MS B BARLOW v LONDON BOROUGH OF SOUTHWARK [2001] UKEAT 536_00_1309

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 536_00_1309

Case No Appeal No. EAT/536/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS B BARLOWAPPELLANT

LONDON BOROUGH OF SOUTHWARKRESPONDENT

Before

MISS RECORDER SLADE QC

MRS J M MATTHIAS

MR A D TUFFIN CBE

Date 13 September 2001

[1]APPEARANCES For the Appellant MR C HUTCHINSON (Solicitor) North Lambeth Law Centre 14 Bowden Street London SE11 4DS For the Respondents MR S FLETCHER (of Counsel) Instructed by: Mr G Cain London Borough of Southwark Southwark Legal (Contract) Services South House 30/32 Peckham Road London SE5 8UB MISS RECORDER SLADE QC This is an appeal by Ms Barlow against the Decision of an Employment Tribunal which determined that her claim of race discrimination against her employers, the London Borough of Southwark, should fail by reason of the fact that the Tribunal did not have jurisdiction to determine it, the complaints being held to be out of time.

[2]The Tribunal was concerned to consider whether it was just and equitable to hear the complaints of race discrimination brought by Ms Barlow, notwithstanding that they were presented more than three months after the events of which complaint was made. The Tribunal was hearing this matter as a result of a direction made at a directions hearing by a Chairman, the same Chairman who conducted the hearing with which we are concerned, that there should be a preliminary hearing to determine whether it was just and equitable to hear Ms Barlow's complaints notwithstanding that they were brought out of time. The directions hearing proceeded on the basis that the last of the acts complained of occurred in May 1999, which was the date that the Applicant had inserted in her Originating Application to the Tribunal as being the date of the last act of which complaint was made. The Originating Application was presented on 31 August 1999.

[3]The Appellant advances three principal grounds of appeal. First, Mr Hutchinson, who appears for Ms Barlow, says that the Tribunal should have invited Ms Barlow to apply for an adjournment and he says that the Tribunal erred in failing to do so. Second, it is said on behalf of Ms Barlow, that the Tribunal erred in holding that it was not in dispute between the parties, but that a letter of 15 June 1999 did not, in effect, found a ground for complaint of race discrimination. Third, it is said that the Tribunal applied the wrong test for determining whether it should hear the complaints of race discrimination and moreover, that it failed to find a reason for the delay in presenting the complaint and, in addition, based its decision upon an erroneous calculation of the length of the delay in presentation of the complaints.

[4]Turning first to the first ground of appeal, Mr Hutchinson on behalf of the Appellant says that since the Applicant before the Employment Tribunal was unrepresented, the Employment Tribunal should have been particularly mindful of the need to ensure a fair hearing for her. It is said that she had informed the Tribunal that she was expecting a representative to appear at the hearing and that the representative had failed to attend. It is contended that in the circumstances, in pursuance of the duty to ensure a fair hearing, the Tribunal should have invited Ms Barlow to ask for the hearing to be deferred.

[5]Mr Fletcher, on behalf of the Respondents, accepts that a Tribunal is under a general duty to ensure a fair hearing, but says that there is no duty on the part of a Tribunal to enquire into matters which are not obvious to it. In this case, he says that Ms Barlow did not bring to the attention of the Tribunal the fact that she was expecting a representative to attend, and that the representative had not attended. He contends that there was nothing to complain of in the Tribunal's proceeding to hear the case when, apparently, there was no reason not to do so.

[6]Mr Fletcher further says it is not an error of law on the part of the Tribunal not to elicit from an unrepresented party matters which that party does not advance, or of which there is no indication. It is perhaps somewhat unfortunate that there appears to be a difference between the parties as to the factual basis upon which the ground of appeal is advanced to us.

