MR S WANDOU v LONDON BOROUGH OF HACKNEY [2001] UKEAT 1166_99_0903

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1166_99_0903

Case No Appeal No. EAT/1166/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR S WANDOUAPPELLANT

LONDON BOROUGH OF HACKNEYRESPONDENT

Before

Mr Justice Hooper Mr J Hougham

Date 9 March 2001

[1]APPEARANCES For the Appellant IN PERSON For the Respondent MR S HEATH (of Counsel) Instructed By: Ms D Holmes Head of Legal Services Trading Unit London Borough of Hackney 183-187 Stoke Newington High Street London N16 OLH MR JUSTICE HOOPER : This is an appeal brought by Mr Wandou, in person, against the unanimous decision of an Employment Tribunal on a preliminary point, namely, that the appellant's claim of race discrimination is out of time and should be struck out. The Tribunal ordered that the appellant's claim for unfair dismissal should proceed. We are told that shortly after that hearing, the Tribunal found that there had been procedural irregularities in the manner in which Mr Wandou was dismissed but, given the circumstances of his dismissal, no compensation was ordered under what is known as the Polkey principle.

[2]The appellant was suspended as a teacher on 30 October 1995. It was alleged that he had submitted a fraudulent claim to Watford Council for a housing improvement grant. He was charged with obtaining property by deception and, as we understand it, was subsequently convicted in the criminal courts.

[3]In May 1996, a dismissal hearing was held and the appellant was dismissed for what was described as gross misconduct.

[4]We are today concerned with a much narrower issue. In his IT1, the appellant concentrated on the allegation of unfair dismissal. At the end of his particular claim he added:- "I must also say that prior to my suspension in 1995 I had made complaints against the management regarding racial discrimination which I had been suffering and also lay behind the treatment I received. In all the circumstances I consider I was unfairly dismissed and a victim of racial discrimination." It will be noted that in that paragraph, the appellant is referring to a period prior to his suspension in October 1995.

[5]The IT1 was presented on 20 April 1996. In reply to a request for further particulars made by the respondent, Mr Taggart, of the Free Representation Unit, answered the request:- "If direct discrimination is alleged please(a) identify the discriminator

(b) the discriminating acts

(c) ways in which Mr Wandou alleges he has been unfavourably treated." in the following way:- "Answer. From 28 October 1994 the Respondent conducted an investigation into the Appellant which included making enquiries into properties with which he was connected …. As a result of these allegations the Respondent dismissed the Appellant from his employment and he was subjected to a criminal investigation that resulted in prosecution. It is alleged that this treatment was unlawful because the investigation itself was instigated because of the Applicant's ethnic origins and would not have occurred if he had been, say, a white employee or had a "British" surname. Therefore it is alleged the (sic) Applicant was directly discriminated against and has thereby been subjected to considerable detriment." At a Directions Hearing before the Tribunal on 20 January 1999 the Chairman noted that the appellant had not particularised any specific acts of race discrimination and as his IT1 was submitted on 19 July 1996 any acts that occurred before March 1996 would be outside the time limits laid down in the Race Relations Act 1976."

[6]Section 68(1) of that Act provides that an Employment Tribunal shall not consider a complaint unless it is presented to the Tribunal before the end of the period of three months beginning when the act complained of was done. Section 68(7)(b) provides that any act extending over a period shall be treated as done at the end of that period (so-called continuous discrimination).

[7]There being before the Tribunal only the contents of the IT1 to which we have referred and the particulars given, it is understandable that Mr Heath submitted that the claims of race discrimination were out of time, in that they related to acts and events which occurred prior to the three-month period immediately preceding the date of presentation of the originating application, namely, 20 April 1996.

[8]Mr Wandou, as the Chairman points out in paragraph 5 of his decision, submitted that the alleged race discrimination was a continuing act or acts and that after his suspension in September 1995 he complained of race discrimination. Paragraph 5 continues:

"The Tribunal invited Mr Wandou to produce any documentary evidence of such a complaint but although he was given ample time, including a 15 minute break, to search through his documents, he could not produce any document which satisfied the Tribunal that an allegation of race discrimination had been made contemporaneously with his suspension. There is a reference to the fact that Mr Wandou made contact with the Race Equality Officer but nothing resulted from that contact and no allegation of race discrimination was made against the Respondents. It is true that at the disciplinary hearing Mr Wandou briefly mentions racism on the part of Mr Ken Ostler and that he was having trouble with his line manager, Mrs Braham. That, in our view, is not sufficient to amount to a continuous act or acts which would satisfy the requirements of Section 68(7)(b) of the Race Relations Act 1976. Having considered the contents of Mr Wandou's statement, the pleadings on the grounds of resistance, we conclude that the allegations of race discrimination all relate to events which occurred well before the three month period and they are such that it would not in our consideration be just and equitable having regard to all the circumstances of the case to extend the time to allow those claims to proceed."

[9]We asked Mr Wandou to produce any documentary evidence to support the claim that there was an act of discrimination during the relevant three months or a continuing act of discrimination within that three months. We looked at a few documents provided by Mr Wandou but in our judgment none of them fell within that category. Within our bundle there are letters on pages 18 (a), (b), and (c) which apparently, although not mentioned during the course of argument, Mr Wandou wanted us to take into account. Again we do not see that those letters assist in resolving the question that we have to resolve.

[10]The Tribunal not having made any error of law, the only issue for this Tribunal is whether or not the decision reached by the Tribunal was perverse. Faced with a pleaded case of complaints made of discrimination prior to October 1995, faced with a further particularised act relating to the commencement of the investigations in October 1994 and not being further helped by Mr Wandou when his help was sought, we take the view that the decision of the Tribunal was not perverse. It seems to us to be the only decision which the Tribunal could properly have reached and in those circumstances this appeal fails.