MS B BARLOW v LONDON BOROUGH OF SOUTHWARK [2000] UKEAT 536_00_0711

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 536_00_0711Case No Appeal No. EAT/536/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS B BARLOWAPPELLANTLONDON BOROUGH OF SOUTHWARKRESPONDENT
Before
His Honour Judge A WilkieDate 7 November 2000
[1]APPEARANCES For the Appellant MR L DAVIES (Solicitor) North Lambeth Law Centre 14 Bowden Street London SE11 4DS JUDGE A WILKIE QC This is an appeal against a Decision of the Employment Tribunal held at London South on 16 February of this year, that it did not have jurisdiction to determine complaints and arising from, and, therefore, dismissing her complaints of race discrimination against her then employers: the London Borough of Southwark.[2]In paragraph 10 of the Decision, the Tribunal applied itself to the question whether it was just and equitable for the Tribunal to hear her complaints submitted out of time. They say this:
"There was a delay of six weeks relation to the last act complained but in relation to the earlier matters the delays were much longer. We were unable to extend jurisdiction in this case because we did not have an adequate basis for doing so. In all the circumstances….we considered that it was not just and equitable to extend the time in relation to any of the Applicant's complaints."
In so doing they said they were taking into account the matters that they had set out in the preceding paragraphs of their Decision.[3]In the Notice of Appeal settled on the Appellant's behalf, by the North Lambeth Law Centre, a number of points are taken as to why it is said that this was either an erroneous decision in law or perverse. It appears that Ms Barlow was expecting to be represented at the Tribunal hearing by a Mr Samuel who had been advising her throughout, who had her bundle of documents and upon whom she was depending, both to present her case and, it appears, to support her as she was said, on the basis of medical evidence which has been shown to us, in a highly stressed condition.[4]Mr Samuel did not attend, apparently to Ms Barlow's surprise, and, as a consequence, she presented the case herself and the Tribunal dealt with the matter on the basis of a bundle of documents which was presented and compiled by the Respondent. It is not suggested in the Notice of Appeal or the Skeleton Argument that Ms Barlow applied for a postponement of the hearing on the grounds that she was disadvantaged by the absence of Mr Samuel and the documents. What Mr Davies says in the first two paragraphs of the Notice of Appeal is that no reasonable Tribunal would have continued in the absence of a representative on the basis of one side's bundle of documents without either postponing the hearing, or at the very least, advising the Applicant to consider postponing the case.[5]In the third paragraph he also says that that lack of representation in race applicants generally, where it occurs, contravenes Article 6 of the European Convention for Human Rights and or The Human Rights Act. It seems to us not seriously to be arguable that there is a general deficiency in relation to race discrimination cases. It does seem to us to be arguable, in this particular case, that a reasonable Tribunal considering the question whether it was just and equitable to allow this application to proceed or to dismiss it there and then should have at least, had regard to, and addressed the question in its Decision, whether it should hear the case in the absence of her representative, and the documents which he had. Therefore we agree that this matter should proceed to a full hearing on the basis of paragraphs (a) and (b) of the Notice of Appeal.[6]The question of jurisdiction arose because the application was not submitted until 31 August. It was in respect of a series of complaints going back over a number of years, but which culminated in a Decision on 5 May to remove her from her post as Night Care Officer and, following upon that, her being informed on 15 June that she would no longer receive the night hours allowance. If the last act of discrimination complained of was the act of 5 May, then she was, prima facie, out of time for presenting an application, whereas if the last act complained of was 15 June, then her complaint would have been in time. Her complaint would then have been permitted to proceed to a full hearing at which the question would have arisen whether that single act of discrimination was all the Tribunal could deal with or whether it was part and parcel of a continuing series of acts all of which would have brought into play. Mr Davies says that the finding of the Tribunal that the relevant last act complained of on 5 May was an erroneous decision.[7]They deal with this in paragraph 9 of their Decision:
"The three month limit in relation to the last act complained of ran out on 4 August 1999. It is not in dispute that the letter dated 15 June 1999 which was sent to the Applicant was simply a consequence of the act which she complains of on 5 May 1999."