[7]So far as the principle of law to be applied to this ground of appeal is concerned, in our judgment, there is a duty on Employment Tribunals to ensure a fair hearing of matters which are brought before them. However, Employment Tribunals are established to determine disputes between workers and their employers, without necessarily having recourse to legal or other representation, and as a matter of practice, from their very inception, they have been doing just that. It seems to us if it is obvious to a Tribunal that a party, whether it be an applicant or whether it be a respondent, is incapable of presenting their case by reason of physical or mental incapability, whether caused by illness or otherwise, in pursuance of their duty to ensure a fair hearing, a Tribunal would at the least be put on enquiry as to whether that objective could be achieved in the circumstances before it.

[8]However, in the circumstances outlined to us, it is not suggested by Mr Hutchinson that the Appellant, Ms Barlow, was obviously incapable of presenting her case. In our judgment this is not a case where it can be said that a Tribunal properly approaching the duty to conduct a fair hearing, in pursuance of its obligation, should have suggested to Ms Barlow that she should apply for an adjournment.

[9]As to the factual dispute that there is between the parties, this is not an appropriate forum for the determination of such a dispute; moreover, we do not have the material upon which, even if it were appropriate, we could do so. Suffice it to say that if Ms Barlow had informed the Tribunal that she had expected a representative to attend, and to attend with important documents, then we would have imagined that the Tribunal would have made further enquiry of her and considered the question of whether the hearing should proceed. However, for reasons which will become apparent later on this judgment, in our view, this appeal does not turn on this first ground of appeal and we therefore express no firm conclusion on that ground, save as to our observations so far.

[10]Moving now to the second ground of appeal, it is said that the Tribunal erred in observing in paragraph 9 of its Decision:

"It is not in dispute that the letter dated 15 June 1999 which was sent to the Applicant, was simply a consequence of the act which she complains of on 5 May 1999."

To put that observation in context, we will briefly refer to the factual background of this claim.

[11]Ms Barlow was employed by the London Borough of Southwark as a Night Care Officer. She had a number of complaints about her employment, dating from December 1996 through to 5 May 1999 or possibly 6 May. In any event, on that day it appears that Ms Barlow's night duties were removed from her so that she was no longer a Night Care Assistant. Thereafter she had a period of sick leave and was informed by letter dated 15 June 1999 that:

"It has come to my attention that as of 6 th May 1999 you were instructed to report for duty as a Day Care Officer. As this will affect your pay, I am writing to notify you that you will no longer receive the Night Hours Allowance, unless you work between 22.00 and 07:30 hours. This will take effect immediately, but should you have any queries do not hesitate to contact me."

Mr Hutchinson attacks the basis upon which the Tribunal proceeded, namely that the letter dated 15 June 1999 did not give rise to a complaint of race discrimination, and he urges us to conclude that in failing to treat the letter of 15 June as a complaint of race discrimination within time, the Tribunal erred in law.

[12]In her Originating Application to the Employment Tribunal Ms Barlow in her IT1 stated that the matter of which she complained took place on 6 May 1999. Her Originating Application was dated 26 August 1999 and was received at the office of the Employment Tribunal on 31 August 1999. It was therefore presented on 31 August 1999.

[13]We have already referred to a directions hearing which was held in this matter. That was held on 13 December 1999. At that directions hearing, attended by Ms Barlow and possibly, although it does not appear in the record, also by her representative. Paragraph 4 of the record of the directions given at that hearing reads as follows:

"4. On the face of the Applicant's application to the Tribunal her Originating Application had been presented more than three months after the last acts complained of. The Applicant complained in box 9 other [sic] Application of events which occurred on 6 May 1999. It was therefore appropriate to hold a preliminary hearing in order to determine whether it was just and equitable to determine the Applicants [sic] complaints."

It is therefore apparent from the Originating Application and from the directions given on 13 December that the matter was clearly proceeding on the basis that the last matter complained of occurred on 6 or possibly 5 May 1999.

