MRS S DEAN v LONDON BOROUGH OF ISLINGTON [1999] UKEAT 594_97_0112

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 594_97_0112Case No Appeal No. EAT/594/97Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS S DEANAPPELLANTLONDON BOROUGH OF ISLINGTONRESPONDENT
Before
Mr Justice Charles Mr R SandersonDate 1 December 1999
[1]APPEARANCES For the Appellant MR J BOWERS QC and MR DALE MARTIN For the Bar Pro Bono Unit For the Respondents MR P EDWARDS (of Counsel) The Solicitor London Borough of Islington Town Hall Upper Street London N1 2UD MR JUSTICE CHARLES : The parties to this appeal are a Mrs Dean who is the Appellant (and was the Applicant before the Employment Tribunal) and the London Borough of Islington, the Respondent. The appeal is against a decision of an Employment Tribunal sitting at London (North), the Extended Reasons for which were sent to the parties on 19 March 1997. The decision of the Employment Tribunal was that "the Respondent did not unlawfully discriminate against the Applicant on racial grounds". Within that overall decision was a conclusion that the only acts complained of within the statutory three-month time limit was the appeal hearing held on 13 July 1995 before a panel of councillors. This conclusion in turn was based on a conclusion of the Employment Tribunal that it was not just and equitable to extend time so as to enable the Applicant to make further complaints.[2]The Employment Tribunal made the following findings of fact. "We heard evidence from the Applicant and on her behalf from Mr N Roy and Mrs J Graham, former social workers. We also read a statement prepared by Mr R.J. Harrison, a child protection and child care co-ordinator for another Authority. For the Respondent we heard evidence from Councillor C. Jeapes, Chairman of the Respondent's Policy and Resources (Personnel) Sub-committee, who was Chairman of the panel which heard the Applicant's appeal. We made the following findings of fact:(a) The Applicant was employed by the Respondent from 1 May 1985 latterly in two separate part-time posts where she was a senior social worker in one post and a social worker in another. Following events in the Summer of 1985 she was suspended from work. For the intervening period she was on sick leave.(b) On 17 March 1995, she appeared before a disciplinary hearing which considered a number of disciplinary charges. Although this was long after the events complained of, the Applicant had in the meantime suffered from a number of serious medical conditions and had returned to Pakistan following a bereavement.(c) Following the hearing one of the charges was dismissed and the Applicant was awarded a final written warning that further proven misconduct, which would normally result in dismissal, should remain on her record for five years and demotion to the post of full-time social worker (Community Care).(d) Against the advice of her union the Applicant appealed against the decision. Her appeal was heard by a panel of councillors of whom Councillor Jeapes was the Chairman. The outcome of the hearing was that a further charge be dismissed but the remaining three and the penalty were upheld.(e) At the hearing the Applicant was represented by her solicitor who had every opportunity to put her case. The hearing lasted for several hours. At no time did the solicitor request that the hearing be adjourned. The panel was helpful and in particular in hearing new evidence which would not normally have been heard if it had adhered to the procedure. At the time the Applicant made no complaint that the decision had been tainted by racial considerations.(f) From the findings of fact we draw no inference that the Respondent at the appeal hearing unlawfully discriminated against the Applicant on racial grounds." The reference in paragraph (a) to the summer of 1985 is a typing error. No point was taken as to this before us and we think that the reference should be to the summer of 1993.[3]The conclusions of the Employment Tribunal are in the following terms:
"3 We now come to our conclusions in the matter. Section 68 of the Race Relations Act 1976 provides at (1) that an industrial tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done. It further provides at (6) that 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. In 7 (b) it is provided that any act extending over a period shall be treated as done at the end of that period. In relation to this appeal we find that it is not part of a continuing act. It is a one-off occasion where the Applicant has appealed to a panel of elected councillors who are not employed by the Council and who have had no previous dealings with the Applicant or her case. Although there is a discretion to extend the period further back, this is something that we are not prepared to do because the Applicant was represented, first by her union and then by her solicitor. The onus is on the Applicant to prove her case on the balance of probabilities. If she does not do so, she will fail. The Applicant can show a difference in race and a perceived detriment in that the panel of councillors did not overturn the decision of March 1995. In the circumstances we are entitled to look to the Respondent for an explanation of what has happened at the appeal and that explanation has been given by Councillor Jeapes. The test is an objective one and one for the Tribunal. 