In addressing the issue, they appear to be proceeding on the basis that there has been a concession by or on behalf of Ms Barlow that 15 June was not a matter of complaint but simply a consequence of a previous matter of complaint, namely 5 May. That may well be a correct analysis in legal terms. We are aware of authority in this Tribunal to that effect. It is clear to us from a letter from solicitors then acting on the Appellant's behalf to the Tribunal in preparation for an interlocutory hearing at which the issues in dispute were to be identified, that the Tribunal, appears to have misunderstood the position in saying that this was not a matter of dispute. The letter which we have shown today, and which should be presented to the Employment Appeal Tribunal which hears this matter fully, makes it clear that the solicitors were saying in terms that the last act complained of was the letter of 15 June, albeit as a consequence of an earlier Decision. That letter was, they said, the final straw. Therefore it does seem to us that the question whether this Tribunal, in addressing that issue as a matter not in dispute, approached it on an erroneous basis, is arguable and should be advanced at a full hearing.[8]In the Extended Reasons concluding that they did not have jurisdiction, the Tribunal, in a series of paragraphs, went into some detail as to the nature and extent of advice available to the Appellant, either in fact or potentially available from certain public sources. They also had regard to her medical condition, though not on the basis of any report, as that document had not been disclosed by the Respondent and, in any event, was in possession of Mr Samuel who had not attended the hearing.[9]The essence of the approach of the Tribunal was to focus on the period of delay and the reasons for it, and they concluded that the Applicant had not given any proper account of the delay from May 1999. Their conclusion was that they were unable to extend jurisdiction because they did not have adequate basis for doing so.[10]Mr Davies, in paragraphs (e) (f) and (g) sets out grounds of appeal, in effect asserting that the Tribunal erred in law in its attitude towards the impact of legal advice and its availability to the Applicant. It seems to us that these do not constitute separate grounds of appeal but are really arguments in support of what is the main thrust of his appeal which is in paragraph (i) of the Notice of Appeal: namely that the Tribunal took the wrong approach to the issue of jurisdiction, and failed to follow the guidelines set out in the relevant case law.[11]In our judgment it is arguable that the Tribunal in paragraph 10 failed to address the question of "just and equitable" in the correct way. It is clear that there are a number of factors which a Tribunal may properly take in to account, in particular the prejudice respectively to the Applicant and the Respondent of an adverse decision, the conduct of the Respondent since the acts complained of, and the question of professional advice or otherwise. This Tribunal appears not to have addressed the question of prejudice to the Applicant and the Respondent of an adverse decision.[12]Furthermore, in connection with the conduct of the Respondents since the matters complained of, in paragraph 9 they refer to something that happened in October 1999, namely that:
"Subsequently in October 1999 the matter of disciplinary proceedings was revived, but this, was after the date on which the Originating Application was submitted."
There is nothing in the history of the matter set out in the Decision which explains what disciplinary proceedings there were, which appear on the face of this Decision to have been revived in October 1999. Neither Mr Davies nor his client were able to assist us as to what this meant, because neither of them was aware of there being any disciplinary proceedings in being prior to October 1999.[13]In any event, it seems on one reading of paragraph 9, that this Tribunal discounted the impact of the reviving of such disciplinary proceedings in connection with the question of just and equitability, essentially because it was after the date on which the Originating Application was submitted. The authorities suggest that the conduct of the Respondent since the matters complained of is all material which may properly be taken into account. So this seems to us, arguably, to be a further failure by this Tribunal.[14]One of the matters which should expressly be taken into account is the period of the delay. In the Decision, paragraph 10, reference is made to a delay of six weeks. Mr Davies has pointed out to us that on the basis of the Tribunal's findings that the last matter of complaint was 5 May. Their finding was that the Applicant signed her application on 26 August and handed it to the CRE, which then did not submit it until 31 August. Thus the relevant period of delay is 27 days or the relevant period of delay attributable solely to the Applicant is 22 days - barely half the period referred to by the Tribunal. What Mr Davies says is that on the face of it, therefore, this Tribunal, in considering a relevant factor, misinformed itself as to the extent of the delay and therefore, to that extent, may have misdirected itself. It seems to us that too is a matter which can be properly subsumed within paragraph (i) of the Notice of Appeal.[15]In the Notice of Appeal there are paragraphs (k) and (l) which do not seem to us to be free standing grounds but are really arguments feeding into the main point in paragraph (i). In addition, Mr Davies has in his Notice of Appeal raised issues concerning the European Convention of Human Rights in relation to the time limit of three months. It seems to us that that is simply not arguable, and we do not give permission for that issue to be ventilated at a full hearing.[16]Therefore we do give permission for this case to go forward to a full hearing on the limited basis and on the specific grounds to which we have referred in this judgment. In addition, we do think that it would be of assistance to the Employment Appeal Tribunal, in considering this matter fully, were there to be included in the EAT bundle the medical report of 5 October 1999 to which we have referred, as well as the letter from Ms Barlow's then solicitors to the Tribunal in respect of the matters which are in issue, to which we have also referred. As far as categorisation and times are concerned, we have an estimate of half a day from the law centre and half an hour from the Respondent. We think half a day is probably going to be sufficient. There is an indication that the Appellant feels that the Chairman's Notes are relevant, we do not agree. On the face of it all the matters are contained in the Decision. This is a Category C case.