WEST MIDLAND LAMINATING COMPANY LIMTED v MR J W HARVEY [2002] UKEAT 733_01_2005

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 733_01_2005

Case No Appeal No. EAT/733/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

WEST MIDLAND LAMINATING COMPANY LIMTEDAPPELLANT

MR J W HARVEYRESPONDENT

Before

His Honour Judge D M Levy

Date 20 May 2002

[1]APPEARANCES For the Appellant MR C W WILSON Representative For the Respondent MS E MELVILLE (of Counsel) Instructed by: Messrs Thompsons Solicitors The McLaren Building 35 Dale End Birmingham B4 7LF JUDGE D M LEVY QC This is an appeal by West Midlands Laminating Company Ltd ("the Appellant") from a Decision of an Employment Tribunal held at Birmingham on 12, 13, 15, and 16 March 2001. The Decision ("Merits Decision") was promulgated on 1 May 2001. The unanimous Decision of the Tribunal was that the claim of J W Harvey that he has been unfairly dismissed failed, but the claim that he had been subjected to racial discrimination by the Appellant succeeded.

[2]As a result of the second holding, the Respondent was in due course awarded a monetary sum and there is no appeal against the sum awarded. What the appeal concerns is whether the Tribunal was right in the Merits Decision to extend time in respect of which the allegations of racial discrimination could be raised. The Appellant appealed by notice dated 6 January 2001. The ex parte hearing of the appeal took place on 26 October 2001. The EAT panel dismissed two of the Appellant's grounds of appeal and allowing one to go forward. This then led to an amended Notice of Appeal dated 9.11.2001 and of the Respondent's answer dated the previous day.

[3]What is encompassed in the appeal is of very short scope. Essentially, what happened was that the Respondent, during his employment with the Appellant, as the Tribunal found, was subjected to racial abuse. He did not complain of it until his employment had ended, but the Tribunal, in the final paragraph of its Decision said this:

"The conclusion of the tribunal was that there was evidence that the applicant had been subject to racial discrimination by the respondents in the way that he had been treated in particular by Gary Swan and to the extent that there were specific occasions when the applicant had been otherwise subject to discriminatory action, in particular by Martin Smith in his derogatory racist jokes, the tribunal considered whether it would be appropriate to exercise its discretion to allow the applicant to proceed with those claims, notwithstanding that they had been presented outside his statutory time limit. The tribunal took account of the fact that the applicant was employed in a relatively small company with a small management structure. Although he had had confidence in the previous Works Manager up to his departure at the beginning of 1999, once Mr Swan was appointed as Works Manager and he was then faced with a management structure which otherwise comprised Martin Smith who was the son of the Managing Director, the tribunal accepted it would have been extremely difficult for the applicant to have been able to pursue a complaint of racial discrimination, either through his immediate manager or through the Managing Director, with any degree of confidence that it would have been dealt with satisfactorily. His decision therefore to refrain from pursuing the matter formally until he had been dismissed in the tribunal's view justified the exercise of their discretion to [allow] the claim to proceed and to be included in the assessment of any compensation."

[4]There is one unfortunate hiatus in the Decision. It is quite clear that the date of the effective date of termination of the Respondent's employment was 3 March 2000; the date of dismissal in the context of this case, is not the date when the earlier decision was made that he should leave his employment. Such earlier dates may be relevant to the issue of dismissal, but not necessarily to the decision to extend time for raising complaints of racial discrimination.

[5]The hearing on quantum took place on 18 July and was promulgated on 24 July 2001. The Extended Reasons on this matter contained these paragraphs:

"3. The tribunal heard evidence that the applicant had found it difficult to deal with the issue" [of racial discrimination, with which is what they were dealing] "

He had wanted to keep his job and he had been concerned that, if he had raised a complaint, it would affect his working relationship with his manager. The tribunal took into account the fact that the management structure was one where the Managing Director was a friend of Mr Swan, and indeed was the father of the other manager against who there was a finding of discrimination. 4. Although the applicant was able to discuss his concerns with his family and also with a doctor and with a member of his church, this was an attempt to try and defuse the strong emotions which Mr Swan's behaviour had aroused, rather than to engage in any confrontation with Mr Swan. 5. The position with regard to Mr Swan was one that remained a problem up to the time of the applicant's dismissal by reason of redundancy. The position with regard to Martin Smith was that he had, over a period of time, engaged in offensive behaviour which was also clearly quite public. On seeing the applicant Mr Smith had reacted to him as though he was a potential mugger, making a comment to that effect, and holding up his hands. The office was not enclosed." The Decision then gives other examples of what had happened in the workplace.