4 In her Originating Application the Applicant makes no complaints about the way the appeal was conducted. In her written statement she has indicated that she wanted to appeal against the penalty. She has further indicated that the appeal was unfair and discriminatory contrary to the 1976 Act because the Respondent did not apply its equal opportunities policy in dealing with her. At that point she added that she was dyslexic. Under cross-examination by the Respondent's Counsel when asked what was racially discriminatory about the appeal, she replied 'everything'. When further pressed, she added that she was condemned for life to not working with children. Although she was pressed on a number of occasions for the names of comparators against whom she had been less favourably treated, she failed to come up with any names. There was no reference in her Originating Application to any comparators. On her behalf it was put that the panel were all white and unfamiliar with the concept of equal opportunities. It was suggested that they did not take sufficiently into account that the Applicant was Asian, dyslexic and unwell and was made the scapegoat for the misdeeds of others. We preferred the evidence of the Respondent for the following reasons. While the Applicant in her evidence was wholly unspecific in her complaints, Councillor Jeapes, who was cross-examined by the Applicant's representative for two hours, showed herself to be both professional and astute and remained patient and good-natured throughout. We accepted that she was familiar with the equal opportunities policy and that no comparators were put to her for consideration. She was aware of the Applicant's personal circumstances and even though it was put to her in terms that someone of the Applicant's ethnic background and circumstances should not be disciplined in such a council as the Respondent, she acknowledged that she had a duty to act fairly in accordance with the policy and procedure, which is what she did. We find that the Applicant has not discharged the onus of proof in satisfying us that she was the victim of unlawful race discrimination within the period of three months immediately preceding the presentation of her Originating Application. We did not accept that the outcome of the appeal was part of a continuing act of discrimination. It was an opportunity for the Applicant's appeal to be heard by an external panel and the members of the panel had nothing to do with what went before. We do not accept that she was used as a political scapegoat to satisfy the media that the Respondent was putting its house in order. The Application is dismissed."
[4]When this appeal came before this Tribunal by way of Preliminary Hearing the Applicant had the assistance of Mr John Bowers QC, under the Employment Law Appeal Advice Scheme. Mr Bowers has represented the Appellant before us.[5]At the Preliminary Hearing this Tribunal set out the grounds upon which the Appellant could pursue her appeal. These grounds had been identified on her behalf by Mr Bowers. The grounds of appeal were as follows:(a) the Employment Tribunal erred in concluding that the appeal hearing before a panel of councillors on 13 July 1995 was a one-off or separate act,(b) the Employment Tribunal erred in not allowing the Appellant's representative to cross-examine a Ms Rees, the Appellant's former line manager, and(c) the Employment Tribunal erred in refusing to hear oral evidence from a Mr Harrison.[6]During the course of the hearing when this appeal first came on before us we indicated that in addition to the above grounds we wished to hear submissions on whether we should entertain an appeal against the decision of the Employment Tribunal not to extend time pursuant to section 68 (6) of the Race Relations Act 1976 and if we should, whether that was a good ground of appeal.[7]If the Appellant succeeds in demonstrating that the Employment Tribunal erred in concluding that the final appeal hearing was a one-off act ("the continuing act point") or that the Employment Tribunal erred in not extending time ("the just and equitable point") the other grounds of appeal ("the evidential grounds") do not arise.[8]If the Appellant fails on the continuing act point and the just and equitable point the evidential grounds have to be considered on the basis that the only act complained of upon which a claim can be based is the final appeal heard by a panel of councillors on 13 July 1995 and the other matters of which the Applicant complained are background to that appeal. The Continuing Act Point[9]Section 68 (7) (b) of the Race Relations Act 1976 provides as follows:
"(7) For the purposes of this section – (b) any act extending over a period shall be treated as done at the end of that period."
