MR C ANDERSON v (1) THE ROVER GROUP LTD (2) JOE BLACK (3) JASON FOXHALL [2002] UKEAT 1426_99_1302

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1426_99_1302Case No Appeal No. EAT/1426/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR C ANDERSONAPPELLANT(1) THE ROVER GROUP LTD (2) JOE BLACK (3) JASON FOXHALLRESPONDENT
Before
His Honour Judge D Pugsley Ms S R Corby Mr J HoughamDate 13 February 2002
[1]APPEARANCES For the Appellant MR M S PANESAR (of Counsel) The Commission for Racial Equality 3rd Floor Lancaster House 67 Newhall Street Birmingham B3 1NA For the Respondents MISS I OMAMBALA (of Counsel) Rover Group Ltd Legal Services Dept International House Brickenhill Lane Birmingham B37 7HQ HIS HONOUR JUDGE D PUGSLEY This is an appeal from the decision of an Employment Tribunal sitting in Birmingham in which it held that the Applicant had been subject to racial discrimination. The application was, however, dismissed because it was out of time and it was not just and equitable to extend the time to hear the complaint. To those innocent of the technicalities of employment law it might come as something of a surprise that a tribunal should spend some 8 days (spread over a period of 5 months) and decide that, although there had been racial discrimination, it was not just and equitable to hear the complaint as it was out of time by some 6 weeks.[2]There is a cross appeal by the Respondents against the finding of racial discrimination. The matter came before the Employment Appeal Tribunal on a Preliminary Hearing when it was noted that it was rather " surprising " that after an 8 day hearing it was decided that it was not just and equitable to allow the case to proceed.[3]The matter then came to a Full Hearing at the Employment Appeal Tribunal. That hearing was adjourned to allow the Respondents to raise the point that the Tribunal did not have jurisdiction to make the finding of racial discrimination in view of its finding that it was not just and equitable to allow the case to proceed.[4]The factual background to the case may be briefly narrated. The Applicant had been employed by the first Respondents as a sheet metal rectifier since1980. In 1998 he applied for a job at the Cowley plant. These vacancies evoked considerable interest. In the short listing process it was decided that only those who scored 8 points should be interviewed. However the Applicant received a recommendation from his manager and was interviewed. There were others who were interviewed because they had received similar recommendations although they had not crossed the initial hurdle of 8 points.[5]The Tribunal made the finding that prior to the interview those who were to conduct the interview concluded that all the candidates had the requisite skills for the vacancies and what they were looking for from candidates was a commitment to, and a willingness to cope with, the considerable changes in their personal lives that the new jobs would entail. They would be required to travel to Cowley to work, possibly staying away from home, work overtime and at weekends and at holidays; they may have to take time of in lieu rather than being paid overtime and if there was a shortage of work at Cowley they would have to return to work at Longbridge, thought not necessarily returning to their usual areas of work. The picture which emerges is that those who were accepted were to be at the beck and call of the company depending on the expediencies of their work and that this would entail a considerable intrusion into their lives.[6]The interview took place and the Applicant was not selected. Mr Black and Mr Foxall (the second and third Respondent) took the view that the Applicant was somewhat hesitant and seemed a little inflexible about the conditions of the post. Although this decision was taken in February, several weeks later the Applicant had still not heard and he was not told that he had not been appointed until 27 March. Following receipt of this information the Applicant approached his trade union official, Mr Tom O'Hanlon, and explained that he had been the victim of race discrimination and that he wanted to pursue a grievance. The Applicant accepted the advice he received from Mr O'Hanlon that as he had a strong case he should not raise the issue of race discrimination. The grievance procedure was invoked and proceeded through both Stage 1 and Stage 2 and it was not until mid way through the Stage 3 procedure that the issue of race discrimination was raised. Before a meeting could be re-convened the Applicant submitted an Originating Application complaining of race discrimination.[7]The Tribunal's findings: - 1 The Tribunal rejected the suggestion that there was anything discriminatory in the way in which the grievance procedure was operated. 2 The Tribunal accepted that the Applicant had been treated less favourably on grounds of race in the selection procedure. 3 The Tribunal decided that the application was out of time and it was not just and equitable for time to be extended so as to validate the application.[8]The Appellant appeals the decision that it was not just and equitable to extend the period of time to validate the application. The Respondent appeals the finding that the Respondents were guilty of race discrimination and raises the issue that the Tribunal, having found that it was not just and equitable grounds, had no jurisdiction to consider the question of discrimination.