MR S AL DOSARI v MIDDLE EAST BROADCASTING CENTRE LTD [2001] UKEAT 249_00_2404

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 249_00_2404Case No Appeal No. EAT/249/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S AL DOSARIAPPELLANTMIDDLE EAST BROADCASTING CENTRE LTDRESPONDENT
Before
Her Honour Judge A WakefieldLord Davies of CoityDate 24 April 2001
[1]APPEARANCES For the Appellant MR BEN ELKINGTON (of Counsel) Instructed by: Messrs Archon Solicitors Sun Court 66 Cornhill London EC3V 3NB For the Respondent MS SARAH MOOR (of Counsel) Instructed by: Messrs Barlow Lyde & Gilbert Solicitors Beaufort House 15 St Botolph Street London EC3A 7NJ JUDGE A WAKEFIELD This is an appeal and cross-appeal from a Decision of London South Employment Tribunal promulgated on 30 September 1999.[2]The Appellant [Applicant] appeals against the refusal of the Tribunal to hear his complaint of unfair dismissal, the Decision having been given on the basis that the Originating Application had not been presented within the three month time limit.[3]The evidence before the Employment Tribunal and the basis of their Decision were very fully set out in the Decision itself. In essence the issue was this: the Applicant alleged that the Originating Application had been faxed on 3 November 1998, but there was no fax header sheet and no record of receipt of the application at the Tribunal.[4]The Applicant further alleged that the document had been sent that same day by Recorded Delivery, but the Recorded Delivery docket was unstamped by the Post Office and no record of receipt by the Employment Tribunal was obtained from the Post Office. The Tribunal therefore concluded that the document was never presented within the three month time period.[5]The Tribunal said in paragraph 16 of the Decision:
"The Tribunal finds that it is more probable than not that there was a failure on behalf of those representing Mr Al-Dosari on 3 rd November 1998 to present his Originating Application to the Tribunal."
We consider that the Employment Tribunal correctly took into account every point and were entitled to come to the decision that they did. The appeal is therefore dismissed.[6]As to the cross-appeal, it concerns the exercise by the Employment Tribunal of its discretion to allow the application relating to racial discrimination to go ahead, notwithstanding that the presentation of that complaint was out of time.[7]It is very seldom that this Appeal Tribunal will interfere with the exercise of such a discretion: in our view this is certainly not such a case. Paragraph 26 of the Tribunal's Decision sets out the reasons for the decision. It states:
"The conclusions of the Tribunal were as follows. The Respondent was informed by the letter of 20 th November that the Applicant had brought a complaint to the Tribunal. It was therefore put on notice that the dismissal was challenged, although it was not put on notice either of the details of the complaint or that it was a complaint of discrimination, or indeed that it was a complaint of discrimination stretching back for some two years prior to the dismissal. However, the fact that the dismissal was being challenged before a Tribunal, coupled with the explanation for the delay between November and May, in respect of which Mr Al-Dosari is completely innocent, persuaded the Tribunal that it is just and equitable that his complaint of the dismissal as an act of discrimination should be considered on its merits."
The Employment Tribunal correctly, in our view, identified the relevant factors and exercised its discretion in a way which was quite proper in all the circumstances.[8]We reject Counsel for the Respondent's argument that to allow the application to proceed would be unduly prejudicial to the Respondent. The cross-appeal is also therefore dismissed. Permission to appeal is refused.