taken on the basis of any policy, scheme or regime which the union had with regard to representation. Counsel for the Respondent drew a helpful contrast between a situation where, in conformity with its rules or policy, a union decided not to represent, simply by way of example, Czechoslovakians. In such a case every time an individual Czech was refused representation a further discriminatory act would be committed by the union. That would be analogous to the Rovenska case, although perhaps directly discriminatory. Counsel contrasted that with the situation here which, in our judgment, she correctly analysed as follows:
"Although of course, members of the union [in this case UNISON] are entitled to representation such is not an absolute and inflexible right. There is still an individual discretion in the individual officer dealing with an application for representation, to decide for reasons special to a particular case and in exercise of a discretion, that for particular reasons representation should be refused."
In our judgment that is exactly what happened here on the findings of fact by the Industrial Tribunal. No doubt the Appellant suspects the motive behind the decision and would seek to attribute an improper motive to Mr Rogers, but such an approach is totally foreclosed by the findings of fact properly made by the Industrial Tribunal. Thus, we are of the opinion that the Rovenska case can properly and safely be distinguished from the present situation.The Appellant's contention that the decision of 23/24 March 1993 and/or the decision of 24 June 1993 were made pursuant to any scheme, regime or policy is, in our judgment plainly wrong for the reasons we have stated, and must be rejected.Finally, we are indebted to Counsel for drawing to our attention the recent decision of Cast v Croydon College [1997] IRLR 14, where this Employment Appeal Tribunal held that the mere repetition of a request cannot convert a single management decision into a continuing act of discrimination or a policy practice or rule. By parity of reasoning in our judgment, a single one-off decision by a union official, on behalf of the union, not to afford representation, cannot be converted into either a continuing act or a policy or practice by a mere confirmation of the original decision prompted by the repetition of a request.The wording of the letter of 24 June 1993 is plainly couched as a confirmation of the original decision and does not, in any way, amount to a fresh consideration by Mr Rogers of the original decision.Accordingly, the Industrial Tribunal were amply justified in so concluding, exactly in line with the EAT decision in Cast v Croydon College . In our judgment the decision of the Industrial Tribunal was a particularly careful and well-reasoned decision which cannot be criticised either with regard to the findings of fact or the application of the relevant law. It was a difficult and sensitive application and it received careful and thorough consideration in a decision which, in our judgment, is wholly unimpeachable.Accordingly, this appeal is dismissed.