DIRECT LINE ACCIDENT MANAGEMENT LTD v MR SHAHID ZAIDI [2001] UKEAT 0384_00_2509

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0384_00_2509Case No Appeal No. EAT/0384/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DIRECT LINE ACCIDENT MANAGEMENT LTDAPPELLANTMR SHAHID ZAIDIRESPONDENT
Before
His Honour Judge D SerotaDate 25 September 2001
[1]APPEARANCES For the Appellant MS A RUSSELL (Of Counsel) Instructed by Messrs Argles Stoneham Burstows Solicitors Stoneham House 17 Scarbrook Road Croydon Surrey CR0 1SQ For the Respondent MR T NESBITT (Of Counsel) Instructed by Messrs Irvin Mitchell Solicitors Imperial House 31 Temple Street Birmingham B2 5DB JUDGE D SEROTA QC This is an appeal from the Employment Tribunal sitting at London South chaired by Mr G H K Meeran, the decision being promulgated on 27 January 2000. The complaint concerns claims by the Applicant, Mr Shahid Zaidi relating to unfair dismissal, breach of contract and race discrimination.[2]The Employment Tribunal found in Mr Zaidi's favour so far as the claims for race discrimination and victimisation were concerned, but found he had not been unfairly dismissed. The Employment Tribunal awarded him a sum of £9,754.00 including interest as compensation. There is an appeal to this Tribunal on three grounds.[3]The first relates to the fact that on the first day of the hearing, the 8 April 1999 the Employment Tribunal permitted amendments to be made to the originating application to enable Mr Zaidi to make claims of race discrimination and victimisation in relation to a disciplinary process that had taken place in 1998.[4]There are also appeals against the amount of the award which is said to be excessive and in relation to the question of interest. Having heard Ms Russell of Counsel make submissions in relation to the first ground that we have mentioned we came to the conclusion that it would be right for us to hear submissions from Mr Nesbitt on this point. We have also concluded that we can give judgment on that point and we do so now. We have not heard submissions on the other points.[5]Mr Zaidi worked for Direct Line Accident Management Ltd which we understand to be a subsidiary of Direct Line Insurance. The history of Mr Zaidi's employment is to be found in the decision of the Employment Tribunal starting at paragraph 16.7 going on to 16.16. In particular at some point in time between August 1996 and January 1997 Mr Zaidi considered he had been unfairly treated by Mr Duckworth, who we believe was the Site Manager. He also applied unsuccessfully for various promotions which involved different jobs. He came to the conclusion that the reason he was making no progress was because Mr Duckworth may have been behind the decision to block his further advancement. He discussed his concerns in confidence with the production manager Mr Kent. Mr Kent told Mr Zaidi there were no concerns about his work whereupon Mr Zaidi asked whether it was anything to do with the colour of his skin. Mr Kent told Mr Zaidi he would treat the conversation in confidence and would try and investigate Mr Zaidi's concerns. Mr Zaidi asked Mr Kent not to do so, as it was a delicate matter he preferred to deal with it himself.[6]Mr Kent, contrary to the assurances he had had given Mr Zaidi informed management about Mr Zaidi's concerns. He was advised by the Personnel Department to speak to Mr Duckworth. Mr Duckworth was obviously upset and wanted an apology. Indeed he insisted on an apology. Mr Duckworth decided to invoke the grievance procedure in relation to what Mr Zaidi had told Mr Kent in confidence. The Tribunal was critical of the way in which this grievance was in fact examined and the way in which Mr Zaidi was treated.[7]At some point in time the grievance hearing was converted into a disciplinary hearing against Mr Zaidi in breach of the employer's procedures. This led to Mr Zaidi being issued with a final written warning on 8 May 1997. Mr Zaidi, apparently sought legal advice. We do not know what the effect of that legal advice was but he took no immediate steps in relation to this final written warning. At the end of October 1997 he was told that he would not get a pay increase because of the current disciplinary warning on his file.[8]As a result of being refused a salary increase, on 2 November Mr Zaidi wrote and complained to the Employer about this matter and it would be right to say that in that letter he claimed to have been victimised and that he hoped to have his concerns resolved internally. When the circumstances were looked into, the Respondent employer found the obvious procedural deficiencies in the conduct of the disciplinary hearing. The final warning was withdrawn and Mr Zaidi's salary increase was put into effect, backdated from 1 December 1997.