Shand v. Leicestershire County Council & Ors [1999] UKEAT 9_99_0303

EAT
Shand v. Leicestershire County Council & Ors
[1999] UKEAT 9_99_0303 · 1999-03-03
THE HONOURABLE MR JUSTICE HOLLAND By way of an IT1 dated 7 August 1998, an Applicant, Mr Franklin Shand, makes a complaint of race discrimination and that complaint is expanded by way of a statement of case that appears upon pages 7-9 of our bundle. It is manifest from that that he is complaining of race discrimination underpinning a series of complaints, the earliest of which is dated 1995 and the latest of which is dated May 1998, that is, the date of the hearing of an internal County Council panel which "upheld all of my grievances with a caveat that any employee, regardless of their race, may have been treated in the same way". The essential case is that there has been racial discrimination throughout, the last such incident being the way in which this panel dealt with the matter at the conclusion of his invocation of the internal grievance procedure.The matter came first before an Employment Tribunal on 10 November 1998. The decision as recorded is:"The unanimous decision of the tribunal is that the applications to the tribunal other than the application relating to the appeal hearing on 11,12, 14 May 1998 are out of time and shall be dismissed".The crucial passage appears at paragraph 5 of the extended reasons:
"We accept that the question of the appeal hearing in May 1998 is the only issue which was presented within 3 months of the tribunal. We are satisfied that the applicant is not putting forward an allegation of either racially discriminatory policy which is continuing or a continuing course of conduct. It is therefore clear that all of the allegations, apart from that relating to the May appeal, are out of time. Under the Race Relations Act 1976, we have to decide whether it would be just and equitable to extend that time. We consider it would be wrong to do so. There is a very long period since the specific allegations and they would undoubtedly be difficult to establish by evidence at this stage. In addition however, the applicant has been represented by his Union and was able to put forward a grievance. There seems to us to be no reason why he could not have similarly submitted an application to a tribunal within a reasonable period. We also take account of the fact that the applicant appears to be trying to get the tribunal to act as a further stage in the appeal process, which is not our function. As we are not prepared to extend the time to include those allegations which are out of time, we are dismissing them as beyond the jurisdiction of the tribunal and that leaves only the allegation relating to the appeal in May 1998."
In an excellent submission Mr Galbraith-Marten on behalf of the Applicant, now the Appellant, submits that this matter should go forward for an inter-partes hearing, there being a plainly arguable point. The essential point that he raises, and the one on which we base our decision, relates to Section 68(6) of the Race Relations Act 1968, which provides that a Tribunal may consider a complaint which is out of time if in all the circumstances of the case he considers that it is just and equitable to do so.As to this, he concedes that in the paragraph that is cited, the Employment Tribunal did direct itself correctly as to those terms but his complaint is that thereafter they failed adequately to consider the material that was appropriate to making a decision as to whether it would be just and equitable to hear the earlier complaints, notwithstanding that such were out of time. He draws attention to an unreported decision of this Tribunal, Aniagwu v London Borough of Hackney (2 September 1998) , which includes the observations "It seems to us that the industrial tribunal have signally failed to deal with the true nature of the reason why he did not present his complaint earlier when dealing with the just and equitable position."Mr Galbraith-Marten has persuaded us that there is an arguable point, and one which would merit an inter-partes hearing. He will forgive us if he detects a note of reluctance. This arises purely because a very long drawn out saga is now, through our order, going to be made even longer, but the weight of his point is such that we think it right to give effect to it. We therefore direct that the matter be listed for an inter-partes hearing so that this Tribunal may consider on that basis the essential submission that he makes about the approach of the Employment Tribunal to the issue as to whether it was just and equitable to extend the time for the purposes of the complaints that arose prior to May 1998.The matter will be heard for half a day, Category C.