MR LEBORT GETTEN v NOTTINGHAMSHIRE COUNTY COUNCIL SOCIAL SERVICES [2000] UKEAT 102_99_2703

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 102_99_2703Case No Appeal No. EAT/102/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR LEBORT GETTENAPPELLANTNOTTINGHAMSHIRE COUNTY COUNCIL SOCIAL SERVICESRESPONDENT
Before
Mr Justice Burton Mr D A C Lambert Miss S M WilsonDate 27 March 2000
[1]APPEARANCES For the Appellant MISS J EADY (of Counsel) Instructed by: Messrs Andersons Solicitors 42 Ropewalk Nottingham NG1 5EJ For the Respondents MR S JONES (of Counsel) Instructed by: Messrs Nelsons Solicitors Pennine House 8 Stanford Street Nottingham NG1 7BQ MR JUSTICE BURTON : This is an appeal by Mr Getten against the decision of the Employment Tribunal at Nottingham, which dismissed Mr Getten's complaints of race discrimination and disability discrimination against the Nottinghamshire County Council Social Services Department as Respondent, upon the ground that his complaint presented on 22nd July 1998 was out of time. The brief facts are that the Appellant made certain complaints to the Respondent which were contained in a letter of 13th January 1998, and his probationary service with the Respondent was terminated by notice given on 25th February 1998 to expire 29th March 1998.[2]On 12th March 1998 the Appellant wrote a 26 page letter to Mr Ward, a senior officer in the Department, in which he set out complaints which, as we understand it, were then (I think for the first time) complaints of race and/or disability discrimination. On the Appellant's behalf Miss Eady has asserted, although we have not seen the letter, that that was a letter which effectively commenced a procedure called the Harassment Complaints Procedure, a copy of which has been put before us. The scope of that procedure is defined in paragraph 5.1 and 5.2. They read:
"5.1 This procedure only covers complaints against individual or groups of employees concerning allegations of harassment, intimidation, bullying, discrimination or victimisation … It deals with complaints against an employee of the County Council or groups of employees … 5.2 It does not cover employees who are aggrieved against the County Council and its procedures. Those issues are dealt with under the Grievance Procedure … "
[3]It is common ground that the Grievance Procedure did not apply to this Appellant because he was only on probation and, thus, he had no procedure whereby he could appeal against, for example, his dismissal by the Respondent.[4]There has been some dispute before us, as I understand there may have been some dispute before the Employment Tribunal, as to whether the Harassment Complaints Procedure applied to him, but it appears to us clear that, on the face of what we have seen , it is likely that it did.[5]The 29th March 1998 came and went and so, as from that date, the Appellant ceased to be an employee of the Respondent, but the Respondent only replied to his 26 page letter by a response received on 1st May 1998. That response dealt with, and, as the Respondent would no doubt contend, adequately answered, all the complaints made by the Appellant.[6]The time limit for the making of a complaint by him of race or disability discrimination expired three months after his ceasing to be employed, either on the basis that he is no longer, after ceasing to be employed, entitled to complain of discrimination, or on the basis that the termination itself was the last act of discrimination. The Appellant did not put in his Originating Application to the Employment Tribunal on or before 29th June 1998, which would have been that three month period; he did not put it in until 22nd July 1998, as I have indicated.[7]When that Originating Application was issued, it contained detailed complaints which, although we have not see the 26 page letter, no doubt repeated a good deal of the contents of that document, but it included as part of the allegation of discrimination a complaint about the 1st May 1998 response itself, thus complaining that the Respondent's reaction to his complaint of 12th March 1998 and the dealing with it and failure, as he would submit, adequately to investigate or act on it, was itself discriminatory. On that basis, he asserted in his Originating Application, and subsequently before the Tribunal, that his three-month time limit ran from 1st May 1998. In his Originating Application he says as follows:
"As the final, highly critical communication was received on 1st May 1998, it is this date that I am basing the 3 month time limitation [ on ] to be able to approach a tribunal legitimately."
