Olusanya v National Union Of Teachers [1998] UKEAT 977_98_0112

EAT

Olusanya v National Union Of Teachers

[1998] UKEAT 977_98_0112 · 1998-12-01

MR JUSTICE LINDSAY : We have before us as a preliminary hearing an appeal by Ms L Olusanya in the matter Olusanya v The National Union of Teachers . The decision, which was on 19 June 1998, promulgated on 10 July 1998, was the decision of a full Tribunal of three members under the Chairmanship of Mr J Caborn in London North. The decision of the Tribunal was as follows:

"The unanimous decision of the Tribunal is that the Applicant's application addressed to the Respondents, National Union of Teachers, fails and is dismissed."

Before we go to the facts of the matter we need to set out briefly the sections which are involved in this matter.

First one looks at section 68(1) of the Race Relations Act 1976:

"An industrial tribunal shall not consider a complaint under section 54 [and the nature of Ms Olusanya's complaints are of that nature] unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done."

So that is the basic period. But there is a discretion to extend, found at section 68(6):

"A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

Because it may be that Ms Olusanya's complaints concerned sexual discrimination as well, it may be as well to look at section 76 of the Sex Discrimination Act 1975, which is very similar in its provisions. Section 76(1) provides:-

"An industrial tribunal shall not consider a complaint under section 63 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done."

And again there is a discretion to extend, section 76(5):

"A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

That is the statutory background.

The position is that on 6 February 1998 the Industrial Tribunal received Ms Olusanya's IT1 form of Initiating Process; it was received at London North, and it claimed 'racial harassment and victimisation and homophobic prejudice'. The fourth Respondent to that claim was the National Union of Teachers, (the "NUT"), and it is only with the NUT and the case against them that we are concerned today. We understand that other Respondents have ceased to be proceeded against but precisely what the nature of the case against them is we do not need to know; we are only concerned with Ms Olusanya's case against the NUT.

Ms Olusanya was, according to her complaint, employed from September 1977 until 20 January 1998. It is not said that she was employed by the NUT but by one or other of the other Respondents to the case. In the IT1, so far as concerns the NUT, there were complaints of various kinds and various dates were given. Thus there was a complaint that said 'since 1977'; then 15 and 29 September 1995 were mentioned; there was reference to 2 December 1995 and 15 evenings thereafter; the year 1995 was mentioned and 4 May 1995 was mentioned - but there was nothing on the face of things complained of as an act done in the period after 7 November 1997.

The NUT responded with an IT3 and they took the jurisdiction point. What they said was:

"The Applicant fails to state in her Application when the matter about which she is complaining against the Fourth Respondent took place. In fact all relevant contact was between July 1995 and January 1996 and the Applicant's complaint against the Fourth Respondent is in any event long time barred."

That having been raised as a point, a preliminary hearing was arranged for on this jurisdictional point and wisely, as we have mentioned earlier, it came before all three members, because it was likely to be something of a factual dispute. The unanimous decision, as we have already read, was that it was regarded that Mss Olusanya's complaint was out of time and therefore, failed.

In its decision the Industrial Tribunal carefully traces the relationship between Ms Olusanya and the NUT. It draws attention to a long letter to her from the NUT on 18 January 1996. It is a letter which, on the face of things, dealt with complaints previously raised by Ms Olusanya against the NUT and we have the whole of that letter. It concludes in a phrase cited by the Industrial Tribunal:

"I hope that this letter answers all of your points. I certainly feel that these issues have now been exhausted and that you will agree that the matter is now closed."

The Industrial Tribunal, of course, paid attention to the matter in front of them and at one point ((viii), p 20 of our papers) they said:

"Since the beginning of 1996 the Applicant has not been a member of the Respondent Union and since which time she has been represented by other persons including the ATL. The Applicant's application is dated 1 February 1998 and was received by the Tribunal on 6 February 1998."

Ms Olusanya tells us that she remained a member of the NUT after 18 January 1996 and that to that extent the Industrial Tribunal was wrong. But, of course, her being a member is not in itself an act that can be complained of, or is complained of.

