MR M LUCEY v (1) E C SAMES & CO LTD (2) NATIONAL WESTMINSTER BANK PLC [2001] UKEAT 0965_00_1412

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0965_00_1412Case No Appeal No. EAT/0965/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M LUCEYAPPELLANT(1) E C SAMES & CO LTD (2) NATIONAL WESTMINSTER BANK PLCRESPONDENT
Before
His Honour Judge Peter Clark Miss C Holroyd Ms S R CorbyDate 14 December 2001
[1]APPEARANCES For the Appellant MR HUTCHINSON (of Counsel) Messrs Costertons Solicitors Manor Chambers 44 Throwley Way Sutton Surrey SM1 4AQ For the Respondents T J ARCHER (Solicitor) Richards Butler Beaufort House 15 St Botolph Street London EC3A 7EE HIS HONOUR JUDGE PETER CLARK This is an appeal by Mr Lucey, the Applicant, before an Employment Tribunal sitting at London North, now Central, chaired by Mrs E M Prevezer on 19 June 2000, against that Tribunal's decision, promulgated with Extended Reasons on 22 June 2000, that his complaint of unlawful racial discrimination against(1) E C Sames & Co Ltd (Sames) and(2) National Westminster Bank PLC (Nat West) was time-barred.[2]The appeal, now against Nat West only, litigation with Sames having been compromised, was allowed to proceed at a Preliminary Hearing held on 20 October 2000 before a division presided over by Mr Justice Charles on two specified grounds. They are, logically;(1) whether the Appellant's Originating Application was presented within the ordinary three month time limit, and(2) if not, whether the Tribunal gave adequate reasons for their conclusion that it was not just and equitable to extend time. Race Relations Act 1976 Section 68(6). A further ground of appeal, that there was here a continuing act of discrimination within the meaning of Section 68(7)(b) of the Act was dismissed at the Preliminary Hearing.[3]The Facts The Appellant, who is of Irish national origin, commenced employment with Sames on 21 May 1991. Pursuant to a contract entered into between Sames and Nat West the Appellant's services were provided by Sames to Nat West and he worked at Nat West's site at Fenchurch Exchange. His duties included driving work.[4]In October 1999 a theft of carpet tiles took place at the Nat West site. It seems that the thief, who was employed by neither Sames or Nat West, loaded the tiles into a Sames van driven by the Appellant and he removed the tiles from the site. On the Appellant's account contained in his Originating Application, the thief told him that they were personal items and the Appellant drove them to the thief's home where he helped unload boxes containing the tiles. It was his case that he was unaware of the contents of the boxes, or that they were stolen.[5]Having learnt of the theft Nat West reviewed local video tape evidence which revealed the presence of a Sames van and someone who appeared to be the Appellant moving backwards and forwards from the area where the tiles were stored to the van. As a result, on 28 October 1999 Nat West requested Sames to remove the Appellant from their site. That request was confirmed in writing on 2 November.[6]On 2 November the Appellant was called to a disciplinary hearing by Sames. He denied the allegation that he had been in any way dishonest. In these circumstances Sames wrote to the Appellant on 5 November telling him that under no circumstances would he be returning to his old site and that he should report for work at a different, non-Nat West site, at Evelyn House, London W1. He did not wish to take that work and on 8 November went on sick leave, not to return to work before the Tribunal hearing on 19 June 2000. Sames pursued the matter with Nat West who maintained their refusal to allow the Appellant on site. He was never again assigned to that or any Nat West site by Sames.[7]The Appellant then consulted the Southern Racial Equality Council whose Director, Mr Rose, wrote to Sames on 15 November, enquiring what evidence of theft Nat West had against the Appellant. On 17 November, according to the Appellant's Originating Application, Nat West were informed by the employer of the thief that he had confessed to theft of the tiles and asserted that had acted alone. The thief was dismissed by his employer.[8]A Section 65 Questionnaire was prepared on behalf of the Appellant and served on Nat West, which responded on 25 February 2000. Before the Tribunal, Mr Rose submitted that until that time there was insufficient evidence on which to bring a claim. The Originating Application was finally presented to the Tribunal on 3 April 2000.[9]The Tribunal Decision The first question which the Tribunal had to determine was when time began to run for the purposes of Section 68(1) of the Act. They found that the act complained of occurred in October/November 1999, particularly on 8 November when the Appellant was suspended and offered alternative employment at Evelyn House. They held that since the Appellant had been absent through sickness since 8 November 1999 no acts of discrimination had occurred since that date. Thus, his Originating Application was presented outside the ordinary three month time limit on 3 April 2000.[10]Secondly, the question of an extension of time on the just and equitable principle – Section 68(6) of the Act. The Tribunal held that even if they accepted Mr Rose's argument that he was not satisfied that there was sufficient evidence to bring a claim until February 2000, there was a further delay until 3 April 2000. In these circumstances they declined to extend time. The complaint was dismissed against both Respondents. As we indicated earlier, we are only concerned with the claim against Nat West in this appeal.