Stone v Argos Distributors Ltd & Anor [1998] UKEAT 967_97_0402

EAT

Stone v Argos Distributors Ltd & Anor

[1998] UKEAT 967_97_0402 · 1998-02-04

MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which the appellant, Mr Stone, wishes to make against a decision of an Industrial Tribunal Chairman who refused to grant a review. That decision is contained in a written order dated 6th August 1997 which was sent to the parties on 7th August 1997.

The application which Mr Stone had made to the Chairman was to review a decision which had been arrived at on an earlier occasion. That decision was contained in extended reasons sent to the parties on 1st July 1997. It is right to point out that the Notice of Appeal in this case, which was in the form of a letter from the appellant to us, was received by us on 19th August 1997 and therefore the 42 day time limit for appealing against the substantive decision of the tribunal had expired, and we are therefore technically concerned only with an appeal which relates to the decision whether or not to grant a review. However, we are prepared to deal with this on a wider basis as Mr Davies of Counsel under the ELAAS scheme has urged us to do. We are grateful to him for his submissions. We are therefore prepared to look again at the substantive decision of the Industrial Tribunal.

The appellant was dismissed on 19th June 1996 by his former employers. Therefore, in terms of his application for unfair dismissal he had three months in which to present his complaint. He did not present his complaint to an Industrial Tribunal until 22nd January 1997. Accordingly, he was substantially out of time in relation to his application for unfair dismissal.

The tribunal considered that question, directed their attention to the statutory criteria, and asked themselves whether it was reasonably practicable for the application to have been made before the end of the period of three months. Their conclusion was that it was reasonably practicable for a person exercising reasonable diligence and finding out about his rights to have presented his application within that period.

The IT1 in this case also contained within it other heads of complaint, and it is perhaps at this stage convenient to refer to it. The Box 1 had been completed in this way "S.1 ERA" that is a reference to the absence of the required statutory particulars of the terms and conditions of employment which every employee is entitled to receive after he has been employed for two months; then there was a reference to "Race Discrimination Act" and then there was a reference to "Sex Discrimination Act". He had been employed for less than the requisite period of continuous employment and therefore he had to establish that the reason for his dismissal related either to his request for statutory particulars or, alternatively, was tainted by race or sex discrimination.

He accompanied the IT1 form with detailed particulars of his Originating Application and it formed two parts. The first part of it was headed "Employment Rights Act 1996" which dealt with his complaint that he had not been provided with proper statutory particulars and that he had been unfairly dismissed. The second sheet relates to sex and race discrimination.

In relation to his complaint in relation to the Employment Rights Act , that is s. 1 and the right not to be unfairly dismissed, he indicated that on 19th June 1996 his manager had called him into his office, told him that his probationary period had been extended, said that "No one likes you here", verbally abused him and told him that he had been warned on many previous occasions, and concluded by advising him that he was dismissed.

In relation to the sheet headed "Sex & Race Discrimination" he makes reference to an incident which took place in April 1996 which could be described as the "playing cards" incident, and the distress which he felt by the comments which were made by fellow members of staff, which appear to have been adopted by his manager, Mr Evan. He felt that he had been the victim of inappropriate, abusive, stereotypical remarks and therefore had been the victim of both race and sex discrimination perpetrated by the manager and by the two identified female employees of his employers for whom they had vicarious liability.

The Industrial Tribunal Chairman in giving the substantive judgment of the tribunal said the claims of race and sex discrimination arose out of an incident which is said to have occurred according to the appellant's evidence in the latter part of April 1996. It is but one single incident and consequently any application which was to be presented claiming either sex or race discrimination or both, should have been presented to the tribunals towards the end of July 1996.

In his submissions to us today, Mr Davies has submitted that the Industrial Tribunal Chairman effectively misunderstood the nature of the complaints which were being presented to him. He should have detected the possibility that the complaint of race and sex discrimination was not just a one-off act, but showed a continuing hostility based on race or sex of Mr Evan towards the appellant during the remained of his period of employment. Accordingly, if it was a continuing act, then time did not start to run for the purposes of presenting a complaint to an Industrial Tribunal until the date of dismissal, namely 19th June 1996, the effective date of termination.

He says, therefore, that the decision by the Industrial Tribunal to refuse to review their earlier decision is tainted by the same error which had been made in the substantive decision.

Secondly, he says, in any event, the Industrial Tribunal Chairman should have recognised that this was a case where the appellant had been doing a considerable amount to find out about his rights. He was not just simply standing idly by after his dismissal. He had approached his union as the correspondence shows, and had been to the Citizens Advice Bureau, and that he was reasonably unaware of his rights until after he had encountered a relation of his who had legal qualifications, and that he acted reasonably and promptly thereafter.

In relation to the first point. Whilst we see the possibility that this could have been construed as a complaint of a continuing act of race or sex discrimination, as the Originating Application was drafted and presented to them, we think it unfair to criticise the learned Chairman on the basis that he said what he did in paragraph 2 of his decision. If the appellant himself, who is articulate, had in his own mind linked the incident in April to the decision to dismiss him, we have no doubt that that linkage would have been made clear in the Originating Application. It seems to us that it was not made clear in his Originating Application. But it seems to us in any event, that the decision of the Industrial Tribunal could not be faulted even if arguably it was a complaint which in relation to race and sex which had continuing effect, because the time limit period for bringing such complaints starts at the latest from the 19th June 1996, and therefore, these complaints were also presented well out of time.

The tribunal considered the exercise of their discretion as to whether in all the circumstances it would be just and equitable for them to extend time, and they indicated that they found:

"4 ... it difficult to accept that the Applicant did not know the existence of Industrial Tribunals and we consider that the whole matter consisting as it did of one single act and the time which passed before the presentation of the application is such that it is not just and equitable that the time should be extended."

It seems to us that that was a decision which they were entitled to arrive at, despite the fact that Mr Stone had indeed been taking steps to enquire about his position.

He sought first of all to operate the internal grievance or appeal procedure, and it took some time before he discovered that he was not going to be entitled to such procedure, but he discovered that within the three month limitation period.

He also, at it appears, was trying to seek assistance from his trade union which did not appear to be forthcoming, and unquestionably on the basis of what we have been told, the union should be criticised for the way in which they responded to his various requests.

But it does seem to us that those were matters for the fact-finding tribunal to take into account. The discretion which is given to them to extend time in sex and race cases is a general one and it is for them to exercise their discretion. We should only interfere with that exercise of the discretion if we are satisfied that there has been an error of law, which effectively means, that they have in some way misdirected themselves directly, or indirectly in the sense of perversely.

We are unable to detect any arguable point of law, despite Mr Davies's submissions to us, in relation to either of the two submissions he made to us. It seems to us that this articulate appellant could and should have presented his complaints much nearer the time, and if he has any complaint to make about his trade union, then that is a matter which he can take up with them. We are not prepared to say that this appeal raises any arguable point of law, and it must be dismissed.