[9]The Appellant's Appeal Mr Panesar has submitted that the Employment Tribunal erred in law in determining that it was not just and equitable to extend time in this case. Mr Panesar's argument has been both careful and comprehensive and we hope that in summarising it we do justice to it. In essence Mr Panesar's submission is that the Employment Tribunal fettered their own discretion by their myopic concentration on one issue. Mr Panesar has highlighted the way in which the Tribunal concentrates on the fact that the Applicant accepted his trade union official's advice not to raise the issue of racial discrimination at an early stage and only resiled from that during the course of Stage 3 of the grievance procedure.[10]Mr Panesar has pointed out that in British Coal Corporation v Keeble and Others [1997] IRLR 336 at 338, Mrs Justice Smith expressly approved an earlier ruling by a differently constituted division of the Employment Appeal Tribunal that the discretion to extend time on just and equitable grounds was as wide as the discretion conferred by Section 33 of the Limitation Act 1980 . That section provides a broad discretion for the Court to extend the limitation period of 3 years in cases of personal injury and death. It requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular, inter alia: - a) the length of time and the reasons for the delay b) the extend to which the cogency of the evidence is likely to be affected by the delay c) the extent to which the party sued had co-operated with any requests for information d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action e) the steps taken by the plaintiff to obtain the appropriate professional advice once he or she knew of the possibility of taking action[11]Mr Panesar has referred us to such decisions of the Employment Appeal Tribunal as Mills v Crown Prosecution Service [1998] IRLR 494 ; Aniagwu v London Borough of Hackney and Owens [1999] IRLR 303 and Robinson v Post Office [2000] IRLR 804 in support of his argument that a Tribunal has to have regard to all the circumstances. The fact that an employee chooses to exhaust internal procedures before commencing legal proceedings is a factor to be taken into account. Further he submits there is no recognition in the decision that whether an Applicant has been erroneously or at least imprudently advised by his union is also a relevant factor and he cites Hawkins v Ball and Barclays Bank PLC [1996] IRLR 258 and British Coal Corporation v Keeble and Others , a decision to which we have already adverted in a different context.[12]Mr Panesar's submission is that the Tribunal failed to consider all the relevant circumstances and that they never dealt with the crucial issue as to whether a fair trial was still possible. In that the Tribunal went on to make findings that there was an act of discrimination, he submits they implicitly accepted that not withstanding the delay they were able to resolve the issues fairly.[13]Ms Omambala, who appears on behalf of the Respondents, makes the cogent point that when looking at the decision of the Tribunal it should be noted that at paragraph 7 of their decision it is made clear that the parties had prepared written submissions and that the Tribunal in terms made it clear that those submissions had been adopted for the purpose of this decision. She points to those decisions such as Retarded Children's Aid Society Ltd v Day [1987] ICR 437 in which the Court of Appeal made it clear that because a Tribunal does not mention a particular issue does not mean that an appellate Tribunal should conclude that it has been overlooked.[14]Ms Omambala points out that the Appellant's written submissions contained a summary of propositions which clearly emanates from the British Coal Case . She has properly pointed out that such decisions as Aniagwu v London Borough of Hackney and Mills are to be taken in the context of their specific factual context. Ms Omambala submits that questions of "justice and equity in all the circumstances" are pre-eminently matters for an Employment Tribunal and the question of weight that should be given to each factor is a matter for the Employment Tribunal and not this Tribunal. She cites the dictum of Phillips J in Hutchison v Westward TV Ltd [1977] ICR 279 that:- "(the Appellant) really must show if he is to succeed upon appeal that the industrial tribunal demonstrably took a wrong approach to the matter or that they took into account facts which they ought not to have taken, or that they failed to take into account facts which they should have done, or as a last resort which is always open on appeal that the decision was so unreasonable in all the circumstances that no reasonably instructed tribunal could have reached it."[15]We are well aware of the force of that stream of authority which deprecates the propensity of appellate courts to substitute their own view for that of the Tribunal of first instance. We note that the House of Lords has warned of the dangers of appellate courts seeking to retry issues which are properly matters within the discretion of the fact finding Tribunal at first instance (see Piglowska v Piglowski [1999] 3 All ER 632 , the speech of Lord Hoffmann). Moreover the practical experience of sitting in this Tribunal gives all the members extensive experience of the understandable, but forlorn, wish many parties have that we should essentially rehear their case and reverse the findings of fact made by an Employment Tribunal. We are aware of the seductive temptation of seeing what are essentially issues of fact being paraded before this Tribunal masquerading as issues of law.[16]Furthermore we accept that there is often an artificiality about appeal hearings. A Tribunal at first instance often has a range of matters which have to be determined. The appeal process highlights particular issues thereby conferring on them a prominence which they lacked when the case was first considered. What was a peripheral and subsidiary matter at the hearing may acquire the false status of being the central foundation of the decision when viewed through the distorting prism of the appeal process.