[14]The Applicant then must have gone to solicitors. By letter of 12 January 2000, in accordance with directions given by the Tribunal for the Applicant to provide clarification of her claim, the solicitors wrote to the London Borough of Southwark stating what the substantive incidents of which complaint was made were, by reference to paragraphs in the Originating Application. They also say this:

"The Applicant will say that the letter dated 15 June 1999 was the final straw at that time in a continual pattern of discrimination."

The matter then came before the Tribunal for the preliminary hearing. Mr Fletcher, who was Counsel for the Respondents at the Tribunal as well as before us, states in the Skeleton Argument presented to us that the Applicant accepted before the Tribunal that the last act complained of was 5 May 1999 when she was removed from night duties and restored to day duties.

[15]Mr Hutchinson, on behalf of Ms Barlow, contends that the Tribunal erred in not investigating further whether the letter of 15 June 1999 itself could give rise to a substantive complaint of race discrimination. In our judgment, it is not for an Employment Tribunal to put forward arguments which are not advanced by a party to it. Plainly if the facts alleged give rise to those arguments and those facts are advanced by a party to the proceedings before the Tribunal, and that party is unrepresented, the Tribunal may well enquire as to whether those facts can give rise to a complaint or particular way of formulating a complaint.

[16]However, in the circumstances of this case, the Applicant had already in her Originating Application formulated her complaints, there had been a directions hearing in pursuance of which the hearing under consideration was convened and was convened solely for the purpose of considering whether it was just and equitable to hear out of time complaints. Mr Hutchinson contends that notwithstanding those matters, the Tribunal should have had regard to the letter from the solicitors dated 12 January 2000 and reviewed, in effect, the direction which had been given by the Chairman. He contends that the Tribunal should have considered whether there had been an act of race discrimination on 15 June 1999 and whether that complaint was in time, and that it should not have accepted the concession made by the Applicant, which does not seem to be seriously challenged as to whether it was given.

[17]In our judgment, bearing in mind all the circumstances which we have outlined, the Tribunal cannot be said to have erred in law or acted in breach of natural justice in proceeding on the basis that it was there to determine whether complaints, which had been agreed to be outside the limitation period for presentation, should nonetheless be heard under the Tribunal's exercise of its discretion under the Race Relations Act 1976 Section 68(5). In our judgment, therefore, the Tribunal did not err in its treatment of the party's attitude to the letter of 15 June 1999.

[18]We now turn to what we regard as the principal ground of this appeal, namely the ground that asserts that the Tribunal erred in its approach to the question of whether it should exercise its discretion to hear the complaints of race discrimination made by Ms Barlow. The Race Relations Act 1976 Section 68(6) provides:

"A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

[19]As we have already said earlier in this judgment, the last act complained of, occurred on 5 or 6 May 1999. The Originating Application was presented on 31 August 1999 and the primary limitation period of three months had therefore been exceeded. The authorities on Section 68(5) make constant reference to the fact that the discretion to be exercised under this provision and the equivalent provision in the Sex Discrimination Act 1975 is a very wide discretion. It was said as long ago as 1977 in Hutchison v Westward Television Ltd

[1977] ICR 279

at 282 by Mr Justice Phillips that the equivalent words in the Sex Discrimination Act 1975 very sensibly give the then Industrial Tribunal a wide discretion to do what it thinks is just and equitable in the circumstances:

"Those are very wide words. They entitle the industrial tribunal to take into account anything which it judges to be relevant. We doubt whether industrial tribunals will get much assistance in exercising that jurisdiction by being referred to cases decided on other tests under other statutes" and he went on to say that these are simple wide words and: "we would deprecate these very simple, wide words becoming encrusted by the barnacles of authority."

