MRS A OYEMADE v THE FAMILY HOUSING ASSOCIATION [2002] UKEAT 635_01_1204

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 635_01_1204Case No Appeal No. EAT/635/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS A OYEMADEAPPELLANTTHE FAMILY HOUSING ASSOCIATIONRESPONDENT
Before
His Honour Judge J R ReidDate 12 April 2002
[1]APPEARANCES For the Appellant MS M BUTLER (of Counsel) Messrs Douglas, Peter & Co Solicitors 200 The Grove Stratford E15 1NS For the Respondent MISS S PALMER (of Counsel) Messrs Roger Vincent Associates 19 Claremont Road Claygate Esher Surrey KT10 0PL JUDGE J R REID QC: This is an appeal from a decision of the Employment Tribunal held at London (South) on 15 March 20001, the decision being promulgated on 21 March. By that decision, which was unanimous, the Tribunal held that the Applicant, Mrs Oyemade's complaint of unlawful discrimination was not presented to the Tribunal before the end of the period of three months beginning when the act complained of was done and in all circumstances of the case did not consider it just and equitable for the Tribunal nevertheless to consider the complaint out of time. They accordingly held that they had no jurisdiction to consider the complaint and dismissed the originating application.[2]Against that decision Mrs Oyemade appeals. She has two grounds of appeal, the first being that the Tribunal misdirected itself as to the applicable law under which a time extension ought to have been considered and that they had considered whether the application could reasonably practicably have been made within time, whereas they ought to have considered whether it was just and equitable in all circumstances for an extension of time to be given. See section 68(6) of the Race Relations Act .[3]The second ground was that the Tribunal had misdirected itself by taking into account that: "the Respondent is a small non-profit making organisation," when this assertion was not supported by the evidence before it, and when in fact the FHA is a large not for profit organisation with a turnover in excess on 43 million pounds a year and fixed assets exceeding 538 million pounds. It is said that the decision in those circumstances that it was not just and equitable to extend the time limit was perverse.[4]The facts, which I can take fairly briefly, are these. That the Applicant and Appellant was employed from December 1989 until 16 March 2000 as a Financial Accounts Officer at the Respondent's premises in Clapham Road, the Respondent being a housing association employing about 300 people. On 5 January, she was told that she was to be dismissed with effect from 16 March by reason of redundancy and that the reason for that was that her post, was one of those, the only one in her department, which was disestablished as a result of a restructuring. That restructuring was required as a result of certain shortcomings in the previous structure by the auditors, the substantial international firm of Howarth Whitehill. The reorganisation followed lengthy periods of consultation and resulted in a shake up of the financial processing department, where as I say, one post being lost, that being Mrs Oyemade's post.[5]Under the proposals, she was offered the opportunity of taking redundancy and applying for a newly created post further up the ladder so to speak or of being assimilated into a post newly created lower down the ladder with her current salary being protected for two years. It will be observed from that that in the effect of the reorganisation was to create two jobs where there had been one before. She chose not to be assimilated into the new lower post because, amongst other things, that would have entailed her working along side persons to whom she had previously been senior. She applied for but was unsuccessful in obtaining the new and more senior post. She then applied to the Employment Tribunal alleging that she had been unfairly dismissed. The dismissal took place on 16 March 2000. Her solicitors regrettably posted the application on 15 June 2000; it arrived at the Employment Tribunal on 16 June 2000 and was therefore out of time. The application was in these terms:
"Grounds of Unfair Dismissal, 1. The Respondent employed the Applicant as a Financial Accounts Officer at its premises at 373 -377 Clapham Road, London, SW9 9BT, from December 1989 until her dismissal on 16 th March 2000. The Respondent is a Housing Association and employs about three hundred people. 2. By a letter dated 5 th January 2000 from Tony Hart, Personnel and Training Manager, the Respondent told the Applicant that she was to be dismissed with effect from 16 th march 2000 by reason of redundancy. 3. The Applicant considers her dismissal to have been unfair. 4. In particular, the Applicant will assert that the reason for her dismissal did not have any basis in fact and/or the Respondent did not act on reasonable information reasonably acquired and did not reach a proper business decision. 5. Further or in the alternative, the Applicant will claim that she was dismissed due to her ethnic origin. 6. Further or in the alternative, the applicant will rely on the fact that: (a) The Respondent failed to provide the applicant with the opportunity to Appeal against the decision that she should be dismissed. (b) The Respondent failed to consider or to provide reasonable and appropriate alternative employment opportunities for the Applicant and/or training so that she might be re-deployed within the Respondent company."
