MRS M A GONNELLA v THE BENEFITS AGENCY [1999] UKEAT 1156_98_0705

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1156_98_0705Case No Appeal No. EAT/1156/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS M A GONNELLAAPPELLANTTHE BENEFITS AGENCYRESPONDENT
Before
Mr Justice MorisonDate 7 May 1999
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION ON BEHALF OF THE APPELLANT MR JUSTICE MORISON (PRESIDENT): Mrs Gonnella appeals from the unanimous decision of an Employment Tribunal which ruled that it had no jurisdiction to consider her complaint. The Applicant was complaining against her Employers, the Benefit Agency, that she had been discriminated against at work on the grounds of her race. As we understand it, she was saying that she was being discriminated against because she had an Italian name. She is a married person and presumably, has taken her husband's name. The Tribunal were there to deal with two preliminary issues. The decision is corrupt in several respects and it is not easy to fully understand what is being said. But as we understand it, the first issue was whether her application fell within the Race Relations Act and the Sex Discrimination Act, have regard to the fact that she herself, was white of Caucasian ethnic origin but was complaining of treatment afforded to her because her name was Italian. Secondly, the matters about which she was complaining had occurred more than 3 months before the complaint to the Employment Tribunal and therefore, there was an issue as to whether the Employment Tribunal should exercise their discretion to extend time. The incidents, or rather the last act complained of was on 7th November 1997. She presented her complaint on 27th February 1998. Time expired on 6th February 1998, therefore her complaint was 3 months out of time. Paragraph 12 of the Employment Tribunal decision reads as follows:
"12. It appears to the Tribunal that had the Applicant taken the advice of the Care First counsellor and sought legal advice promptly, she would have had a reasonable opportunity to present her complaint within the statutory time-limits. We have considered her explanation, firstly, that she did not understand why she needed to take advice, and, secondly, that her time was for the most part taken up with dealing with her illness. We consider that the time limits exist to ensure that complaints are brought promptly to the Tribunal and they are dealt with very strictly for that reason. We consider that it is not appropriate to exercise our just and equitable jurisdiction because the Applicant simply did not see the importance of obtaining legal advice at an earlier stage. We do not accept that she was prevented from seeking legal advice because of her ill-health. We bear in mind that she was back at work part-time, from 19th January and had every opportunity to make a telephone call had she considered it a priority. Therefore, having considered all of the circumstances of the case the Tribunal concludes that it is not just and equitable to consider the Applicant's complaint and we dismiss this originating application."
[2]It seems to us to be arguable that in relation to the way the Tribunal have approached the exercise of discretion, they have sought to apply the principles which are more familiar with unfair dismissal "reasonable practicability" for presenting complaints. The statement that "time limits under the Discrimination Legislation are dealt with very strictly" may be a statement which is a symptom of the approach of the Tribunal and their findings, that "she was not prevented from seeking legal advice because of her ill health and had an opportunity to take advice" would also be factors which would be highly relevant on the question of whether it was practicable for her to have made a complaint. She is entitled to argue, as it seems to us, that the Employment Tribunal have not balanced the relative injustices to the parties of granting or refusing leave. That therefore, we regard as an arguable point of law but wish to give no indication as to the way we would have decided that issue. It seems to us it should be considered at a further hearing.[3]It seems to us also, that as the Employment Tribunal did not themselves consider the other question, the Employment Appeal Tribunal should itself do so, whatever the outcome of the appeal on the first issue. It is a potentially important question and as far as we are aware without any research, it is an issue which has not been considered before. It raises the question as to whether it could be said to be discrimination against her by reason of her married status, or alternatively, it may be said that the Race Relations Act is apt to cover a case in which there are acts of unfavourable treatment based on a belief about somebody's nationality or colour which belief is ill-founded.[4]Therefore, we allow this matter to proceed and we should indicate that the Applicant was not here. There are Legal Aid difficulties. It is a case which needs to be argued and we have no doubt that in the light of our decision to allow the matter to proceed to a full hearing, the Legal Aid Board will review their previous refusal of Legal Aid for what could be a difficult argument. The directions we give in this case, taking into account what is said in the PHD forms with which we have been provided, the matter should be listed as a Category B case. Estimated length of hearing ½ day. No notes of evidence being required.