[10]When this appeal first came on for hearing in support of her arguments on "continuing act" the Appellant, through Mr Bowers, relied (and still relies) on the decision of this Tribunal in Adekeye v Post Office [1993] ICR 464 . We do not accept that this decision supports:(i) the Appellant's contention that the Employment Tribunal should have treated as the complaint before it the whole process of disciplining and sanctioning the Applicant which commenced in the summer of 1993, or(ii) her argument that section 68 (7) (b) should be applied. In our judgment the Adekeye case before this Tribunal is authority (should any such authority be needed) for the proposition that an "act complained of" within the terms of section 68 (1) of the Race Relations Act 1976 can be an internal appeal, when for example as in the Adekeye case a dismissed black employee complains that he or she did not succeed upon an internal appeal in circumstances where a white comparator would have succeeded such that there is an allegation of unlawful discrimination on racial grounds in respect of the result of the appeal (see page 470 C). However, in our judgment the Adekeye case does not provide authority for either of the propositions advanced on behalf of the Appellant and, in particular, the passage at page 470 E to F indicates that section 68 (7) (b) did not apply in that case and does not apply in this case. That passage is in the following terms:
"In our view, her case, by its very nature, apply just as much to the determination of her appeal as it did to her original dismissal. We are not persuaded that there was continuing discrimination between her dismissal and her appeal. But we do consider that her case that she was unlawfully discriminated against in the outcome of her appeal is an 'act complained of' within section 68 (1) of the Act of 1976 and that such a claim is not precluded by that section on time grounds. We accordingly allow this appeal and remit the case to the industrial tribunal for the substance of that complaint to be determined."
[11]Following the first day on which this appeal was heard we wrote to the parties inviting submissions from them on Cast v Croydon College [1998] ICR 550 and Akhtar v Family Services Unit (Court of Appeal 6 November 1997).[12]In our judgment these cases:(a) confirm and demonstrate that there is a real difference between (i) the question, whether an act complained of is a reconsideration rather than a confirmation of, or a mere reference back to, an earlier decision, and (ii) the question whether section 68 (7)(b) of the Race Relations Act 1976 applies (which in our judgment is a distinction which was ignored or not properly taken into account in the submissions made on behalf of the Appellant), and (b) provide authority to the effect that in respect of the question whether section 68 (7) (b) of the Race Relations Act 1976 applies it is the existence of a policy, regime or practice that matters rather than the existence of a specific act triggering the application of the complainant (see the Cast case at pages 508 to 509 C, 513 H to 514 A, 514 D and 515 B/C).[13]Here notwithstanding point (n) in her IT1 the Applicant has not submitted or asserted to us (or the Employment Tribunal) that a policy regime or practice existed. It follows, in our judgment, that the Applicant's argument that section 68 (7) (b) of the Race Relations Act 1976 applies is a bad one.[14]Further, we comment that in our judgment the Akhtar decision supports the Respondent's submissions that the fact that there are a number of steps in a disciplinary process carried out by an employer does not mean that(i) the process is to be, or should be, treated as a continuing act, or(ii) that (as the Appellant asserts) the process as a whole is to be, or should be, treated as the complaint or the "act complained of". This appears, for example, from the judgment of Mummery LJ, where he says this:
"As to Miss Akhtar's complaint, it is my view that, on a sensible reading of the whole of the statement in the IT1 prepared by her union representative, Miss Akhtar was making complaint about more than one act of discrimination. Paragraph 12 of her complaint encapsulates her discrimination complaint in these words: 'I believe that I have been discriminated against by FSU on the basis that they deny me my contractual right to use the company's grievance procedure because I exercise my right under the Race Relations Act to use acquire information'. That may be properly characterised as a composite complaint based on a succession of acts done by different officers at the FSU at different times in relation to different stages of the grievance procedure. The first act occurred on 21st September 1994 and the second on 29th September 1994. Both of those are outside the relevant period of 3 months. It is made clear in paragraph 11 of the statement in support of Miss Akhtar's application that there was a third act. That was the response of Miss Kay on 1st February 1995 to the request in the letter of 21st December 1994 written on Miss Akhtar's behalf. The act of Miss Kay was to refuse the request in the letter of 23rd December to set up a Stage 3 meeting 'as provided in your grievance procedure'. That refusal was not the same as the earlier refusal by Mr Asher in relation to Stage 1 and the refusal by Mr Ibegbuna in relation to Stage 2. Those refusals did not relate to a Stage 3 meeting which had been requested. Those refusals were by different persons at different times in respect of different stages of the grievance procedure."