[17]Yet despite these qualifications, and the able arguments of Ms Omambala, we have found that this appeal must succeed. Permeating the whole decision is an underlying implicit premise that, having taken the advice of his trade union official not to raise the issue of race discrimination at one stage, that it was unfair to allow the Applicant to raise it at a later stage. Although we accept that we are taking the phrase slightly out of context we consider that the Tribunal's assertion at paragraph 26 of the decision: "… it would be manifestly unjust if an applicant was able to pursue an internal Grievance Procedure and then sometime in the future, without having given any prior notification of an existing complaint of race discrimination (or that his complaint in reality is of race discrimination) is then entitled to raise that issue and to contend that by doing so, is sufficient to extend time to bring a complaint with a Tribunal's jurisdiction." reveals a flawed approach to this case. The fact that the Applicant had failed to put forward the issue of race discrimination at an early stage was relevant but in our view the Tribunal was making it determinative of the whole issue. Ms Omambala has pointed out witnesses had difficulty in remembering matters. However at no stage does the Tribunal consider the extent to which a fair trial was still possible and there is no hint in this decision that the Tribunal considered that the lapse of time affected their ability to reach a fair decision.[18]In Mills at paragraph 22 Mr Justice Morison posed the question "If a fair trial is possible despite the delay, on what basis can it be said that it would be unjust or inequitable to extend time to permit such a trial?" It might be said that where a Tribunal has heard the evidence and has found that the allegation of race discrimination is well founded it is even more difficult to envisage a basis upon which it could be said that it is unjust or inequitable to allow the case to proceed.[19]We have come to the view that the appeal must be allowed. We have debated whether we should remit this case to be reheard by a different Tribunal or whether we should substitute a finding that it was just and equitable to allow the case to proceed. The test for this Tribunal to reverse a finding of an Employment Tribunal as opposed to remitting it to be heard by another Tribunal is a high one. Before we could take this course we would have to be satisfied that, in effect, it would be inevitable that any Tribunal would come to the conclusion that it was just and equitable for the case to proceed. In the event we have come to the conclusion that we should reverse the decision of the Tribunal and conclude this is a case in which it was just and equitable for the case to proceed. Although there was a delay in raising the issue of race discrimination the reality is that within a very short period of time the Applicant was raising the question of why he had not been appointed to the post at Cowley. Mr Panaser has persuaded us that the appropriate course is to reverse the Employment Tribunal's decision and to declare it was just and equitable for the case to proceed.[20]The Cross Appeal The appeal against the finding that the Applicant had been the victim of race discrimination formally has 3 grounds of appeal. The overall thrust of the argument is that the decision does not set out with sufficient particularity why it was that the Tribunal rejected the Respondent's account of the selection procedure and why it felt able to draw the inference of race discrimination.[21]It is pertinent to note that the written submissions to which we have made reference make it quite clear that this was a case in which a wide variety of evidence was given which does not surface in the decision. In her written submissions which were before the Employment Tribunal Ms Omambala refers to the contention made on behalf of the Applicant that there was a culture of discrimination and submitted that the evidence called did not justify that contention.[22]Although the Tribunal set out a comprehensive series of directions as to the law the passage in which they deal with the findings of discrimination is brief and is to be found in paragraph 24 of the decision:
"Was the Applicant treated less favourably in February 1998 when he was not selected for one of the vacancies at Cowley. By reference to the matrix, the Applicant failed to secure a sufficiently high score to be short listed. However, because he was recommended by his manager, he was short listed and interviewed. Of the persons interviewed, it is said the Applicant was not selected because he was hesitant in the way he responded to questions from Mr Black as recorded by Mr Foxall. By reference to the documentation it is clear that candidate 6 also appeared to be less than enthusiastic in his response to the questions put to him, but nevertheless he was offered one of the vacancies. The Respondents have not explained to the satisfaction of the Tribunal the basis upon which in the event, candidate No 6 was selected in preference to the Applicant. At interview, candidate 6 appears to have performed no better than the Applicant. However, he was selected for the vacancy and the Applicant was not, notwithstanding his undoubted skills and length of service. Although the Respondent has sought to suggest that the Applicant was not selected because of the hesitancy, the Tribunal has concluded that the Applicant was treated less favourably and in the absence of any explanation for the differential treatment between the Applicant and candidate No 6, has further concluded that it was on the grounds of the Applicant's race."