Later in the same document he sets out his complaints about that letter of 1st May 1998.[8]He represented himself before the Tribunal on 9th November 1998, and it may well be that he did so in a way which did not best serve his own purposes. He certainly made no attempt to apologise for any error or any delay and that may, itself, have been an unsatisfactory and unfortunate way in which to put forward his own case.[9]The fact is, however, that the Appellant was mistaken in believing that the time limit ran from 1st May 1998.(a) There seems to have been at some stage some suggestion that the very implementation of an internal appeal, as he believed the harassment procedure to be, would itself somehow justify the bringing of the Origination Application only on 22nd July 1998. That seems to us, as it may well have seemed to the Employment Tribunal, to be completely hopeless in terms of argument. The decision of Aniagwu v London Borough of Hackney and Owens [1999] IRLR 303 , which would not have been before the Tribunal, but which accurately sets out the law, does make it clear that, where an employee has waited pending the outcome of some internal appeal, that can amount to exceptional circumstances justifying an extension of time. However what is significant, even if there were some patience allowed for while the employee awaits the outcome of the internal appeal, such as is said to have occurred here, is that all that would do would be to justify his waiting until after its outcome to put in an application to the employment tribunal. If, for example, here he had waited until after 1st May, if his time had been otherwise expired, and he had then put in an application in two or three days after 1st May, having waited until receiving the response of the Respondent, it seems most unlikely that anyone would have opposed, never mind being successful in opposing, an extension of time. But that is not this case, because what the Appellant has sought to say is that the three months itself does not even begin to run until 1st May.(b) As for the allegation that time runs from 1st May 1998, that, as I have indicated and, indeed, was made clear by the Tribunal, is wrong in law. The case in the Court of Appeal in Adekeye v The Post Office (No.2) [1997] IRLR 105 , makes plain, by looking at a combination of sections 69 and 4 of the Race Relations Act 1976 , that there can be no complaint of discrimination by ex-employers after the termination of an employment, and that employment is not notionally continued simply by virtue of the existence of an internal appeal, and a fortiori not the continuing existence of something that is not an internal appeal, but is simply a continuing outstanding complaint under a harassment complaints procedure. In those circumstances, the Appellant could not rely on the uncompleted harassment complaint procedure still outstanding at the end of his employment, and when he came to receive the answer to that complaints procedure on 1st May he was no longer an employee and could not, therefore, complain, even if there was any discrimination, after the date of termination of his employment on 29th March 1998. Thus, the 1st May letter does not extend his time period after 29th March, as the Tribunal correctly found.[10]What is submitted to us by Miss Eady on appeal, having briefly looked at what I have described in (a) in paragraph 9 above, is by reference to (b), namely that there was plainly an error by the Appellant in his belief that his time ran from 1st May 1998. The Tribunal makes a clear finding that this Appellant had a good knowledge of the legislation, but it makes no finding that he knew about the decision of Adekeye . It appears clear to us that, without knowing about Adekeye , a mistaken belief that the three months time limit only ran from 1st May would have been a perfectly understandable mistake, if it was made. It was a mistake which was shared by those appearing for the Appellant in Adekeye at all stages through and up to the Court of Appeal, and of course by the Employment Tribunal in Adekeye whose contrary decision was overturned by the EAT and the Court of Appeal.[11]In those circumstances there was, it seems to us, a plain error by the Appellant, if, indeed, the position was that he, at all times, believed that he had three months from 1st May 1998. It does not appear to have been suggested at the Tribunal below, nor, if suggested, to have been found by the Tribunal, that he was making up this case. On a different set of facts it could well be that it could have been suggested and/or found that the Appellant was simply, straightforwardly, out of time, perhaps because he had no intention of bringing a claim or was nervous about it or simply forgot about it, for whatever reason, he simply did not get round to doing anything about it until 22nd July; at which stage he realised that he was going to have to make up a case that his time limit had not run out, if he wanted to have any chance of bringing the claim; and so he then said that the latest date of discrimination was 1st May 1998, and hoped in that way to get through the time limit problem, without any real belief in it. That might have been a case that could have been put to him, but it does not seem to have been and it certainly was not the finding of the Tribunal. Absent such a finding, the finding, indeed, was the reverse, namely, that he did always believe, wrongly as it turns out, that receipt of the Respondent's response on May 1st gave him a three month extension of time from that date.[12]Against that background, I turn to the Tribunal's reasons. In paragraph 5 the Tribunal say as follows:
"5. The first question to be determined is the date from which time beings to run. Mr Getten told us that he took the view that time did not run until 1 May, which is the date upon which the Respondent rejected his "grievance"
. That plainly cannot be right as a matter of law. By 1 May, Mr Getten had long since ceased to be an employee and he does not, in any event, as we understand it, complain that the decision of 1 May was, itself, tainted by race or disability discrimination. …"[13]We make two comments about that passage. First, it does appear that the Tribunal was wrong in understanding that the decision of 1st May was not complained of as being itself tainted by race or disability discrimination. It appears clear from consideration of the Originating Application that, far from not saying so, he was indeed saying so, and was saying that that was the last act of discrimination, such as to cause the three months to run. Secondly, the Tribunal's correct statement that it "plainly cannot be right as a matter of law" that time ran from 1st May, is the starting point for the error under which the Appellant says that he laboured, but does not appear to be so recognised by the Tribunal.[14]In paragraph 6 the Tribunal asked itself the question as to whether it was just and equitable that the time limit should be extended. It points out that the Appellant "is a man of very forceful personality, very firmly held opinions and plainly not lacking in intelligence" . The Tribunal records that the Appellant "accepts that from the moment it became relevant, that is by the middle of January 1998, he was fully aware, not only of his rights to commence employment tribunal proceedings, but that there was time limit for doing so and that the time limit was three months". What the tribunal does not there deal with was the date from which such three months ran.[15]Then in paragraph 7 the Tribunal records as follows:
"7. The only reason which he can advance for delaying commencement of these proceedings is that he chose, as he puts it, to "adhere to" the Respondent's internal procedures while the Respondent did not, and because they delayed responding to his complaints they delayed the proceedings."