[15]Further, the judgments of Mummery LJ and Pill LJ in the Akhtar case emphasise the need to identify clearly and precisely the act complained of.[16]In our judgment, for the reasons we have given the Employment Tribunal were correct to conclude that the final appeal hearing before a panel of councillors on 13 July 1995 was a separate act complained of and that section 68 (7) (b) of the Race Relations Act 1976 did not apply. The Just and Equitable Ground[17]Section 68 (1) and (6) of the Race Relations Act 1976 provide as follows:
"(1) An employment tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of – (a) the period of three months beginning when the act complained of was done … (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."
[18]Hutchison v Westward Television Ltd [1977] ICR 279, in particular at page 282 E to F makes it clear that the task of an Appellant in establishing that an Employment Tribunal has erred in the exercise of its discretion conferred by section 68 (6) of the Race Relations Act 1976 is a heavy one. Mr Bowers told us, and we accept, that it was largely because of this that(i) he did not invite this Tribunal at the Preliminary Hearing to allow the appeal to proceed on the basis of a challenge to the finding of the Employment Tribunal that time should not be extended, and(ii) he had confirmed in writing to the Respondent that the only grounds of appeal that were being pursued were those identified by this Tribunal on the Preliminary Hearing.[19]However, following our invitation to consider appealing on this finding the Appellant, through Mr Bowers, has done so. In doing so the Appellant relies upon a decision reported after the time that this case was last before us. That case is Aniagwu v(1) London Borough of Hackney and(2) Owens [1999] IRLR 303 .[20]Leaving aside for the moment the Aniagwu case we remain of the view that there was always a reasonably arguable point in this case that the Employment Tribunal erred in the exercise of their discretion under section 68 (6) of the Race Relations Act 1976 by not taking into account properly the fact that the Applicant was pursuing her internal disciplinary and appeal process which could have given her the result she sought and the final appeal therein was concluded within three months of the issue of her application.[21]Before turning to deal with the merits of this argument we must first deal with the point raised on behalf of the Respondent that we should not allow the Appellant to pursue the point. This argument is based upon the decision of the Appellant not to pursue an appeal against the exercise of this discretion by the Employment Tribunal and the confirmation of that decision after the Preliminary Hearing. In support of its stance the Respondent relies on Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 . In our judgment that case and the reasoning contained in it is not directly applicable. In our judgment a closer analogy to the present situation is the approach taken by the Court of Appeal in permitting an amendment to a Notice of Appeal out of time. However, we accept that in taking that analogy it should be remembered that the ability of this Tribunal to award costs is far more restricted than that of the Court of Appeal.[22]In our judgment, albeit that the raising of this additional point resulted in there being an adjournment and therefore extra costs being incurred by the Respondent, we should allow the Appellant to pursue this point. It does not involve the introduction of any further points of evidence and was one of the numerous points originally raised in the Notice of Appeal. We acknowledge that the Respondent has suffered some prejudice in incurring additional costs by the adjournment but in our judgment that prejudice is not of sufficient weight to found a conclusion that in all the circumstances of this case a reasonably arguable point should not be taken and considered by us.[23]We comment generally that this Tribunal receives and is regularly very grateful for assistance from lawyers acting pursuant to the Employment Law Appeal Advice Scheme. This case is no exception. Part of the help given pursuant to that scheme is the "pruning" of lengthy and often imprecise Notices of Appeal. In our judgment if on a full hearing this Tribunal, or an Appellant, considers that such "pruning" has been too severe it will often be the case that this Tribunal should allow the point that has been "cut out" to be argued. Naturally there will be exceptions to this conclusion. One exception could be when this Tribunal on the Preliminary Hearing dealt with a particular point in some detail and concluded that it was unarguable. Another could be when the Court of Appeal has upheld a decision of this Tribunal on a Preliminary Hearing that only certain points should be allowed to be taken on the appeal. Here the point was not dealt with specifically by this Tribunal on the Preliminary Hearing, and in our view the fact that in this case Mr Bowers confirmed to the Respondent that the Appellant was only taking the three points that were identified on the Preliminary Hearing does not preclude the Appellant from arguing this point before us.