[9]Thereafter, nothing was done by Mr Zaidi until a time came towards the end of 1998, we believe September 1998, when it came to light that he had authorised repairs to a car owned by his wife. It was asserted by the employers that Mr Zaidi had approved repairs beyond those that it was proper and appropriate for him to approve. The Respondent alleged that he had acted in breach of trust. After a disciplinary process had been initiated on 23 October Mr Zaidi gave four weeks notice of resignation. On 30 October he was told there was sufficient material to warrant a disciplinary hearing and he was suspended on full pay. On 2 November a disciplinary hearing took place and he was summarily dismissed on 3 November 1998, notwithstanding that Mr Zaidi had already given notice determining his employment.[10]We note that the Employment Tribunal considered that the decision to dismiss Mr Zaidi was within a reasonable range of responses that the employer could have taken and there is no appeal against that part of the decision. On 29 January Mr Zaidi launched his originating application. In his application, which appears to have been prepared by Messrs Irwin Mitchell, well-known Employment solicitors, he raised claims in respect of unfair dismissal, race discrimination and breach of contract.[11]The Originating Application contains details of the complaint to be included in section 11 of the Application. In paragraph 16 the Applicant states that he believed he was discriminated against on racial grounds in relation to his dismissal. One then finds paragraph 17 which we read:
"The Applicant claims to have been subjected to a history of discriminatory behaviour by the Respondent. The Applicant had previously raised with the Respondent the question of whether his treatment was different to his colleagues on account of his race. As a result of his query, a formal Grievance was brought against the Applicant resulting in the Applicant receiving a formal warning which was later overturned."
It is by no means clear whether this was simply background to the complaint relating to the dismissal, (which we think probable) or whether it is a separate and poorly particularised allegation of continuing discrimination. When the matter came before the Employment Tribunal on 8 April, Mr Nesbitt who then as now acted as Counsel for Mr Zaidi, produced a number of draft amendments. Those draft amendments raised issues which Mr Nesbitt submitted were relevant in three ways. Firstly in asserting that Mr Zaidi was the victim of a continuing act of discrimination if we can use that shorthand. Secondly, as background to the unfair dismissal which also raised issues of race discrimination, and finally as separate or stand-alone issues of discrimination.[12]Objection was taken to these amendments by Ms Russell who appeared on behalf of the employer then as she does today. The thrust of Ms Russell's objections was that the amendments raised new issues that were not pleaded in the originating application. The Employment Tribunal took the view that it was not prepared to rule on the matters raised as to the admissibility of the proposed amendments by way of a preliminary hearing but that it would give its ruling after hearing the evidence.[13]We note that the Tribunal recorded at paragraph 11 of the decision Mr Nesbitt's submissions. On the one hand the proposed amendments were background to show a course of conduct and prejudicial attitude towards Mr Zaidi so that appropriate inferences could be drawn in relation to the matters giving rise to the application. On the other hand, Mr Nesbitt also appeared to suggest that such background information showed there had been continuing discrimination within the meaning of section 68(7)(b) of the Race Relations Act.[14]In Paragraph 14, having considered the various points raised and in particular at what point in time it should rule on the amendments the Tribunal came to the conclusion that it would not be a proper exercise of its discretion to make a preliminary ruling on the time point as contended for by Ms Russell. It was made clear to the parties that at the end of the case the Tribunal would consider whether or not there was a continuing regime of discrimination. If there was not, it would consider whether the time should be extended in relation to any of the acts of which complaint was made. The Tribunal held that it was clear that the question of amendment "was inextricably linked with the time point" and it would therefore not have been a proper exercise of the Tribunals' discretion under the Rules of Procedure to make a ruling on day 2 of the hearing given that the unamended originating application raised the issue of continuing discrimination.[15]When the Tribunal came to give its Extended Reasons it rejected a number of amendments including those relating to unfair treatment by Mr Duckworth between August 1996 and January 1997, which Mr Zaidi decided not to pursue. One amendment related to an incident said to have taken place in January 1996. Mr Zaidi made unsuccessful application to do quality control and customer complaints work. The amendment sought to assert that the refusal of his application was discrimination on racial grounds. The Tribunal declined to allow this amendment as the employers would be severely prejudiced. Individuals who could give evidence to explain their actions were no longer with the employer and available documents would not enable a fair decision to be reached.