The Tribunal continues:
"There are, with respect, two fatal flaws in that argument. The first is, as Mr Getten has admitted, the procedures which he sought to invoke did not in fact apply to him as a probationer. The second is that he appears simply to have decided, despite his knowledge of the legislation, that time would run from the date upon which the Respondent replied to him."
We would make two comments in relation to that. First, it appears that there may have well have been a misunderstanding by the Tribunal, particularly as we have had an opportunity of looking at the Notes of Evidence, if it was being suggested that the Appellant was admitting that the harassment procedures did not apply to him. There was certainly no contest that the grievance procedure did not apply him, but it does not appear that he was admitting, nor would he have been right so to admit on what we have seen, that the harassment complaints procedures did not apply to him. It does not appear to us that it is central to the conclusion of the Tribunal that the Appellant was somehow accepting the harassment procedure not to apply to him, but it certainly appears to be a mistake by the Tribunal in its understanding of the facts. Secondly, we note that what is there recorded by the Tribunal is the Tribunal's correct underlining of the fact that the Appellant had knowledge of the legislation. But once again, that does not mean that he had knowledge, nor is there any finding that he had knowledge, of the impact of the case of Adekeye .[16]The Tribunal then continued in paragraph 7:
"This was not put to us as a mistake of law, a misunderstanding on his part for which he sought the exercise of the tribunal's discretion in his favour, but as a statement."
This appears to us to indicate what is described, no doubt euphemistically, as the "forceful" way in which the Appellant put his case in front of the Tribunal. I have already referred to the fact that it is no doubt unfortunate, given that he was unrepresented, that he did not present his case on the basis of asking for the Court's discretion, but the fact is that he was asking for the Court's discretion by his opposition to the Respondent's suggestion that he was out of time, and it was the duty of the Tribunal if they considered that there had been a mistake, to find that there was a mistake whether it was being put to them as a mistake or not. The Tribunal records:
"Mr Getten has given us no explanation for the ensuing delay of nearly 3 months other than that it was his personal determination that 1 May was the date from which time began to run."
That is of course right. There was no explanation for a further three months, particularly none that could possibly arise out of the continuation of the harassment complaints procedure until 1st May, other than that he believed, whether that was a personal determination or not, erroneously as it turns out, that 1st May was the date from which time began to run.[17]Finally, in paragraph 8, the Tribunal indicates that wrong advice by advisers, or genuine misunderstanding of legislation as a result of which an incorrect decision is made, can lead to a finding that it is just and equitable that the primary time limit should be extended. But the Tribunal then continues:
"But this is not one of those cases. It appears that Mr Getten fully understood the law. It also appears that he fully understood that the procedure to which he claims to have been adhering was not one which was in fact open to him. It also appears that he decided, for reasons which he had not explained other than that it was his decision, that time would run from 1 May."
In relation to that passage, the comments that we have made earlier apply once again. First, there was no finding, nor in our belief could there have been that Mr Getten understood the case law . Secondly, it does not appear to us that the Tribunal is right to say that the Appellant was wrong about the availability of the procedure to which he claims to have been adhering, but even if he was wrong about it – that is the availability of the harassment complaints procedure – that in itself could perhaps be said to be an error under which he was labouring. Thirdly, once again, in that it states that the Appellant "decided for reasons which he had not explained other than it was the Appellant's decision" , that time would run from 1st May 1998, that in itself, is the very error which the Tribunal ought to have been considering. The Tribunal then continued:
"In that he was in error, but for the reasons which we have given we do not think that that is such an error that entitles us to say that it is just and equitable that the time limit should be extended. In truth, these proceedings are very substantially out of time in the sense that he knew by 25 February that his appointment was to be terminated; he knew that it was to be terminated because of what he has characterised as negative reports by his supervisor and it is his case that those reports were negative because of his race and his disability. Yet he commenced these proceedings 5 months later in full knowledge of the statutory provisions and in particular the time limits."