The Industrial Tribunal turned to the subject of what were the dates that could be put on the matters of which she was complaining in her IT1? The last possible date they found as the starting point for time running against her, namely, from when the acts complained of were done, was 18 January 1996: the date of that long letter. They considered her complaint. What they said in paragraph 11 was this:

"The Applicant however contends that 20 January 1998 being the date of her dismissal from employment is the relevant date for the purpose of calculating the relevant three month period under section 68 of the 1976 Act. It is the Applicant's contention that there is a link between the disciplinary action commenced in May 1995 through to January 1998 and that in consequence time did not begin to run until the date of her dismissal."

The Industrial Tribunal heard that argument but they concluded that the 'act' complained of was done, so far as concerns the NUT, at the very latest at 18 January 1996, whatever the position might be as between Ms Olusanya and other Respondents. But the fact, if such it was, that a disadvantageous consequence of the acts complained of as against the NUT did not occur or was not felt or noticed by Ms Olusanya until the later does not assist her. Time runs from when the act complained of, as against a particular Respondent concerned, was done. Answering that question the Industrial Tribunal said, in paragraph 14:

"The Tribunal has concluded that the Respondents, after they ceased to be the Applicant's representative could not be held responsible for subsequent actions taken by the Applicant's employers. In consequence the contention that 20 January 1998 is the relevant date for calculating the period of time in which to submit an application to this Tribunal is rejected."

We see no error of law in that conclusion, which seems to be a conclusion which entirely accords with the ordinary meaning of the provisions of the Act which we have read. But there is, as we have noted, a discretion to extend time and the Tribunal turned to consider that in their paragraph 13:

"Further the Tribunal has considered whether having regard to the provisions of section 68(6) of the 1976 Act it is just and equitable to extend the time to validate the application. The unanimous decision of the Tribunal is that having regard to the fact that the matter referred to by the Applicant occurred in the period May 1995 to January 1996 and on matters of which she was aware of and could have pursued at the time. The unanimous decision of the Tribunal is that it is neither just nor equitable to extend time to validate the application."

In this area, namely the discretion under section 68(6) and the corresponding discretion under section 76(5), there is binding authority that discourages appeals. The legislature, Parliament, has carefully put into the hands of the Industrial Tribunal, as the fact-finding body, a discretion on this subject and appeals on it are discouraged because it is largely a matter of fact that the Tribunal is to rule upon. We have found no error of law in the Tribunal's conclusion on the point.

Ms Olusanya complains, up to a point, that there has been a failure to obtain documents from the NUT and that no order in her favour for the production of documents has been made. But that rather puts the cart before the horse. There can only be an order for documents if there is a basic claim which is within the Tribunal's jurisdiction. If there is no jurisdiction then an order cannot be made. It could be that Ms Olusanya could have obtained material - perhaps could still obtain material - by way of a race questionnaire, but that is not a matter that is at the moment before us.

The Industrial Tribunal ruling on the discretion to extend time or not has to deal with the case as it is put in front of it. If there was material which Ms Olusanya could have put in front of the Tribunal but did not then the Tribunal cannot be blamed for not considering it; they have to look at what is put in front of them. If there was material that could have suggested that Ms Olusanya was sick or under some particular conditions, perhaps stress, during the relevant three months, then that should have been presented and it was not - there is no clue that it was - then that is no ground for complaint against the Industrial Tribunal.

In her Notice of Appeal Ms Olusanya asks whether it is right that discriminatory events should be forgotten merely because they are three months or more old? Well, that is not a question for the Industrial Tribunal or for this Employment Appeals Tribunal. Parliament has put a limit on the interval, as a maximum, that can elapse between the act complained of and the initiation of legal proceedings in respect of that act. It is nothing to do with forgetting the acts or somehow in any way morally excusing them. It goes simply to the question of whether the complainant is to have legal remedy. Here, because of the lapse of time, the Industrial Tribunal has ruled that Ms Olusanya has no legal remedy against the NUT and we have been able to find no error of law in the reasoning. It is only errors of law that concern this Employment Appeal Tribunal and accordingly we must dismiss Ms Olusanya's application.