[24]Having heard argument on this point, although we remain of the view that the point was reasonably arguable we have concluded that it fails.[25]Paragraph 19 of the decision in the Aniagwu case was relied on by the Appellant to support a submission that that case was of general application and led to the result that always, or generally, when the last appeal of an internal process took place within three months of the application, an Employment Tribunal should allow an extension on the just and equitable ground to bring in the complaints which were the subject matter of that appeal process. We do not agree that the Aniagwu case has that effect. This is because the reasoning in that case is directed to its specific facts. This is apparent from paragraph 19 (the paragraph relied upon on by the Appellant in this case) which is in the following terms:
"It seems to us that that is entirely compatible with the reason given by the applicant, as to why he had delayed, and if the tribunal had asked themselves whether, in those circumstances, the applicant had acted reasonably, it seems to us that every tribunal would have concluded that he was well entitled to take the view that it would be sensible to seek to redress his grievance through the internal grievance procedure before embarking on legal proceedings. That was the position he had made plain to Hackney in the internal documents and it seems to us that every industrial tribunal, unless there was some particular feature about the case, or some particular piece of prejudice which the employers could show, would inevitably take the view that that was a reasonable and proper attitude for someone to take, albeit that he had an extant complaint of race discrimination. He was looking to have his grievance resolved rather than go to law."
[26]It is apparent from that citation that this Tribunal in the Aniagwu case had regard to:(a) the fact that the Applicant in that case had taken the view that it would be sensible to seek redress through the internal grievance procedures before embarking on legal proceedings, and(b) that decision of the Applicant was made known to the Respondents in the papers. Those are special facts which do not exist here.[27]However, in our view the Aniagwu case does provide authority for the propositions that:(i) one of the circumstances that should be taken into account in exercising the discretion conferred by section 68 (6) of the Race Relations Act is that an applicant has been going through an internal appeal or grievance procedure which could resolve the issues with which he or she is concerned, and(ii) there is force in the proposition that it is reasonable to go through and exhaust such procedures rather than go to law. Further in this context we comment that the test in section 68 (6) is different to that contained in section 111 of the Employment Rights Act which is a test based on reasonable practicability and not one where what has to be assessed is what is just and equitable in all the circumstances.[28]Here the Appellant was going through the internal grievance and appeal procedure and the final appeal could have resolved the matters about which she complained. However, she did not advance this as a reason for not bringing her claim earlier. Further in our judgment and having heard the submissions of the parties a full and fair reading of the Extended Reasons shows that the Employment Tribunal were aware of, and had regard to, both these points. This is because they treated the final appeal as "an act complained of" and by referring to the fact that the Appellant had been advised during the appeal process they were taking the view that she knew, or ought to have known, that she could have brought a complaint earlier or have reached and communicated a decision that she was not going to go to an Employment Tribunal until the appeal process was over.[29]Additionally in reaching its decision pursuant to section 68 (6) it is apparent to us that the Employment Tribunal had in mind the nature of the complaints made by the Applicant relating to her suspension from work and the earlier disciplinary hearing. They heard evidence as to this and, indeed, heard the whole of the Applicant's case as to this with the exception of the matters referred to under the heading herein "the evidential grounds".[30]A reading of the papers shows that the complaints of racial discrimination made by the Applicant were limited and unspecific.

(n) of her IT1 she asserted:

"I am convinced that my transfer to the Beaumont Rise office in March 1993 was pre-arranged as part of a strategic move to get rid of me, and believe that the motive was racial."