[16]Another amendment was in relation to an allegation that in March 1998 Mr Zaidi was not appointed to the position of Part Team Leader. The Tribunal came to the conclusion that this allegation was again discrete and considerably out of time and that it would be difficult for the employers to defend in the absence of relevant witnesses and proper documentation. The Tribunal decided in all the circumstances of the case that it would not be just and equitable to extend time to deal with that allegation.[17]We have already noted that in relation to the claims flowing from his dismissal the Employment Tribunal took the view that the dismissal was neither unfair nor was there material to justify the finding of discrimination on the grounds of race. The persons who dealt with the matter on behalf of the employer Messrs Gardiner and Robbins had not been involved in previous incidents. It seems clear to us that the Employment Tribunal came to the conclusion on the evidence that there had not been any continuing act of discrimination against Mr Zaidi. However, the Employment Tribunal have not made a specific determination to this effect.[18]Nonetheless, the Employment Tribunal did allow an amendment in relation to discrimination on racial grounds and victimisation in relation to the matters that had taken place in the purported disciplinary proceedings. The Tribunal (and we quote from paragraph 16.9):
"decided the Respondent would not be prejudiced by being asked to provide an explanation since the circumstances under which that warning was issued, and subsequently rescinded, were well documented."
It has to be said that the way in which Mr Zaidi was treated on that occasion was inexcusable and the employer has not sought to justify the conduct of which Mr Zaidi complained. Accordingly it was submitted, a finding by the Tribunal that there was no prejudice to the employer in that regard is unexeptionable[19]Ms Russell submits, however, that the Tribunal did not demonstrably apply the correct approach. The thrust of her submission is that the Tribunal only considered questions of prejudice in deciding to permit the amendments to be made. She drew our attention to the way in which the case was originally pleaded. She drew our attention to the fact that there was some lack of clarity in the way the case was being put to the Tribunal by Mr Zaidi as to whether the application to amend in relation to the disciplinary process was one made in the original originating application or whether it was being made for the first time on the first day of the hearing.[20]She submitted, and we agree, that the allegations of discrimination and victimisation relating to these incidents were treated by the Employment Tribunal as "stand-alone" allegations and that even were one to take the date when the final warning was set aside, that is 27 January 1998, as being the date of the "act complained of" the three months period provided in the Act had long expired when the originating application was made on 29 January 1999. There were a number of factors that were submitted to the Employment Tribunal as being relevant to the decision as to whether or not to allow the amendment. These included the length of the delay, and the fact that it appears that a conscious decision had been taken by Mr Zaidi to take no action immediately, even after he had consulted solicitors, and even after his successful appeal in the internal disciplinary process. She submits that these were relevant matters to have been considered and it does not appear that the Employment Tribunal had regard to them at all.[21]Ms Russell drew our attention to the decision of the Employment Appeal Tribunal in the case of British Coal Corporation v Keeble [1997] IRLR 336 in which reference was made to an earlier decision of the Employment Appeal Tribunal in the same case. We expressed our gratitude to the Employment Appeal Tribunal staff who have made available for the parties and ourselves at very short notice copies, of the original and unreported decision of the Employment Appeal Tribunal presided over by Holland J whose judgment was delivered on 6 July 1995. The facts of the British Coal Corporation v Keeble case are complicated and are not in point. The Employment Appeal Tribunal had to consider applications to extend time in relation to claims of sex discrimination. We note that the language of section 68(6) of the Race Relations Act is replicated in the language of section 76(5) of the Sex Discrimination Act. The Employment Appeal Tribunal had this to say and we quote:
"We add observations with respect to the discretion that is yet to be exercised. Such requires findings of facts which must be based on evidence. The task of the Tribunal may be illuminated by perusal of section 33 of the Limitation Act 1980, wherein a check list is provided (specifically not exclusive) for the exercise of a not dissimilar discretion by common law courts which starts by inviting consideration of all the circumstance including the length of and reasons of the delay. Here is, we suggest a prompt as to the crucial findings of fact upon which the discretion is exercised."
