MRS WINNIE SIBANDA v (1)BARNET COMMUNITY HEALTHCARE NHS TRUST (2)JEFF TAN (3) EMILY NEWMAN [2001] UKEAT 496_01_1309

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 496_01_1309Case No Appeal No. EAT/496/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS WINNIE SIBANDAAPPELLANT(1)BARNET COMMUNITY HEALTHCARE NHS TRUST (2)JEFF TAN (3) EMILY NEWMANRESPONDENT
Before
Mr Recorder UnderhillDate 13 September 2001
[1]APPEARANCES For the Appellant MR MARC JONES (Solicitor) Instructed By: Messrs Underwoods Solicitors 83/85 Marlowes Hemel Hempstead Hertfordshire HP1 1LF MR RECORDER UNDERHILL QC: This is the preliminary hearing of an appeal against the decision of an Employment Tribunal in Watford dismissing the Appellant's claims for sex and race discrimination on the grounds that they were out of time. The original Tribunal bundle did not include all the relevant material, but we have been supplied with various further documents.[2]The Appellant, who is black, was at all material times employed by the First Respondent as a senior nurse at Napsbury Hospital. Her claims arise out of an incident on 29 February 2000 in which she was allegedly assaulted by a fellow-employee, the Second Respondent (who is Malaysian). The Third Respondent is the manager responsible for handling the complaint which the Appellant subsequently made.[3]The Appellant presented two IT1 forms. The first was presented on 8 June 2000. Her claim is identified in box 1 as "Physical and racial abuse during working time – management suppressing the case – ignoring case". It is dated as signed on 7 May 2000, but the Appellant subsequently explained that that was an error. It is to be inferred, though she does not expressly say, that the error consisted in giving the wrong month and that it was in fact signed on 7 June, that is the day before it was presented. The second IT1 was presented to the Tribunal on 12 June 2000. It is dated as signed on 8 May 2000: the same comment applies, and it seems that it was signed on 8 June: it was presented on 12 June. This complaint is described in box 1 as being for "Racial equality and sexual harassment". The details of the complaint in box 11, which are reasonably full, are in almost, though not entirely, identical terms as between the two applications. The Appellant subsequently explained that the reason why she brought two separate applications was that after she had completed the first she received advice from the Commission for Racial Equality about the applicable time limits and was advised to draw to the attention of the Tribunal that she was unaware of those time limits: that was what she was seeking to do on the second form. That would explain the only significant difference between the two forms, namely that at the end of box 11 in the second form she adds "I was not aware of time limit on reporting this – but please help me!". In these circumstances very little turns on the fact that there are two applications in this case and they have, for all practical purposes, been treated as consolidated. However, as will appear, the fact that the second application was presented on 12 June enabled the Appellant to bring within the scope of her claim an incident occurring on 8 June: we will return to this.[4]The case came before an Employment Tribunal for directions on 16 August 2000. Both parties were represented by solicitors - in the Appellant's case by Mr Jones, who appears for her today. The Tribunal noted at the end of its directions:
"By way of clarification Mr Jones confirmed that the complaint against Jeff Tan of sex and race discrimination related to an incident on 29 February 2000 and the claim against Emily Newman was a claim of sex and race discrimination involving events on two dates when an investigation was carried out concerning an alleged incident on 29 February 2000 those dates being 6 March and 8 June. The third claim against the first respondent is one of vicarious liability ."
[5]That note was subsequently confirmed by further and better particulars. We do not have the precise date that these were served, but they were served pursuant to an order made at the hearing on 16 August and it seems likely that they were served in September or October 2000. These identify the complaint against the Second Respondent as relating to the incident on 29 February. In relation to the complaint against the Third Respondent they are as follows:
"The Applicant complains that on 6 March 2000, Emily Newman gave specific instructions to Meg Hardie to conclude that the Second Respondent did not wilfully assault the Applicant on 29 February 2000, albeit the Applicant maintains that she was not informed of this on 6 March 2000. The Applicant further complains that the investigation, if indeed one was carried out, on or around 6 March 2000 or on or around 8 June 2000 into the above assault, was determined by the Third Respondent i.e. that the Second Respondent did not intend to cause the Applicant harm as he merely tapped her on the back with his right hand."
