MR A P FADIPE v REED NURSING PERSONNEL [2000] UKEAT 791_00_2011

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 791_00_2011Case No Appeal No. EAT/791/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A P FADIPEAPPELLANTREED NURSING PERSONNELRESPONDENT
Before
His Honour Judge H Wilson Mr K EdmondsonDate 20 November 2000
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON JUDGE WILSON : This has been the preliminary hearing of the proposed appeal by the applicant against the decision of the Employment Tribunal sitting at London (North) on 17th April 2000 which found that the applications he brought had to be dismissed because the claim of unfair dismissal was out of time and there was no jurisdictions in the tribunal to deal with the claim relating the provision of a reference. Mr Fadipe has conducted his own case today and has urged upon us that the decision of the Employment Tribunal was perverse because his case really arose out of health and safety issues which he had reported. He claimed he was dismissed for having reported them and connected with that matter was the provision of an unsatisfactory reference in due course. He says that those two detriments, the dismissal and the poor reference, are continuous and so far as timeliness is concerned, the last known detriment is the date which counts. That would be the date when the unsatisfactory reference was provided. It is clear from the judgment of the Employment Tribunal that Mr Fadipe learned about the unsatisfactory reference in late August or early September 1999. Finally, Mr Fadipe says that the case of Coote v Granada Hospitality Limited [1998] IRLR 656 should have been applied to his case by the tribunal.[2]We have considered carefully everything that he has said and we have had regard to what is set out in the extended reasons of the Employment Tribunal to see whether there is an arguable case that their decision was perverse and erred in law. We note that in paragraph 3 the tribunal goes to the root of the matter at once:
"… The obvious objection to Mr Fadipe's claim is that he did not have the necessary 12 months of continuous employment which is a requisite to Section 108 of the Employment Rights Act 1996. There are however a number of exceptions to that 12 month qualifying period and Mr Fadipe has stated that he is basing his claim on the fact that he asserted a statutory right and in the alternative or additionally that this was a health and safety case and that he was unfairly dismissed for one of those reasons and under Section 104 and 100 of the Employment Rights Act 1996, no minimum period of employment is required. If the Tribunal finds that Mr Fadipe was dismissed for a health and safety reason or for the assertion of a statutory right, then the dismissal is automatically unfair. However the right to claim unfair dismissal must be exercised within 3 months of the effective date of termination of the employment – Section 111 Employment Rights Act 1996. Mr Fadipe was notified of the termination of his services with the Respondents on 4 June 1999 but he did not present his Originating Application to the Tribunal until 17 November 1999, so he was more than two months out of time."
I pause there on our behalf to note that had he acted as soon as he learned of the unsatisfactory reference Mr Fadipe would have been very much closer to being within three month time limit if in fact he was not within it. However that may be, he consulted solicitors on three occasions and eventually presented his Originating Application, as we have noted, on 17th November 1999.[3]The tribunal dealt with the question of discretion in paragraph 7 and they said:
"… Mr Fadipe asked us to exercise our discretion to extend the three month period on the grounds that it would be just and equitable to do so, and also that the refusal to provide a satisfactory reference was a continuing act so that the period should be extended. The concepts of "just and equitable" and "continuing act" derive from the relevant time limit provisions in the Sex Discrimination Act and the Race Relations Act. They are not appropriate or relevant to claims of unfair dismissal under the Employment Rights Act and the Tribunal does not have the discretion to extend the period as Mr Fadipe would like us to. We must look at the circumstances of the individual case to decide whether or not it was reasonably practicable for the complaint to be presented within the three month period and we conclude that it was reasonably practicable for him to do so. …"
[4]Turning to the question of the unsatisfactory reference, in paragraph 8 the tribunal said that by itself such a claim was not a claim for which the tribunal had jurisdiction. They went on in that paragraph to say:
"… the employee may have remedies against the employer or former employer at common law but not before this Tribunal. …"
The tribunal then go on to say that the only possible exception might be the sort of circumstance in the case of Coote v Granada Hospitality Ltd , but they point out that that case derives from a claim of sex discrimination and that there is no such claim in the case they are dealing with nor under the Race Relations Act. The tribunal go on to say that:
"Mr Fadipe is a black African and it might be thought that the matters of which he complains could have come within the ambit of race discrimination. However in his evidence before this Tribunal Mr Fadipe made it clear that he did not believe that the harassment and unfavourable treatment which he received from the agency staff and hospital workers was because of his colour, race or nationality. … He expressly reject the suggestion that it may have been something to do with his race or colour …"
Therefore, the tribunal dismissed the applications.[5]We can find no legal fault in the way in which the tribunal reached its conclusions and we can see no prospect of success were this appeal to proceed to a full hearing and accordingly it must be dismissed at this stage.