The matter was remitted by the Employment Appeal Tribunal on 6 July to the Employment Tribunal. The issues were determined by the Employment Tribunal and came back on a further appeal to the Employment Appeal Tribunal. Smith J, who gave the judgment of the Employment Appeal Tribunal, (the case now being reported at 1997 IRLR 336 ) at paragraph 8 had this to say:
"The Employment Appeal Tribunal also advised the Industrial Tribunal should adopt as a checklist the factors mentioned in section 33 of the Limitation Act 1980. That section provides a broad discretion for the Court to extend the limitation period of three years in cases of personal injury and death. It requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular, inter alia to – (a) the length of and the reasons for the delay; (b) the extent to which the cogency of the evidence is likely to be affected by the delay; (c) the extent to which the party sued had cooporated with any requests for information; (d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action; (e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action The decision of the EAT was not appealed; nor has it been suggested to us that the guidance given in respect of the consideration of the factors mentioned in s.33 was erroneous."
[22]It is helpful at this point and time to refer specifically to section 66 (5) and (6) of the Race Relations Act which provide that:
"(5) A Tribunal should not consider a complaint under section 64 unless presented to the Tribunal before the end of a period of three months beginning when the act complained of was done." "(6) A court or Tribunal may nevertheless consider any such complaint or claim of 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."
Ms Russell submitted that the guidance given by the Employment Appeal Tribunal as to how a Tribunal should approach questions of extending time periods and the circumstances to which consideration should be given should be regarded as being of general application. It is right to say that the learned editors of Harvey on Industrial Relations and Employment Law are of that opinion – see paragraph T 279. Ms Russell also drew our attention to the decision of Hutchinson v Westwood Television [1977] ICR 279. The judgment of the Employment Appeal Tribunal then being given by Phillips J. Phillips J stated at page 282:
"The words "in all the circumstances of the case" refer, as we think, to the actual facts of the matter in so far as they are relevant to the matter under consideration in section 76(5). "
The case" does not refer, we think, to the entire complaint which, if time were extended, would have to be investigated. The words refer to the actual facts so far as relevant to the matter in hand." Ms Russell submitted that accordingly the Employment Tribunal should have paid regard to the facts relating to the application to extend time. Mr Nesbitt did not dispute this submission. The "circumstances of the case" relate to the particular circumstances in which the application was being made beyond the three-month time limit.[23]Mr Nesbitt also drew our attention to a further passage in the judgment of Phillips J:
"The second matter to which we would draw attention is that this is a new, or relatively new, statute. The formula provided by section 76(5) by which an application to extend time has to be judged is a new one, and it very sensibly gives the industrial tribunal a wide discretion to do what it thinks is just and equitable in the circumstances. Those are very wide words. They entitle the industrial tribunals to take into account anything which it judges to be relevant. We doubt whether industrial tribunals will get much assistance in exercising that jurisdiction by being referred to cases decided on other tests under other statutes. We do not go so far as to say that they are always and in all circumstances irrelevant, but we would deprecate these very simple, wide words becoming encrusted by the barnacles of authority. The industrial tribunal is to do what it thinks is fair in the circumstances. In that connection and going back for a moment to the first point, it is for the tribunal to say how far they think it is necessary to look at the circumstances of the matter complained of. No doubt they will want to know what it is all about; they may want to form some fairly rough idea as to whether it is a strong complaint or a weak complaint, and so on. Certainly it is not required at that stage to try the complaint. The third thing we have to say about section 76(5) is this. Because it is such a wide discretion conferred on the industrial tribunal, the task which an appellant has in such a case is a heavy one. Really he must show, if he is to succeed on appeal, that the industrial tribunal, demonstrably took a wrong approach to the matter, or that they took into account facts which they ought not to have done, or that they failed to take into account facts which they should have done, or as a last resort which is always open upon an appeal, that the decision was so unreasonable in all the circumstances no reasonably instructed tribunal could have reached it."