It has been confirmed to us by Mr Jones that what is being complained of in that last paragraph is in effect the dismissal or rejection of the Appellant's complaint against Mr Tan.[6]It follows that there were three acts of discrimination complained of:(1) the original incident on 29 February;(2) the instruction allegedly given on 6 March; and(3) the rejection of the Appellant's complaint, occurring on either 6 March or 8 June. Save in relation to the act complained of on 8 June, those claims were clearly prima facie out of time and the Tribunal ordered, as direction (5), that: "The issue of whether the complaint against the second respondent and the complaint against the third respondent relating to the events of 6 March 2000 have been presented to the Tribunal are out of time shall be determined at a Preliminary Hearing on 13 October 2000".[7]In the event the preliminary hearing did not occur until 13 February 2001. The Extended Reasons were sent to the parties on 13 March 2001. The Tribunal's decision is recorded as being "That the Applicant's claims against the Respondents for sexual and racial discrimination are dismissed because they were made out of time". The argument before the Tribunal proceeded entirely on the basis that the only issue was whether it was just and equitable to extend time. The relevant paragraphs of the Tribunal's Reasons are at paragraphs 4 to 6, which are in the following terms:
"4 The Law In deciding whether it was just and equitable to extend the time limit we considered the prejudice each party would suffer. We had regard to all the circumstances of the case and, in particular to: (a) The length of and reasons for the delay; (b) the extent which the cogency of the evidence is affected by the delay; (c) the extent to which the Respondents co-operated in requests for information; (d) the promptness in which the Applicant acted once she knew of the facts giving rise to the cause of action; and (e) the steps taken by her to obtain appropriate professional advice once she knew the possibility of taking action 5 Conclusions We came to the following conclusions: (a) We determined that the Applicant knew more than she initially indicated in her testimony. In particular, in answer to questions from the Chairman, she explained about her report to the police and her contact with Solicitors in St Albans although initially she had implied that she did not understand about reporting assaults to the police or making personal injury claims. (b) From all the circumstances we are satisfied that she must have had some knowledge of making a claim for discrimination. (c) Even when she made her first Employment Tribunal claim she did not allege any act of discrimination. We therefore conclude that this was not a claim even then of discrimination in her own eyes in relation to the incident of 29 February 2000. (d) She pursued all professional avenues, namely, the police, solicitors, her trade union and the Citizens Advice Bureau. Notwithstanding contact with all these professional bodies, at no time was she given advice that she should make a race and/or sex discrimination claim. 6 In all the circumstances we did not consider it just and equitable to allow her to make her claim out of time. Accordingly, the Applicant's claim against the Respondents is dismissed."
[8]The Appellant's grounds of appeal are set out in paragraphs 4 and 5 of the Notice of Appeal and are to some extent amplified in Mr Jones' skeleton argument. We take them in turn.[9]Paragraph 4 of the grounds of appeal is in the following terms:
"4 The grounds on which this appeal is brought are that: 4.1 There is no correlation that even if the Appellant did have some knowledge of making a claim for discrimination, that she knew of the 3 month time limit for making such a claim and therefore, this amounts to a non sequitur . 4.2 The Tribunal's finding of fact that the Appellant did not allege any act of discrimination and that the incident on 29 February 2000, was not an act of discrimination in her eyes, is a misdirection in law on the documents before the Tribunal, namely form IT1 of case number 3300025/2000, which states: 4.2.1 Box (paragraph) 1 – 'Physical and Racial Abuse' 4.2.2 Box (paragraph) 5 – 'Mr Jeff Tan – Abuser' 4.2.3 Box (paragraph 11) – 'On 29 th February whilst I was carry [sic] out my duties in the Silk Stream Day Hospital at about 2 pm I was hit on my spine by another [sic] staff – Mr J Tan …'."
[10]As regards paragraph 4.1, this is a reference to paragraphs 5(a) and 5(b) of the Reasons. We do not think that the criticism is well-founded. The Appellant's argument before the Tribunal was not simply that she was unaware of the time limit but that she was unaware of the possibility of claiming for either form of discrimination: see paragraph 2(f) of the Reasons. If she had been aware of the possibility of claiming for race or sex discrimination and believed that she had suffered such discrimination, she could reasonably have been expected to obtain advice, given that she was, as the Tribunal found, persistently seeking advice from her trade union, the Citizens Advice Bureau and indeed a firm of solicitors on the personal injuries aspect of her claim. In this context the Tribunal's finding is in our view relevant to the issues and involves no misdirection.[11]As regards paragraph 4.2, this is a reference to paragraph 5(c) of the Reasons. That paragraph should not be read in isolation.

