Nguyen v London Borough Of Bexley & Ors [1998] UKEAT 363_97_0307

EAT
Nguyen v London Borough Of Bexley & Ors
[1998] UKEAT 363_97_0307 · 1998-07-03

JUDGE PETER CLARK :

The Appellant, Miss Nguyen, who is of Vietnamese racial origin, commenced employment with the London Borough of Bexley (Bexley) as an unqualified teacher in the English Language Support Service (ELSS) on 1 September 1992. On 18 July 1996 she tendered her resignation which took effect on 31 August 1996. Her last working day was the end of that Summer term, 19 July.On 18 September 1996, her father, Mr S Nguyen, who has represented her until today, wrote to Ms Boyce, the ELSS team leader, enclosing a Questionnaire submitted under section 65 of the Race Relations Act 1976 . In that letter Mr Nguyen alleged that the Appellant had persistently been a victim of discrimination and harassment in the team. The letter concluded by saying that the Appellant was preparing a formal claim for racial discrimination under the provisions of the Act. Mr Nguyen then referred to the enclosed Questionnaire requiring a response within 14 days and reminding Ms Boyce of the provisions of section 65 (2) of the Act.That was followed by a further letter from Mr Nguyen dated 23 September, addressed to Ms Robson, an ELSS teacher, enclosing a further Questionnaire which she was required to answer within 10 days.On 30 September Mrs Atherton, a Principal Personnel Officer with Bexley wrote to Mr Nguyen acknowledging receipt of the earlier letters to Ms Boyce and Ms Robson, and informing him that an internal investigation of the complaints was being undertaken.On 9 October Mr Nguyen wrote to Mr McGee, Bexley's Director of Education and Leisure Services, threatening legal action against Ms Boyce and Ms Robson and stating that any delay in meeting the deadlines imposed for answering the Questionnaires would not be excused.On 11 October Mr Wheadon, Bexley's Community Services Secretary, replied to that letter assuring Mr Nguyen, as had Mrs Atherton, that the complaint was being taken very seriously and expecting that the results of the internal investigation would be available in the relatively near future.That was followed by a letter dated 17 October from Mr Fee, the Senior Education Officer (Education Client Unit), explaining that it would not be possible to meet Mr Nguyen's deadline. Bexley would try to avoid any greater delay than was absolutely necessary.On 11 November Mr Nguyen wrote Mr McGee, informing him that unless satisfactory replies to the Questionnaires were received within seven days, legal action would follow. He added:
"The dilatory tactic in replying to the questionnaires by officers of the Department of Education in the hope that the time-limit for complaint will run out shortly would be considered as unrealistic under the provisions of s.68 (6) and s.68 (7) of the Race Relations Act 1976: (a) 'However a court has discretion to consider a complaint out of time if, in all the circumstances of the case, it considers it just and equitable to do so' (s.68 (6)). (b) 'An act extending over a period is treated as having been done at the end of that period' (s.68 (7))."
Finally, on 21 November 1996 the Appellant presented her Originating Application to the Industrial Tribunal naming Ms Boyce and Miss Robson as Respondents and giving as their address for service C/O Directorate of Education, Bexley Council. She gave the date of her complaint as 18 September 1996 and her dates of employment as 1.9.1992 to 31.8.1996.A Notice of Appearance was entered by Bexley on 10 December 1996, with a covering letter, taking the point that the complaint was out of time.On 23 December 1996 Mr Nguyen wrote to the Ashford Industrial Tribunal a letter in which he set out a chronology including the entry:

"19.07.96 The last act of discrimination by Ms Boyce and Miss Robson."

He referred to section 68 (1) and (6) of the Act.The limitation issue came before a Chairman, Mrs Valerie Cooney, sitting alone at Ashford on 17 January 1997. The Appellant submitted written representations and did not appear. The Respondents appeared through a Solicitor, Mr Miles. Bexley was joined as a Respondent to the proceedings by the Chairman. The application was dismissed on grounds that it was time-barred by a Decision with Extended Reasons dated 27 January 1997.In her Reasons the Chairman pointed to the letter of 23 December 1996, in which the last act of discrimination complained of was dated 19 July. Accordingly the application was presented outside the three month time limit (section 68 (1)). She was not prepared to extend time under the just and equitable provisions of section 68 (6) on the grounds that the Appellant was not prevented, by the Respondent's delay in answering the Questionnaires, from presenting her complaint within time. On these grounds the claim was dismissed.In this appeal against that decision Ms Nguyen takes principally three points. The first is that the Industrial Tribunal ought not to have joined the London Borough of Bexley as a Respondent and further, that since the only Notice of Appearance was entered by Bexley which was not then a party to the proceedings, the two named Respondents had failed to enter an Appearance and accordingly they should have been debarred from defending.We have considered that point and our conclusion is that under the Industrial Tribunals Rules of Procedure, Rule 17, it is open to the Tribunal to add a party to the proceedings on that party's application. In this case Bexley assumed responsibility for the acts of its employees, Ms Boyce and Miss Robson.It seems to us that the Chairman was entitled to treat the Notice of Appearance entered by Bexley as a Notice of Appearance entered on behalf of the original two named employee Respondents.The second point is that the Appellant contends that there was here a continuing act of discrimination which continued until the termination of her employment on 31 August, so that her Originating Application was presented within the ordinary three month time limit.We have asked Ms Nguyen to identify where, in the papers which were put before the Industrial Tribunal Chairman, it is alleged that there was a continuing act of discrimination which continued until 31 August so as to bring the claim within the ordinary three month time limit. She has not been able to satisfy us as to this point. On the contrary, the letter from Mr Nguyen dated 23 December does not rely upon a continuing act until the termination of employment, but says in terms that the last act of discrimination by the two original named Respondents took place on 19 July. In these circumstances we are satisfied that it was open to the Industrial Tribunal Chairman to find that the Originating Application was presented outside the ordinary three month time limit.The third point taken is that Bexley deceived the Appellant in its conduct after termination of her employment. She submits that their continued correspondence and telephone calls indicating that they would shortly have completed their investigation into her allegations, deceived her into holding back on presenting a claim to the Industrial Tribunal and that in these circumstances the matter should have been allowed to proceed as a matter of discretion.We have carefully considered the way in which Bexley's letters to which we have referred earlier in this judgment were framed. On no occasion, it seems to us, was Bexley inviting the Appellant not to present her claim. There was nothing to prevent her doing so and it is clear from the correspondence from her father that he had carefully considered the provisions of the Race Relations Act.In these circumstances, bearing in mind the wide discretion granted to Industrial Tribunals under section 68 (6) of the Act, we have concluded that this appeal discloses no arguable error of law to go to a full appeal hearing and consequently it must be dismissed at this stage.