[6]It is true that in the Extended Reasons of the Merits hearing did not make such explicit findings but it is clear, for example, that the Managing Director of the company, also acted in the capacity as unofficial Shop Steward for the Respondent. In his witness statement, quoted in the Answer to the Notice of Appeal, he had said:

"….because of a lack of general interest within the workforce in such issues there is no elected internal Union Shop Steward and as I always continued my membership of that Union [the BPIF] I undertook to carry out the collection of subscriptions and any Union negotiations when they were necessary or appropriate"

. Later on in his statement he referred to:

"…….my capacity as unofficial Shop Steward for the company"

. An Employment Tribunal is always reluctant to extend time limits, except where it is absolutely fair and equitable to do so. In this case, we do consider that the Tribunal, after a relatively long hearing in a careful judgment, gave Reasons why it had extended time and were fully entitled to so to do. We take into account, as did the panel hearing the ex parte application of the Appeal at the interlocutory hearing, there may have been other things which Mr Harvey could have done. However, given the factors of this case, which the Tribunal considered, we, having looked at the situation in the round, conclude that the Decision was one which the Tribunal could properly have reached.

[7]We have been referred to two authorities in the course of the hearing, one is the decision of a Tribunal headed by the then President, Mr Justice Morison, Aniagwu -v-(1) London Borough of Hackney

(2) Owens

[1999] IRLR 303

. We note in that judgment from the headnote, 722, page 303, the Employment Appeal Tribunal held that "In finding that it was not just and equitable to extend the time limit for presenting the applicant's race discrimination complaint, the Employment Tribunal erred in failing to consider why the complaint was not presented earlier." The Respondent's failure to present the complaint earlier was considered by the Tribunal below in the Quantum Hearing. Having considered why the failure occurred, in our judgment it was entitled to exercise its discretion as it did. It may be that other Tribunals would not have exercised their discretion in the same way, but this is a matter which if the discretion has been exercised in a way which is not perverse, then this Tribunal cannot interfere with it. We do not consider the Decision of the Tribunal to have been perverse, even if some of us might have come to a different decision, none of this panel would have done. It is not a decision with which we are entitled to interfere.

[8]The other authority to which we have been referred is a very recent decision of the Court of Appeal, not in an employment matter, but a matter where a failure to give reasons was subject to analysis by a judgment of the Court of Appeal presided over by the Master of the Rolls, giving a judgment to which all members had contributed. That is the decision in English -v- Emery Reimbold & Strick Ltd and Others where the decision was handed down on 30 April 2002. In paragraphs prior to paragraph 26, the Court of Appeal looked at the different scenarios where a

judge in a Tribunal or Court were not given full reasons and then at paragraph 26 says this:

"The approach of the appellate court 26 where permission is granted to appeal on the grounds that the judgment does not contain adequate reasons, the appellate court should first review the judgment in the context of the material evidence and submissions of the trial, in order to determine whether, when all these are considered, it is apparent why the Judge reached the decision that he did. If satisfied that the reason is apparent and that it is a valid basis for the judgment, the appeal will be dismissed. This was the approach adopted by this Court, in the light of Flannery in Ludlow -v-National Power PLC 17 November 2000 (unreported). If despite this exercise the reason for the decision is not apparent, then the appeal court would have to decide whether itself to proceed to a rehearing, or to direct a new trial."

[9]In this case we have looked at the material evidence and we have been referred to the submissions of the trial. We are satisfied, having regard to these, even if there is a slight lacuna in the failure to find some facts, in the Merits Decision, the decision to extend time is one which the Tribunal was entitled to reach. We do not find it a perverse decision. In the circumstances, whilst thanking Mr Wilson for his careful and helpful submissions we reject them and dismiss this appeal.