[20]Those wide words have not become encrusted with the barnacles of authority, but useful guidance was given in the case British Coal Corporation v Keeble

[1997] IRLR 336

at 338 at paragraph 8. In that case the Employment Appeal Tribunal referred to the equitable discretion to extend time and having referred to the Limitation Act 1980 and the checklist of factors contained in Section 33 of that Act, the Employment Appeal Tribunal says:

"It requires the Court to consider the prejudice which each party would suffer as a result of the decision to be made and also to have regard to all the circumstances of the case and, in particular, inter alia to - (a) the length of and reasons for the delay;"

The Appellant argues that in this case the Employment Tribunal erred in failing to have regard to the prejudice to be suffered by the Applicant were an extension of time not to be granted. Further, the Appellant says that it is not clear from its Decision what the Tribunal held to be the reason for the delay in presentation of the Originating Application, and finally, it is said that if and insofar as the Tribunal referred to delay from the expiry of the time for presentation of the complaint to the date on which the complaint was actually presented, the Tribunal erred in the length of time it ascribed to that period.

[21]Mr Fletcher, for the Respondents, agrees with Mr Hutchinson that useful guidance is provided in British Coal Corporation. He says that so far as the Tribunal's approach to the question of prejudice to the Applicant is concerned, the Tribunal is to be taken as having considered prejudice. He refers to paragraph 8 of the Employment Tribunal's Decision in which prejudice to the Respondent is taken into account. He states that the prejudice to the Applicant, namely the prejudice in not being able to pursue her complaints of race discrimination, is so obvious that it must be taken as read that the Tribunal took it into account.

[22]As for the Tribunal's decision on the reason for the delay in presentation of the complaint, he contends that the Tribunal held that the Applicant had not advanced adequate or satisfactory reasons for the delay and that that is a sufficient finding by the Tribunal.

[23]As for the question of dates, Mr Fletcher contends that Mr Hutchinson himself says that if the time referred to by the Tribunal as being six weeks delay is to be taken as delay from the last act of discrimination, or alleged discrimination, then that is not an error in calculating the delay from the expiry of the limitation period to the date of the presentation of the complaint which was less than a month.

[24]Plainly a Tribunal, in exercising its discretion as to whether it should hear complaints of race discrimination presented out of time should take into account those matters which are relevant in the circumstances of the case. Those circumstances will vary according to the particular factual situation, but the matters referred to in British Coal Corporation v Keeble will, no doubt, need to be considered in such cases. These include questions of prejudice and the length of and reasons for the delay.

[25]So far as the question of prejudice to the Appellant is concerned, we cannot accept that the Tribunal, notwithstanding that it does not expressly refer to that consideration in its Decision, must be taken as having had prejudice to the Appellant in not being able to pursue her complaints in mind, when it reached its Decision.

[26]So far as a failure to make a finding as to the reasons for the delay is concerned, in our judgment there is a difference between setting out a party's account of some events leading up to the presentation of a complaint, and a Tribunal's finding on the basis of evidence before it of the reasons, or reason for delay in presentation of a complaint.

[27]In our judgment, in this case the Tribunal failed to make an adequate finding as to the reasons for the delay in presentation of the complaint. If its conclusion was that there was no reason, or no adequate reason for the delay in presentation of a complaint, in our judgment, it should have so found. The Tribunal did observe in paragraph 7 of its Decision:

"We have not had any proper account from the Applicant of the delay generally from May 1999."

And further, in paragraph 10:

"We were unable to extend jurisdiction in this case because we did not have an adequate basis for doing so."

[28]Those observations go some way to satisfy the requirement to make a finding as to the reason for the delay, but in our judgment, they do not go far enough. Moreover there is some basis, in our judgment, for concern about the Tribunal's observations about the length of the delay in that it was some twenty seven days, not six weeks, after the expiry of the primary limitation period that the complaint was presented to the Employment Tribunal.

[29]In our judgment, therefore, the Tribunal erred in its approach in applying Race Relations Act 1976 Section 68(6). We accordingly allow this appeal, and remit the case to an Employment Tribunal for the determination of whether the complaints made in the Originating Application should be heard, notwithstanding that they were presented outside the time limited for doing so.