[23]Ms Omambala's submission is that this does not set out with sufficient particularity why they came to this view. The decision does not make specific findings as to whether the Tribunal rejected in whole or in part the named Respondents' evidence; the Tribunal did not carry out a careful analysis of the comparison between the Applicant and the comparator and the Tribunal make no findings as to the named Respondents' evidence that the passage of time had affected their ability to recollect the details of the interview, the scoring and the rationale for it. Moreover it is submitted that the Tribunal substituted its own view on the application for the selection criteria for that of the interviewers.[24]It has frequently been pointed out that those who suffer from racial discrimination have sustained a serious wrong; equally a degree of stigma applies to those who have been found to have discriminated on the grounds of race. As Lord Justice Peter Gibson pointed out in Chapman v Simon [1994] IRLR 121 at paragraph 41, in such circumstances Industrial Tribunals should conduct their deliberations with meticulous care. The well known test that parties are entitled to be told the reason why they won and why they lost (see Bingham L J in Meek v City of Birmingham District Council [1987] IRLR 250 at 251) applies with particular rigour in cases involving discrimination. Ms Omambala has directed our attention to he judgment of Lord Justice Mummery in the case of Martins v Marks & Spencer [1998] IRLR 326 in which he warns of the dangers of a Tribunal substituting its own view and failing to make clear findings of fact about crucial issues and allowing a decision to become a discursive treatment of the evidence.[25]Ms Omambala has raised issues of real concern. It is unfortunate that in a decision running to such length the crucial findings of fact should be so compressed. It is to be noted that in their written submissions both Mr Panesar and Ms Omambala had made comprehensive submissions on many aspects of this case concerning the selection procedure as the Tribunal pointed out at paragraph 7 of the decision.[26]There is, as was noted in the hearing, a certain irony in that both advocates were, in advancing their respective appeals, claiming that the decision offended the requirements set out in Meek v City of Birmingham District Council and, in resisting the appeals, seeking to claim that the decision dealt adequately with the issues. There is however a crucial distinction between the appeal and the cross appeal. In the appeal it was noted that the Tribunal made no finding as to whether, notwithstanding the delay, a fair trial was still possible and proceeded to make findings of the substantive merits of the case without suggesting they were inhibited by any particular difficulties. In our view that was clearly an error of law. In the cross appeal the issue really turns on the adequacy of the reasons. It would have been more appropriate for the findings to have been dealt with in greater detail. However this is not a case (as in Martins v Marks & Spencer ) in which the Tribunal made a global assessment of bias against the Respondents. Indeed it is to be noted that the Tribunal rejected the complaint that the grievance procedure had been discriminatory. On the findings of fact it was common ground that all the candidates were qualified to fill the vacancies at Cowley. Mindful of the difficulties that the new posts entailed, the panel were concerned as to the way in which the candidates would meet the demands caused by the irregular nature of the work. The crucial issue was why the Applicant's application was refused when candidate No 6 was accepted when both had evinced a lack of enthusiasm. In the absence of a credible explanation the Tribunal were entitled to draw the inference of discrimination.[27]Having given the standard direction as to the drawing of inferences we see no reason for assuming that that Tribunal failed to follow their own directions. On the documentation and evidence before them one candidate was black and one was white. Both were technically capable of doing the job (see finding at paragraph 5, viii). The Tribunal made a finding that according to the evidence and the documentation both candidates seemed to be less than enthusiastic. The Tribunal sought an explanation as to why there should be different treatment of candidates who on their findings were in comparable positions and no satisfactory explanation was given.[28]In Piglowska v Piglowski [1999] 3 All ER 632 , Lord Hoffman pointed out that the advantage that a first instance judge had of seeing the witnesses was well understood on questions of credibility and findings of primary facts. He went on to say at 643:
"But it goes further than that. It applies to the judge's evaluation of those facts. If I may quote what I said in Biogen v Medeva PLC [1996] at 165:- "
The need for appellate caution in reversing the judge's evaluation of the facts is based on more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of impressions as to emphasis, relative weight, minor qualifications and nuance of which time and language do not permit exact expression, but which may place an important part in the judge's overall evaluation" The second point follows from the first. The exigencies of daily court room life are such that reasons for judgement will always be capable of having been better expressed…… These reasons should be read on the assumption that, unless he had demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."[29]Ms Omambala addressed us with great skill, but standing back from the case, we consider that she is inviting us to succumb to the very temptation which Lord Hoffmann was enjoining appellate Tribunals to resist. Indeed it may be said that Lord Hoffmann's strictures apply with greater force to a Tribunal hearing which is vested with the authority of having being decided by an industrial jury. We consider that we would be usurping the role of the Tribunal of the first instance and in the end we see no alternative but to dismiss the cross appeal.[30]Ms Omambala has accepted that, if the Appellant's appeal was allowed and the finding of the original Tribunal reversed, and if her cross appeal on this issue fails, then the Respondents would accept that the case should be remitted to proceed to a remedy hearing. We consider this concession is right and that the case should now proceed to the issue of remedy.[31]In the light of that concession Ms Omambala's amended ground of appeal as to jurisdiction becomes somewhat academic. One of the issues in this case was whether there was a continuing act of discrimination. The Tribunal therefore had to make some findings to deal with that matter.[32]Ms Omambala's argument is that once the Tribunal had decided that the application was out of time and it was not just and equitable to validate it then it no longer has jurisdiction to consider the issue on the merits in view of the provisions of Section 68(1) that a Tribunal should not consider a complaint under Section 54 which is out of time. Section 68(6) is a saving provision which enables a Tribunal to consider a claim which is out of time if, but only if, in all the circumstances of the case, it considers that it is just and equitable to do so.[33]We certainly accept Ms Omambala's argument that as a matter of good practice, even if some consideration of the merits is inevitable to determine the issue of the time limit, once the Tribunal have decided that the case is out of time, and it is not just and equitable to extend the time limit, then the appropriate course is to dismiss the case because the Tribunal lacks jurisdiction.[34]Neither side has been able to assist with any authority on this issue. As this is no longer an issue which it is necessary for us to determine we hesitate to give any definitive ruling upon the matter. Even though a claimant loses his or her case a judge will nevertheless assess damages so that if there is an appeal against the issue of liability there is a finding as to quantum. There may be cases in which a Tribunal might consider it appropriate to make certain findings on the merits if they considered there might well be a serious challenge to its conclusion about jurisdiction. We do not consider that in the particular circumstances of this case in absence of authority it would be helpful to make a decision on a matter which we are not, in the light of our findings in this case, called upon to make.[35]We therefore allow the appeal and declare that it was just and equitable to proceed; we dismiss the cross appeal on the merits and we order that the matter now proceeds to a remedy hearing. We are mindful of the time which has elapsed since the original hearing. We therefore direct that the matter be listed for directions before the Employment Tribunal to determine whether this should be before the same, or a different Tribunal, in view of the time which has elapsed. We express no definitive view on the argument as to jurisdiction since it no longer arises as an issue in this case.[36]We wish to express our gratitude for the help we have received from both counsel.