It is unnecessary for us to repeat again the points that we have made earlier in this judgment with regard to this last passage, save to say that we find it difficult to understand what is meant "for the reasons which we have given we do not think that that is such an error that entitles us to say that it is just and equitable" . Either it was not an error, or if it was an error, then it appears to be an error arising plainly as a result of his misunderstanding of the law.[18]In those circumstances, we believe that the Tribunal erred in the way it considered this important question. It took the position either that this was not an error, but it is difficult to see that they could have reached that conclusion, and particularly so in the light of their own conclusion that it was an error, or that it was an error, but did not set that in the correct context, to which I shall return in a moment. On either basis, they did not consider any other matters such as, for example, whether there would be any prejudice to the Respondent if the matter were allowed to continue out of time, which would outweigh the prejudice to the Appellant of ruling the case out, or which would render it possible that there would not be a fair hearing or as fair a hearing as if the matter had been brought in time. Of course absence of prejudice is not decisive, one way or the other, not least because of the importance which these tribunals place upon bringing applications in time, but it is nevertheless a factor to be borne in mind, after the primary considerations as to whether there is any reasonable excuse for the delay have been looked at and considered.[19]I turn then to the question of the error. It appears clear that, even on the findings of the Tribunal, this was an erroneous position for the Appellant to have taken resulting from his lack of knowledge of the case law; one which he adopted forcefully, which he did not apologise for, and which he did not specifically assert, seemingly because he still did not accept that it was or had been a mistake or an error, but error it was, an error of law such as might well justify an extension of time, all other things being equal, but one which was not adequately considered by this Tribunal because of the view it formed that it should not be regarded as an error, but as a statement or a personal decision.[20]Mr Jones in his able argument on behalf of the Respondent, has pointed out that, without prejudice to his opposition to the appeal, if in fact the Tribunal had concluded that this was an error because of the lack of appreciation of the effect of the Adekeye case, the Tribunal, if so advised, would not have stopped there, because there would then have been a further issue to decide. If the basis upon which the Appellant was acting was a mistaken belief that the time ran for three months after the last act of discrimination, if the last act of discrimination extended the time within section 68 of the 1976 Act, then it would need to have been established that that was indeed the factual scenario but for the case of Adekeye , i.e. that there was a continuing discrimination such as to trigger section 68 causing, but for the Adekeye point, the discrimination to have continued on until 1st May. He points out, and we agree, and Miss Eady does not contend to the contrary, that we do not have sufficient information before us to be able to reach a conclusion, or to say that the Tribunal itself, had it considered the matter, must inevitably have reached a conclusion, that the discrimination continued between 12th March (or 29th March) and 1st May 1998, so as to extend time under section 68 through to 1st May. If, therefore, there was no continuing discrimination, then even apart from the Adekeye case, the time would have run from 29th March.[21]There is then a further point, which Miss Eady would wish to run, namely that although this matter was not at all looked into by the Tribunal or before the Tribunal, it might then be that a case could be run by the Appellant that he was under a mistake about the fact that there was such continuing discrimination, if he was.[22]In all those circumstances, it is quite plain that this matter must be remitted to the Employment Tribunal for a further consideration of this issue, to see whether it is just and equitable to extend the time, on the basis that there was an error, if there was an error of some description, on the part of the Appellant. It seems right to us that the whole matter should be opened, not simply the decisions made by this Tribunal but the whole question of just and equitable should be at large, and without being bound in any way by even any provisional conclusions made by this Tribunal.[23]Mr Jones in his submissions asserted and conceded that if the matter were to be sent back, it should not be sent back for a further preliminary hearing, but that it would be best that the issue as to out of time should be dealt with at a substantive hearing, so that all parties would be ready, either to deal with both matters, or to deal with the out of time point first, whatever should be the decision of the Employment Tribunal as to the best way to proceed.[24]We agree. Again, Miss Eady did not oppose the matter and indeed welcomed it, that if this matter, as it is, is to go back to an Employment Tribunal, it should go back on the basis that there be no further preliminary hearing, but that the Tribunal hearing be fixed on the basis that it will deal with the issue of out of time as well as with the substantive hearing, although we do not in any way dictate how they should deal with it, and as to whether they should take those matters as discrete points or hear all the evidence and decide everything at the end. That is a matter for them.[25]Finally, it was submitted by Miss Eady that if the matter were remitted, it should be remitted to a different Tribunal, and we conclude that it is appropriate in this case that it should do so.