[6]When the matter came on for first hearing on 6 October 2000, it was accepted by counsel appearing on her behalf that the Tribunal did not have jurisdiction to consider the unfair dismissal complaint and the complaint was accordingly dismissed. As the Tribunal observed, that was a proper concession to make. But at the same time, counsel applied to amend the Originating Application to identify an unlawful race discrimination complaint, namely the dismissal of the applicant was less favourable treatment on racial grounds. The Tribunal allowed that amendment to be made and gave directions as follows; "1) That the Applicant identified comparators in our race discrimination complaint by no later than 20 October. 2) The Respondent had leave to amend the Notice of Appearance to plead the grounds of resistance to the race discrimination complaint; 3) For the parties to liaise as to disclosure and inspection of documents and preparation of a trial bundle of documents and preparation and exchange of witness statements; 4) For the case to be listed for a full merits hearing for one day on Monday 13 November 2000, to include the jurisdictional issue." The jurisdictional issue (being that which is now before us) was whether an extension of time should be given in relation to the discrimination complaint on the basis that it was just and equitable to do so.[7]At that further hearing on 15 March as it eventually became, the Tribunal dealt with that jurisdictional point first and having decided it in favour of the Respondents, did not have to go on and deal with the further question as to the merits of the case. The Applicant did not in fact at any stage amend her Originating Application, but simply supplied a list of nine persons who were said to be comparators. Of those nine, three were white, two were African, two were West Indian, one was Chinese and one was Asian. A response was made to that response.[8]The Tribunal had heard submissions. There was no evidence called on this preliminary point, both parties' representatives saying that they would not be calling evidence but be relying upon submissions. The submissions made by Miss Butler, who then as now, appeared on behalf of Mrs Oyemade were summarised at paragraph 18 of the decision. She submitted it was just and equitable for the Tribunal to consider the case, her principal argument being that the Originating Application was only one day out of time, there was no prejudice to the Respondent in particular because ethnic origin had been mentioned in the Originating Application.[9]Mr Vincent on behalf of the Respondent pointed out that the Applicant had been represented throughout by the union and knew well before the date of dismissal of the date of termination of her employment. No good reasons were advanced as to why the Originating Application had been presented out of time. The race issue was not be raised prior to the receipt by the Respondent of the proceedings for the Tribunal and even at that stage the complaint was not of race discrimination but of unfair dismissal. He submitted that there had been severe delay with consequential prejudice to the Respondent and pointed out that by this stage, a year had passed all but one day from the date of dismissal.[10]The Tribunal, having set out those submissions went on and said the Tribunal was of the view that the Applicant had ample opportunity to present her Originating Application within time, she knew by early January 2000 that her employment was near its end. It ended on 16 March 2000. Furthermore, the Tribunal noted that the Applicant had access to advice, she had been represented throughout by her union and the Originating Application was put in by solicitors on her behalf.[11]The Tribunal then went on to deal with the balance of prejudice. It noted; "1)`The first time that race was raised by the Applicant was in a comment in the Originating Application, it had not been raised previously and therefore it had not been previously addressed by the Respondent. 2) In fact race discrimination was not identified in the Originating Application as a complaint; the Tribunal noted that the Originating Application was presented by legal advisors on behalf of the Applicant, the consequence of that was the preliminary hearing, 6 October 2000, was to deal only with jurisdiction to hear the unfair dismissal complaint. 3) The Tribunal also noted it was only at the hearing on 6 October 2000 that any application was made to identify a complaint of race discrimination. 4.) Consequence of these matters was that the Tribunal's dealing with the case over a year after the alleged act of racial discrimination, that being of course, the notice of dismissal rather than the time when that dismissal finally took effect." And whilst the Tribunal accepted the matter as finely balanced, the Tribunal considered the prejudice and Respondent outweighed any prejudice to the Applicant. The Tribunal then unfortunately added the following sentence; "In coming to that decision, the Tribunal took into account the fact the Respondent is a small non-profit making organization."[12]In those circumstances the Tribunal dismissed the application. The first of the grounds of appeal was that the Tribunal approached the matter on the wrong basis and didn't look as they should have done at section 68(6) and the question whether it was just and equitable to allow the application made out of time. It was said this Tribunal looked instead at the "reasonably practicable" test which would have been appropriate in considering whether to allow the unfair dismissal claim to be continued out of time. That point was based on what was said in paragraphs 19 and 20 of the decision. I have read those paragraphs. Paragraph 19 in fact does no more than summarise the submissions made by Mr Vincent, the consultant then representing the Respondents. Paragraph 20 is the first half of the Tribunal's consideration of the submissions that were made by Miss Butler and Mr Vincent. In our judgment, one cannot divorce paragraph 20 from paragraph 21, nor can one properly join together paragraphs 19 and 20. Paragraph 19 is summarising Mr Vincent's submissions; paragraph 20 is the first half of the Tribunal's consideration and decision as to whether or not it is just and equitable to extend the time. It was very properly accepted by Miss Butler on behalf of the Appellant that delay and reasons for delay are amongst the factors that can be taken into account in determining whether or not it is just and equitable. They were one of the factors that Mr Vincent prayed in aid and indeed the short length of the delay was one of the matters that Miss Butler herself prayed in aid. In our judgment there can be no criticism at all of the Tribunal taking the length of delay and the fact that it would have been possible for the originating application to have been made in time into account as a factor.