[24]Ms Russell submitted that in this case the Employment Tribunal took a demonstrably wrong approach. It failed to take into account matters it should have taken into account and as a last resort she submitted the decision was in effect perverse. Ms Russell submitted that the Tribunal should have taken into account, or at least given reasons for not taking into account, explanations for the length of delay, the promptness with which Mr Zaidi decided to proceed with the application to raise as a separate ground of complaint the disciplinary process to which we have referred, and the fact that he appears to have taken a conscious decision not to take action after apparently having taken legal advice. Ms Russell submits that the Employment Tribunal fell into error in determining the strength of the allegation and then having done so, made its determination to extend time.[25]We pause for one moment to say that in all the circumstances we do not consider that the Employment Tribunal was wrong in exercising its discretion to decide to hear evidence on the merits of the case generally as well as evidence, relating to the proposed amendments and then rule on admissibility later. This may not have been the decision, we would ourselves have taken, but was within the Tribunal's discretion. This is not a course that should be adopted in every case. We cannot say in the particular circumstances of this case that the Employment Tribunal was wrong in deciding to proceed as it did. Nevertheless we do consider that the fact that the Employment Tribunal heard evidence on the substance of the complaint and determined that Mr Zaidi had been badly treated may have blinded it to the need to consider the other circumstances which were relevant or may have been relevant to the application to amend.[26]It is unclear to us whether the Employment Tribunal treated the issue upon which it found for Mr Zaidi as an amendment that raised a new allegation, or whether it was the result of an act of continuing discrimination against Mr Zaidi raised in time but amplified by the amendment made out of time. The issue was raised; this is apparent from paragraph 11 of the Tribunal's decision, but it does not appear to have been conclusively determined. Our opinion is that the Employment Tribunal did consider the complaint to be discrete and rejected the allegations of continuing discrimination.[27]Our attention was drawn to the case of Selkent v Moore [1996] ICR 836 in which the decision of the Employment Appeal Tribunal was given by Mummery J and we quote from page 842:
"There is no express obligation in the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 requiring a tribunal (or the chairman of a tribunal) to seek or consider written or oral representations from each side before deciding whether to grant or refuse an application for leave to amend. It is, however, common ground that the discretion to grant leave is a judicial discretion to be exercised in a judicial manner, i.e., in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions. Consistently with those principles, a Chairman or a tribunal may exercise the discretion on an application for leave to amend in a number of ways. … Whenever the discretion to grant an amendment is invoked, the tribunal is to take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. … What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant."
Mummery J then makes reference to the nature of the amendment: The applicability of time limits and we quote:
"If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time, if so, whether the time limit should be extended under the applicable statutory provisions and also the timing and manner of the application."
[28]Mr Nesbitt submitted that we should have regard in considering the approach of the Employment Tribunal to the decision of this Tribunal in the case of Hawkins v Ball [1996] IRLR 258, a decision of Keene J paragraph 25, Keene J said this:
"We remind ourselves that we are not the tribunal at first instance deciding whether or not it is just and equitable to allow the claim to go forward out of time. Our jurisdiction is limited. The appellant today can only succeed if he can persuade us that that factor was an irrelevant one to the exercise of discretion by the tribunal or if he can persuade us that it was not a permissible option for them to reach the conclusion which they did. 26. We do not find the cases cited by the appellant of great assistance in determining this point. It is important to remember that the test in unfair dismissal cases is different from that which applied in the present case, which is a case under the Sex Discrimination Act. The basis for extending time for complaints under the Sex Discrimination Act is wider than that under the Employment Protection (Consolidation) Act 1978, s.67(2). In the latter, the tribunal has to be satisfied that it was not reasonably practicable for the complaint to be presented before the end of the three-month period. Under the Sex Discrimination Act 1975, s76(5) set out earlier, the tribunal may consider an out of time complaint if, in all the circumstances, it considers it just and equitable to do so. We regard that as presenting the tribunal with a broader discretion than exists in unfair dismissal cases."
