Xerox (UK) Ltd & Ors v Buchanan [1998] UKEAT 89_98_0110

EAT

Xerox (UK) Ltd & Ors v Buchanan

[1998] UKEAT 89_98_0110 · 1998-10-01

MRS JUSTICE SMITH: This is an appeal from the decision of an Industrial Tribunal sitting at London (North) on 21 October 1997. The unanimous decision of the Tribunal was that it had jurisdiction to hear the Applicant's complaint of racial discrimination. The Applicant was Mr Buchanan, the Respondent to this appeal.

The background to the matter was that Mr Buchanan was employed by Rank Xerox from 1995 until 28 June 1996. Until 12 April 1996, his manager was Mr Blunden, the Third Respondent to the proceedings. He was then moved to work in another team, but he became ill and worked for only a few days in May 1996. On one of those days, he made a complaint to Mrs Harvey, the Second Respondent, about Mr Blunden's racist conduct towards him. Mrs Harvey promised to investigate his complaint. As we have said, he left his employment on 28 June 1996. By the time he left, he had not heard from Mrs Harvey.

On 19 September 1996, he had still not heard from her. He filed an IT1 complaining of racial discrimination. His complaint, as clarified by Further and Better Particulars provided in May 1997, was of, first, the racist conduct of Mr Blunden and, second, the failure of Mrs Harvey to investigate his complaint.

On 21 October 1997, the Tribunal held a preliminary hearing to determine whether or not the Applicant's allegations of racial discrimination against the three Respondents were out of time, under section 68 of the Race Relations Act 1976 . The decision states:-

"The Applicant having explained his allegations to the Tribunal, eventually the representative of the Respondents conceded that all the allegations would inevitably have to be heard together and that as some of the allegations, particularly those against the Third Respondent, [we interpose to say that that must be a mistake, he must have meant the Second Respondent] and through her including the First Respondent, were "in time" the others would inevitably have to be heard with them. Therefore it was conceded that the Tribunal did have jurisdiction under the provisions of section 68 of the Race Relations Act 1976 and that the matters could proceed to a full merits hearing."

At paragraph 3, the Tribunal set out various directions which were given for the purpose of preparation for the full hearing, which included a direction that the Applicant, Mr Buchanan, should provide Further and Better Particulars of his claim, including the time, date and location and full details of each event or circumstance giving rise to each of his allegations.

Mr Adams, the solicitor who had represented the Respondents, applied for a review soon after he received the written decision of the Tribunal. Paragraph (b) of his letter of request said: (b) "the Respondents' representative may have agreed that the Tribunal may, at a full merits hearing, wish to hear evidence by way of background as to 'out of time' allegations but did not concede that the Tribunal therefore had jurisdiction to hear all allegations made by the Applicant, whether in time or out of time, as substantive causes of action;"

That complaint was fully explained in the letter. Nonetheless the Chairman refused to consider a review, saying that it had no reasonable prospect of success. He said that Mr Adams' letter did not correctly record the events at the hearing of 21 October. He continued "Not only was the concession made as referred to in the Tribunal decision but agreed directions were also made as a consequence." This appeal followed.

The Chairman's notes were before us. They are very brief and do not throw any real light upon the nature and extent of the concession allegedly made by Mr Adams at the original hearing. However, fortunately today, Mr Buchanan who appears in person, has most helpfully explained what, in his recollection, was conceded. We are pleased to record that there is no significant difference of view between the parties as to the nature and extent of the concessions made. Mr Buchanan told us that Mr Adams conceded that the allegation that Mrs Harvey had failed to investigate his complaint was in time and that there would therefore have to be a hearing on the merits. Second, Mr Adams had conceded that it was inevitable that his allegations about Mr Blunden would have to be heard by the Tribunal, because his complaint to Mrs Harvey was about Mr Blunden's conduct. Mr Adams agrees that that is what he conceded, but no more.

We are satisfied with the joint recollection of Mr Adams and Mr Buchanan. In so far as the Chairman may have had the impression that Mr Adams was conceding that all Mr Buchanan's complaints were to be treated as being within time and gave rise to substantive causes for complaint, we think he was under a misapprehension.

We have explained to Mr Buchanan that it may be, at the full hearing, that the Industrial Tribunal will decide that his complaints were of a continuing course of conduct and they may therefore hold that all the matters of which he complains are within time and give rise to substantive causes of complaint. Alternatively, the Industrial Tribunal may decide that, even though some of his complaints are prima facie out of time, he will be permitted to rely upon them as substantive causes for complaint on the ground that that is just and equitable. However, we stress, and Mr Buchanan understands this, that those questions, arising under section 68(6) and (7) of the Race Relations Act have not yet been determined. They remain open for argument at the full hearing. All that has been determined is that the complaint in relation to Mrs Harvey's failure to investigate Mr Buchanan's complaint is in time, and that it will be necessary for evidence of other matters, namely his complaints about Mr Blunden and other relevant history to be admitted at the hearing.

We are of the view that in all the circumstances the appropriate course is to direct that the full merits hearing of this case should go before a newly constituted Industrial Tribunal. We express the hope that time will be found for this case to be heard in the very near future. We have not heard any explanation for the delay in listing this matter, but we note that the IT1 was lodged more than 2 years ago and that the preliminary hearing did not take place until a year after the IT1 had been lodged. This appeal has taken a further year. That degree of delay is most regrettable and unsatisfactory and we hope that this case will be accommodated very soon.