[13]The Tribunal also, no doubt, was swayed by the fact as set out in Mr Vincent's submission that the race issue had not been raised prior to the receipt by the Respondent from the proceedings from the Tribunal and even then the complaint was made as part of a complaint for unfair dismissal and in the most tenuous of terms. The Tribunal was not in our judgment applying the wrong test. What it was doing in paragraph 19, was setting out Mr Vincent's submissions and at paragraph 20, dealing with one aspect of the matters it had to consider when considering whether or not is was just and equitable to allow an extension of time. In paragraph 21 it went on and dealt with the balance of prejudice, which on the arguments addressed to it, was a crucial matter in determining whether or not it was a case in which it would be appropriate to extend time.[14]In our judgment, so far as this first ground of appeal is concerned, there is no substance whatever in the suggestion that the Tribunal was tempted to or did apply the wrong test. It is clear when one reads the decision fairly and reads the whole of paragraphs 18 and 21 together, that the Tribunal was properly applying the proper test. That disposes the first ground of appeal.[15]The second ground of appeal was that the Tribunal erred in fact and its decision was vitiated and was perverse because of the sentence at the end of sub-paragraph 4 of paragraph 21:
"In coming to that decision, the Tribunal took into account the fact that the Respondent is a small non-profit making organisation."
The Respondent is certainly not, at least in the housing association world, a small organisation. It is by its nature a not for profit organisation, but it is as the Applicant pointed out in her grounds of unfair dismissal, the employer of about 300 people. Furthermore, as the Appellant has pointed out to us by producing a page for the 1999/2000 financial results of the Respondent, it is an association which had a surplus on ordinary activities for the year of 9.3 million pounds and a net generation of cash from operating activities of 13 million pounds.[16]In addition, as one learns from the Respondent's answer, it was an organisation which was having to reorganise at the requirements of its auditors and that reorganisation, parts of which were attached to the Respondent's answer, had a proposal for reorganisation of the financial operations department. This showed that that department had a substantial number of employees on various salary scales and that the financial processing department itself contained no fewer than 9 posts. In those circumstances, the use of the words "small" in relation to the Respondent is clearly inappropriate.[17]We have been puzzled at how that word came into the decision. It was suggested at one stage that it might have arisen from a submission made on behalf of the Respondent. There is no such submission recorded in the answer and had the word been used about the Respondent in the face of the Tribunal, we have no doubt at all that Miss Butler, prompted by her client, who knew from her 10 years plus service, the size of the organisation for which she worked, would have been on her feet in an instant to point out that it was inaccurate to describe the FHA as a small non-profit making organisation. We think that the word must have slipped in by error because the panel cannot have been in any doubt as to the substance of the organisation with which they were dealing. The Applicant's own application and the documentation annexed to the answer; all show it to have been very substantial organisation. Doing the best we can, we think that this was just a monetary lapse. The question we then have to ask ourselves is whether given that the Tribunal accepted the matter was "finely balanced",(I assume that "finally" is a mistyping for "finely"), was that a matter which tipped the balance?[18]It has to be observed that the extended reasons, as published appear to have been perhaps less thoroughly proof read and might have been the case. There is at least one passage where 4 words have appeared twice, and there is indeed in the very paragraph which I am dealing, the use of the word "finally". In our judgment the use of the word "small" must be a simple human error. It is inconceivable that the Tribunal went through the day of argument and the careful consideration that it must have involved of all that was put before it, under the impression the Family Housing Association was a small non-profit making organisation. In our judgment the correction of the decision by the omission of that one word would have made no difference whatsoever to what seems to us to have been the inevitable outcome of the hearing before the Tribunal.[19]We should add this; that even had the matter been allowed to proceed there is every indication that it was an absolutely hopeless claim. Miss Butler was constrained in the face from some questions from the Employment Appeal Tribunal to suggest that the race discrimination against her client, which she said, resulted from her client being the only person whose post in the Financial Operations Department was disestablished was because the auditors who produced the proposal for the reorganisation had chosen to target her client on the grounds of her race as being the one person to be made redundant. The very statement of that case makes it unlikelihood seem apparent.[20]In our view therefore, the Employment Tribunal was right in the decision that it came to, and its decision cannot be attacked on the basis that there was any error of fact which adversely affected the decision. In the long run, we believe that the decision has almost certainly saved the Appellant, good deal further expense and heartache, quite apart from the expense that has been saved to the FHA from not having to deal further with this matter so that it can return to getting on to what it is supposed to do in providing non-profit housing.[21]In the circumstances, our judgment is that the appeal should be dismissed.