MR W FATTI v (1) LOOK AHEAD HOUSING & CARE LTD (2) MS R KARN (3) MS E JACKSON [2001] UKEAT 0857_01_3010

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0857_01_3010Case No Appeal No. EAT/0857/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR W FATTIAPPELLANT(1) LOOK AHEAD HOUSING & CARE LTD (2) MS R KARN (3) MS E JACKSONRESPONDENT
Before
His Honour Judge J R ReidDate 30 October 2001
[1]APPEARANCES For the Appellant MR M MCDONOUGH (Representative) Messrs McDonough & Associates Employment Law Associates Linburn House 342 Kilburn High Road London NW6 2QJ HIS HONOUR JUDGE J R REID QC This is the Preliminary Ex Parte Hearing of an appeal by Mr Fatti against a decision of the Employment Tribunal held at London Central on 21 and 23 May 2001. The decision was sent to the parties on 7 June 2001. By that decision the Tribunal unanimously held that the Applicant's complaints prior to 10 January 2000, which were paragraphs 3-10 of his Originating Application, were out of time under Section 68 of the Race Relations Act 1976 and that there was no jurisdiction for the Tribunal to consider the complaints against the first, second and third Respondents. The Tribunal then went on to hold that the complaint of racial discrimination in relation to his grievance procedure, which were paragraphs 11 and 12 of the Originating Application, failed.[2]The Appellant now asks for leave to appeal on two grounds. The first is that the Tribunal should have extended time for his complaints prior to 10 January 2000 under Section 68(4) of the Race Relations Act . The second is that the Tribunal were simply wrong in relation to the dismissal of the claim relating to his grievance procedure because, it is said, the Tribunal wrongly looked for comparators when it should not have done so.[3]So far as the first of those points go, The Tribunal said that there was no evidence as to the reason for delay. It is argued before us (see paragraph 41 of the decision) that there was in fact evidence as to the reason for delay. Firstly, there was the letter at page 47 of our bundle by which Mr Fatti made his complaint. He said:
"I made an internal grievance on the 31/01/00 against Rachel and Elaine [that was the manager and deputy manager of Look Ahead Housing and Care Ltd by whom he was employed] and the report of the investigating panel is a continuation of the discrimination against me. Through out the investigation, no single witness was interviewed and Elaine Jackson was not investigated. This therefore leave me with no alternative but to bring my case to the Industrial Tribunal."
The internal grievance to which he referred was dealt with by a report issued on 17 March. It was therefore within three months that he made his complaint. The other piece of evidence relating to the reason for delay was contained in the last two paragraphs of paragraph 12 of his ET1 which were in these terms:
"Due to the Association's attitude as shown in this investigation and the conclusion of the disciplinary hearing, I have lost confidence in my employer's ability to address these issues competently or sincerely in accordance with the Policies they themselves have laid down. It is on these grounds that I have no other alternative but to bring my case to the Industrial Tribunal. In all my efforts to pursue my complaint through the internal grievance procedures of the Association, have met with cover ups on the grounds that the Association is still institutionally racist."
[4]It is said that, given that evidence which the Tribunal appears to have overlooked, they should have extended time pursuant to Section 68(4) because it is entirely reasonable for an employee to wait until an internal disciplinary procedure has been completed before turning to an Employment Tribunal. The authority to which reference was made indirectly in the Skeleton Argument in support of that proposition was Aniagwu v London Borough of Hackney and Another [1999] IRLR 303 . It appears to us that the issue as to whether the Tribunal erred in law in failing to extend time is one which is capable of serious argument and that that point should go to a Full Hearing.[5]So far as the second point is concerned, it seems to us that the point is not one of substance and should not go to a Full Hearing. The complaint in this regard was that the grievance procedure was inherently discriminatory, or that the conduct of the particular grievance procedure was discriminatory. In relation to that the Tribunal made findings. They concluded at paragraphs 57 and 58 of the reasons:
"57 Mr Fatti has put forward no evidence in relation to other grievance proceedings for other white members of staff and there is nothing in the evidence to suggest that had Mr Fatti been white the grievance would have been handled differently. 58 Having taken these matters into consideration it is the unanimous decision of the Tribunal that there is no evidence from which the Tribunal can draw an inference of racial discrimination and it is the unanimous decision of the Tribunal that Mr Fatti's complains of racial discrimination fail."
That decision appears to us to be unimpeachable. The question was not whether the matters underlying the grievance complaint were acts of discrimination, but whether the grievance procedure itself, either in the way in which it was conducted or in its substance and procedure, was necessarily discriminatory.[6]The Tribunal were right to look to see whether a person, a comparator, would have been dealt with in the same way and to see that Mr Fatti had produced no comparator. The mere fact that he was a black person complaining about the conduct of white persons and that his complaint is rejected does not mean that there no need to produce comparators. The issue is whether the procedure as set up and as carried through was discriminatory because, had Mr Fatti been a white complainant the procedure would have been conducted differently, or would on similar sorts of facts, have produced different results. In this the Tribunal was in our view entirely correct when they rejected the complaints and therefore the leave goes only to the first two points, though I anticipate that if successful on the substantive hearing that will enable Mr Fatti to have a Tribunal deal with all the matters of complaint which he really wishes to have disposed of. Sir, can I just ask - do I have leave to argue the comparative points, assuming I can go with the time point? No, you do not. The only point you can argue is time limits, so that when you go back you are left with the substantive complaints, you cannot have an additional complaint saying the grievance procedure itself was wrong. No sir, I understand about the rejection of the grievance procedure but what points of appeal is it that……….. the Tribunal went on to find that, even if we were wrong about the time……. You can raise whatever points you wish to in relation to that, on the basis that in effect the Tribunal was simply dealing with the matter obiter, you can make what you will of other matters. It may be that you will fail because the Appeal Tribunal will say, even it went back for re-hearing on an extension, you would still lose, but that is a matter for the Full Hearing. That's what I'm saying sir – am I still entitled to argue that, if it went back….. You can argue that it should go back and you can argue about what should go back, other than the grievance procedure point. I think this should be Category B. Mr McDonough is half a day going to be enough? I think so sir. Then half a day.