[31]Further a document in the Employment Tribunal bundle which was provided to us during the course of this hearing headed "Appeal Against Disciplinary Decision Representations by Salima Dean" includes the following:
"(ix) In considering whether charges were substantiated against me, consideration should have been given to the following factors: that my manager from March 1993 at St. Johns and Beaumont Rise offices, Sabrina Rees, formed a personal dislike to me, allowed that to affect her behaviour towards me and her assessment of me, and made it more difficult for me to carry out my work properly (see paragraph 7 below) that I have not participated in any advanced child protection practice training (see paragraph 10 below) that English is my second language and that I am dyslexic (see paragraph 11 below) my previous long and positive record of good service (see paras 5 & 6 below) the commitment of Islington Council to apply equal opportunity policies to assist managers of ethnic minority background to become better qualified."
[32]As to this it is to be noted that there is no allegation, or clear allegation, that Ms Rees was "racially motivated".[33]It follows that as the Employment Tribunal found in respect of the final appeal hearing the papers show that the Applicant's allegations as to racial discrimination are also unspecific in respect of her suspension, the earlier disciplinary hearing and generally.[34]In our judgment in all the circumstances of this case the argument that the Employment Tribunal failed to take properly into account that the Appellant was pursuing a grievance and appeal which could have provided her with the result she sought in exercising their discretion under section 68 (6) of the Race Relations Act fails because, as we have said, after hearing the submissions of both sides we have concluded that on a full and fair reading of the Extended Reasons the Employment Tribunal were aware of, and had regard to,(i) this fact,(ii) the fact that it was not being put forward by the Appellant, who had had the benefit of advice, as a reason why she sought to bring her claims late, and(iii) the point that her allegations of racial discrimination related to events which had taken place a long time ago and were unspecific.[35]We would add, although it is not necessary for us to do so, that having heard full argument and having regard to the circumstances of this case that we have identified we too would not have given the Appellant an extension under section 68 (6) of the Race Relations Act 1976. The Evidential Grounds[36]In our judgment when it is remembered that(i) the relationship between Ms Rees and the Applicant is relevant as background to the act complained of (i.e. the conduct of the final appeal hearing),(ii) in her IT1 the Applicant made no specific allegation against Ms Rees that she was "racially motivated" and(iii) Ms Rees took no part in the decision making process at the final appeal, the fact that Ms Rees was not cross-examined does not give rise to any unfairness or constitute an error of law by the Employment Tribunal. In reaching this conclusion we accept the general point made on behalf of the Appellant that a litigant can establish or bolster her case in cross examination particularly when the reasons or motives of the other side are in issue. This would as the Employment Tribunal have accepted have been a valid point in respect of the cross examination of Ms Rees if her actions and conduct had been integral to the complaint rather than background to it.[37]As to Mr Harrison the Employment Tribunal read his statement but did not hear any oral evidence from him. In our judgment this did not give rise to any unfairness or error of law by the Employment Tribunal in its determination of the complaint before it which related to the conduct of the final appeal hearing by a panel of councillors on 13 July 1995. Again his evidence was not as we understand it primarily directed to the final appeal hearing and was in large part evidence of opinion. Further as the Employment Tribunal read his evidence and it was put in on behalf of the Appellant it is unlikely that oral evidence from Mr Harrison in chief and cross examination would have advanced the Appellant's case. In our judgment the approach taken by the Employment Tribunal to Mr Harrison's evidence was well within the ambit of their discretion and as we have said did not result in any unfairness. Costs[38]The Respondent asked for costs occasioned by the need for an adjournment of the hearing. We refused that application. In our judgment although we recognise that the adjournment to deal with the point we raised and invited argument on has caused extra expense to the Respondent in not refusing to take it the Appellant did not act unreasonably. Further in our judgment there is no other conduct that would justify making an award under Rule 34. Indeed we would comment that the fact that the Respondent sensibly sought confirmation that the grounds of appeal were limited to those identified by this Tribunal on the preliminary hearing is an indication that the Respondent (in our judgment correctly) recognised that there was potential for the decision not to extend time to be challenged at the full hearing of the appeal. We acknowledge that if our power to award costs was not restricted by Rule 34 that confirmation would have founded an order for costs but this does not mean that the fact that the Appellant pursued a point we raised and which she had previously indicated would not be taken brings this case within Rule 34.