(g) of the Reasons which is in the following terms:

"This claim [that is, the first IT1] is headed in paragraph 1 'physical and racial abuse during working time – management suppressing the case – ignoring case'. However, under the details of her complaint in paragraph 11 she makes no complaints of either racial or sexual discrimination, direct or indirect, arising after the incident on 29 February 2000. Her only allegation on discrimination is that 'I am finding that getting support and being sorted out is hard because I am a black woman'. In other words, her complaint to discrimination is not the assault on 29 February 2000, but is about her inability to get help from professional agencies." (It may be that the phrase " after the incident on 29 February 2000" was intended to be " out of the incident on 29 February 2000", but nothing turns on that). In our view that is a finding which was open to the Tribunal on the evidence and which involves no error of law. It is true that box 1 does use the phrase "
Racial abuse", and it is clear that by no later than that date the Appellant was seeking to put some aspect of her claim as a claim for race discrimination. But in the fairly detailed account of the incident on 29 February set out in box 11 it is indeed the case, as the Tribunal was pointing out, that there is no allegation that Mr Tan acted from a racial or indeed sexual motive or that he used any racial or sexual abuse. It seems to us that this was a material consideration for the Tribunal to bear in mind in reaching its overall conclusion on the issue of what was just and equitable.[12]Ground 5.1 is in the following terms:
"5.1 The Tribunal failed to exercise its discretion properly when considering the prejudice each party would suffer in allowing the claim of race and sex discrimination to be allowed out of time, namely: 5.1.1 The Appellant was unrepresented, she had not been given legal advice and she had presented her Originating Application herself. Furthermore, English was not her first language. 5.1.2 The undisputed evidence that the Second Respondent had caused the Appellant physical harm."
We cannot see that these considerations should have compelled the Tribunal as a matter of law to decide on an extension of the time limit. The considerations listed at point 5.1.1 were no doubt potentially relevant (though they do not in our view really go to the issue of "prejudice") but they are in no way conclusive. As to point 5.1.2, the Appellant's argument is presumably that the claim is more serious than if she had suffered only injury to feelings. But as against that, if, as she alleges, she suffered personal injury from an unwarranted assault by the Second Respondent, she can advance her claim against him (and, it may be, the First Respondent) in another forum.[13]Ground 5.2 is in the following terms:
"5.2 The Tribunal Chairman took it upon himself to advance a defence for the Respondent that had not been pleaded, namely that the claim of race discrimination had not been made out."
We are not clear what this is a reference to. There is no finding in the Tribunal's Reasons that the claim of racial discrimination "had not been made out". If the reference is to the point discussed above in relation to paragraph 4.2, i.e. the absence of any allegation of specifically racial conduct, we believe that that was a relevant consideration in law. It makes no difference whether the point was one which was first raised by the Tribunal or had been explicitly advanced by the Respondents; but we do note that it was certainly part of the Respondents' case that the Appellant had not sought to make any allegation of a racial or sexual motivation until 8 June 2000, when it is said she raised the issue for the first time at the end of a two-hour meeting (see the grounds of resistance attached to the IT3).[14]Ground 5.3 is in the following terms:
"5.3 The Tribunal Chairman failed to exercise his discretion properly by considering matters that were not relevant to the preliminary point of whether the claims of race and sex discrimination were presented within the 3 month time limit, namely that the claim of race discrimination had not been made out: see Lindsay v Ironsides Ray & Vials; Ironsides Ray & Vials v Lindsay [1994] IRLR 318 EAT."
We do not see any error of law here. Insofar as we follow the point being made, it appears to be that which we have already addressed. Mr Jones set out in his skeleton argument the passage from the authority referred to, though we did not have it cited to us in full. But that case, it is clear, was directed to a wholly different situation, namely one where the Appellant had complained of continuing discrimination and the Tribunal had entered into a detailed analysis of what incidents occurred when. There is no analogy with the present case.[15]Ground 5.4 is as follows:
"5.4 The Tribunal determined that the Applicant had not made out her claim of race discrimination in reliance on the details in Box (paragraph) 11 which did not specifically state race albeit Further and Better Particulars had been provided: see Dodd v British Telecom plc [1988] IRLR 16 EAT."