[11]The Appeal Was the claim presented within time? Mr Hutchinson, on behalf of the Appellant, submits that the last act of discrimination, bringing the complaint within time, was a letter from Liz Sinclair of Nat West to Mr Rose dated 10 March 2000. In that letter she refers to a telephone conversation between them on 1 March in which Mr Rose, having considered the bank's responses to the Section 65 Questionnaire, suggested a pragmatic solution would be to allow the Appellant to return to the bank's Fenchurch Exchange site. Ms Sinclair indicated in her letter that the bank were not prepared to allow the Appellant to return to work on Nat West sites, claiming that he had not revealed all the details of the incident when initially called upon to do so; that other employees and contractors had to be considered; that as a financial institution, Nat West placed great reliance on the trust and confidence built up with staff and contractors. They denied any unlawful discrimination in their treatment of the Appellant.[12]Was that letter a further act of discrimination? The question is whether that letter resulted from a fresh consideration of the matter as opposed to a mere reference back to an earlier decision. If the former, each decision may amount to a fresh act of discrimination - see Cast v Croydon College [1998] ICR 500 (CA). The Tribunal do not appear to have addressed this question in their reasons. They do not refer to the letter of 10 March at all. What they say is that the Appellant had been absent through sickness and therefore no acts of discrimination had occurred since 8 November 1999.[13]In these circumstances we have considered whether we should allow the appeal on this point and remit the matter to a fresh Employment Tribunal for a factual determination of the status of 10 March letter. However, we should first pause to consider the nature of the claim brought by the Appellant against Nat West. He was not employed by Nat West, even under the extended definition of that expression contained in Section 78(1) of the Act. There was no contract between the Appellant and Nat West. Instead, he brought this part of his claim as a contract worker within the meaning of Section 7 of the Act. Section 7(1) provides:
"(1) This section applies to any work for a person ("the principal") which is available for doing by individuals ("contract workers") who are employed not by the principal himself but by another person, who supplies them under a contract made with the principal."
Section 7(2) provides, so far as is material:
"It is unlawful for the principal, in relation to work to which this section applies, to discriminate against a contract worker – …… (b) by not allowing him to do it or continue to do it …."
[14]In the case of employees it remains the position, on binding Court of Appeal authority, that protection under the Act ceases when the employment ceases. Thus a complaint of racial discrimination at an internal appeal hearing following dismissal is not covered – see Post Office v Adekeye (No 2) [1997] ICR 110; that case has been followed and applied in the sex discrimination case of Rhys-Harper v Relaxian Group PLC [2001] IRLR 460 , both of which were followed by the Court in D'Souza v London Borough of Lambeth (CA/2000/2600 25 May 2001 Unreported)[15]What then is the position in the case of a contract worker? We have invited submissions from the parties advocates on this question. It seems to us that where an employer, here Sames, supplies a contract worker, the Appellant, to the principal, Nat West, the refusal by the principal to permit the Appellant to continue with the work gives rise to a potential claim of unlawful discrimination. However, once the worker has been barred by the principal and the employer makes no further attempt to supply that worker under the contract made with the principal, but instead assigns him to other duties as an alternative to terminating his employment, the protection provided by Section 7 ceases. It follows, in our judgment, that after 8 November 1999 the Appellant had no further Section 7 protection and the letter of 10 March could not amount to a fresh act of discrimination covered by the Act.[16]In these circumstances we can see no purpose in remitting the case on the question of the status of 10 March letter when it does not give rise to a fresh cause of action for the purposes of Section 7 of the Act. The Tribunal was entitled to find in these circumstances that the last potential act of protected discrimination for the purposes of the Appellant's complaint against Nat West occurred no later than 8 November 1999. The Originating Application presented on 3 April 2000 was accordingly out of time.[17]We turn then to what is described by Mr Hutchinson as the 'Meek' point. Did the Tribunal give adequate reasons for their decision not to exercise their discretion in favour of extending time under Section 68(6) of the Act? Mr Hutchinson has referred to the various factors which may come into play where a Tribunal is considering the exercise of its discretion under Section 68(6) – see British Coal Corporation v Keeble [1997] IRLR 333. However, we do not understand him to suggest that those factors represent a check list, to be followed by Tribunals in every case. Rather, we bear in mind the wide discretion afforded to Tribunals, as explained by Mr Justice Phillips in Hutchison v Westward Television Ltd [1977] IRLS 69.[18]It seems to us that the Tribunal's reasoning is clear. Even allowing for Mr Rose's contention that it was not until he received Nat West's response to the Section 65 Questionnaire in late February 2000 that he could form a view as to whether there was sufficient evidence to mount a claim, nevertheless there was further delay until 3 April before the IT1 was presented.[19]Parliament has decided that time limits are short deliberately in order to ensure that employment cases are dealt with speedily. There really was no acceptable excuse for the delay in this case, so the Tribunal thought. In these circumstances they were entitled to exercise their discretion in the way that they did and gave, in our judgment, adequate reasons for that part of their decision. Accordingly, this appeal is dismissed.