[29]Having referred to a number of cases and the Hutchison case to which we have referred Keene J said:
"27. We are bound to say that in the same way we do not find the authority cited by Miss Heal on the Limitation Act 1980 gives us much guidance. She sought to rely in particular upon the decision in Hartley v Birmingham City District Council [1992] 2 All ER 210. That case concerned an application to extend time in a personal injuries case. Keene J continued: "
It is to be noted there is a specific provision in s.33(1)(f) of the Limitation Act 1980 which makes it clear that Parliament's intention was that the seeking and obtaining of legal advice has to be seen as relevant to the decision about whether allowing the action to proceed out of time would be equitable or not. Since Parliament regarded that as requiring an express reference in s.33, it does not seem to us that decisions made on the interpretation of the word 'equitable' in that legislation are of a great deal of assistance when we are dealing with the Sex Discrimination Act of 1975." Hawkins v Hall does not appear to have been considered by the Employment Appeal Tribunal in the case of British Coal Corporation v Keeble .[30]We also take into account Mr Nesbitt's submissions that section 33 of the Limitation Act 1980 does pick out prejudice as a principal point of concern when considering applications to extend time. We have also been referred to the case of Mills v The Crown Prosecution Service [1998] IRLR 494 as to the general nature of the discretion and to the case of Harmitage v Prisons Service [1997] IRLR 162 which we found of little assistance. Similarly, we did not derive any assistance from the case of Foster v South Glamorgan Health Authority [1998] ICR 526 cited to us by Ms Russell.[31]Mr Nesbitt submitted that the Tribunal were aware of the fact that Mr Zaidi needed to persuade them to extend time under Section 68(6) and he refers in this regard to paragraph 5(b) of the decision. The Tribunal was referred to the case of British Coal Corporation v Hutchison although it did not refer to it in its reasons. The Tribunal (he submitted) dealt with the history of the matter and rejected a number of his amendments on various grounds. The Tribunal clearly had in mind, he submitted, the requirement that an amendment should be allowed if it was just and equitable to do so. He drew attention to paragraphs 16.8 and 16.12 of the decision and says that the Tribunal did consider all matters and came to the conclusion that the critical question, the most important question for them, was that of prejudice. He submitted that if the submission made by Ms Russell in relation to the amendment was good then the decision to reject other amendments – [see paragraphs 16.8 and 16.12] was similarly flawed.[32]Mr Nesbitt submitted that Employment Tribunals do not have to give the most detailed reasons and there is nothing wrong with the approach adopted. While they should explain their decision, they do not have to go into the greatest detail. That of course is something with which we would agree. He submitted that the effect of the decision in British Coal Corporation v Keeble was no more than useful guidance in the particular circumstances of that case. It is not to be treated, he submitted as laying down a rule of general application. It was not intended to be treated as a checklist in every case and he submitted that the comments in Harvey 's Industrial Relations went beyond what the case decided. His submissions were in effect that the guidance was limited to that case, and was not of general application. He drew attention to the need to avoid the "barnacles of authority" referred to in Hutchison. He drew support from the decision in Hawkins v Ball and submitted that it would be wrong for the Employment Appeal Tribunal effectively to add limbs to a statute which did not contain them. Adoption of these dicta as general guidance would serve only to fetter the discretion of Employment Tribunals and cut down upon the very broad discretion that is open to them.[33]The conclusion that we have come to is that while the guidance given in the case of British Coal Corporation v Keeble should not be regarded as statutory guidance and that it would be wrong in any way to seek to cut down the broad and wide discretion given to Tribunals to consider all the circumstances and reach decisions which are just and equitable, the approach of the Employment Appeal Tribunal in that case is sensible guidance to Employment Tribunals. The guidance requires Employment Tribunals to concentrate and focus on all the circumstances of the case, a number of which do require specific consideration. These include the length of delay, the reasons for the delay and whether those reasons are good.[34]It also has to be said that there is a growing recognition of the importance of parties adhering to time limits both in proceedings in Court and before Employment Tribunals. While failure to comply with time limits without good reason is not necessarily of itself a reason to refuse to extend time, in our view this Employment Tribunal has apparently failed to have regard to the delay, the reasons for delay and the fact that there appears to have been a conscious decision by Mr Zaidi to take no action despite having received legal advice. It may well be (we do not know) that Mr Zaidi was and will be in a position to provide a satisfactory explanation for the delay, which will enable an Employment Tribunal to exercise discretion in his favour.[35]However, having read very carefully the decision of the Employment Tribunal on several occasions we can find no evidence that it considered these matters to be relevant, even less do we know what conclusions it came to upon them. It seems to us that the Employment Tribunal was in error, as a matter of law, in concentrating on the question of prejudice alone. Accordingly we have come to the conclusion that the appropriate course is for this matter to be remitted to be heard by another Employment Tribunal.