This appears to be the same point as we have already considered. We do not believe that the Tribunal had determined that the Applicant had not made out her claim of race discrimination. The Tribunal merely drew attention, we believe legitimately, to the fact that the claim had been made in very limited terms and late. Again, the facts are quite different from those considered by this Tribunal in the Dodd case to which the Appellant refers.[16]Ground 5.5 is in the following terms:
"5.5 The Tribunal failed to attach any weight and/or consider the unchallenged evidence that the Appellant was on medication at the time she presented her Originating Applications. Nor did they consider the case law that had been referred to them in respect of extending the time limit, namely Schultz v ESSO Petroleum Company Ltd [1999] IRLR 488 CA. The Tribunal further failed to make any finding of fact on this point."
We have now seen the statement from the Appellant that was before the Employment Tribunal as regards her medical condition. This referred to the fact that she was a diabetic and had to take insulin. It also referred to the fact that she was taking pain killers, ibuprofen and paracetamol. That is the only medication to which reference is made. The statement also referred to her being depressed. We do not believe that these matters were so significant that it was an error of law for the Tribunal not specifically to refer to them in their Reasons. We are aware of no material before the Tribunal which suggested that the Appellant was suffering so serious an impairment of her health that justice and equity demanded that the time limit be extended. It is to be noted that she had in fact made complaints or approaches both to the First Respondent itself and to a number of different agencies; this is hard to reconcile with any suggestion that she was not in a position to take or act on advice any earlier than she did.[17]The last contention made by the Appellant is that the Tribunal failed to consider the second of the two applications at all. We believe this may be the same point as that urged on us orally by Mr Jones, namely that the Tribunal dealt with the matter purely as if it was a complaint of race discrimination. As we have already observed, the differences between the two Originating Applications are small. It is apparently not the case, as Mr Jones initially told us before having his attention drawn to the Appellant's statement, that one is intended to be a claim for race discrimination and the other for sex discrimination. For all practical purposes they can be dealt with together. It is perfectly plain that the Tribunal was aware that both forms of discrimination were being claimed. There were no separate considerations in relation to them which required to be dealt with separately in the Reasons.[18]It follows that the Appellant's appeal insofar as it is based on the existing grounds of appeal must be dismissed. The truth is that the judgment under section 76(5) of the Sex Discrimination Act 1975 and section 68(6) of the Race Relations Act 1976 whether it is just and equitable to extend the primary time limit is a broad one with which this Tribunal will not lightly interfere. The Appellant has not shown us that there is any error of law here.[19]However, there is one point which we have to raise. As Mr Jones has pointed out, the full decision of the Tribunal, as quoted at paragraph 7 above, dismisses the entirety of the Appellant's claims. However, as we have set out, the preliminary hearing was only directed at the time point in respect of the complaints relating to 29 February and 6 March. It appears to have been recognised, and plainly must be right, that insofar as there was a valid distinct complaint based on the events of 8 June, that could not have been dismissed on the basis that it was out of time; and the Appellant must be entitled, so far as jurisdiction is concerned, to continue to pursue it (though strictly speaking it can only be raised on the second of the two applications since the first application was presented prior to the date of the act complained of). It seems to us very unlikely that the Tribunal deliberately intended to dismiss the claim in its entirety. It seems to us much more likely that the wording of the formal order simply overlooked the fact that potentially one part of the Appellant's claim remained. If this point were drawn to the attention of the Tribunal by correspondence, or if necessary by formal application for review, we think it likely - though we cannot of course pre-judge the matter - that the point would be clarified in the Appellant's favour. However, as matters stand at the moment there is an arguable ground of appeal on that distinct point. We formally allow the appeal to proceed on that point only. For the reasons we have given we think it very unlikely that the appeal will need to be pursued, but that will of course depend on what steps the Tribunal takes. The Appellant will no doubt consider carefully whether she wishes to pursue her complaint in this surviving limited respect.