CEDAR ENTERPRISES SOLUTIONS LTD v MR M Q JOSEPH [2003] UKEAT 3_03_3101

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 3_03_3101

Case No Appeal No. EAT/3/03

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

CEDAR ENTERPRISES SOLUTIONS LTDAPPELLANT

MR M Q JOSEPHRESPONDENT

Before

His Honour Judge J McMullen

Date 31 January 2003

[1]APPEARANCES For the Appellant MR A SOLOMON (of Counsel) Instructed by: Messrs Kimbells Solicitors 352 Silbury Court Silbury Boulevard Milton Keynes MK9 2AF For the Respondent The Respondent in person HIS HONOUR JUDGE J McMULLEN QC This is an appeal from the Decision of a London South Employment Tribunal, Ms C E Taylor Chairman, given on 16 October, and promulgated with Extended Reasons on 8 November 2002. It is an appeal by the Respondent in those proceedings and we will continue to use the term "Applicant" and "Respondent".

[2]The Applicant was employed by the Respondent from 13 October 1997 until he was dismissed on 6 March 2002. He was a pre-sales technical consultant to this software IT company. The Applicant made claims of unfair dismissal, unfair selection for dismissal and racial discrimination, by an Originating Application, which he signed and dated on 4 June 2002, but which was not presented to the Employment Tribunal until 8 July 2002. The date for the presentation of all of these claims therefore was 5 June 2002.

[3]The Applicant contended that on 24 June 2002, he had been informed by an unnamed former colleague of a racist remark made by an officer of the Respondent. Fortified by that, he presented his claim. The Employment Tribunal heard the case as a preliminary issue on time. The finding was that the complaint of unfair dismissal was presented outside the applicable time limit; that it was reasonably practicable for him to present it within the three months time limit, that it was not just and equitable to consider his complaint, and therefore it dismissed the unfair dismissal claim. No appeal has been raised about that.

[4]It then went on to say that it was just and equitable to consider the Applicant's complaint of unlawful race discrimination. It made reference to section 111(2) of the Employment Rights Act 1996 and section 68(1) of the Race Relations Act 1976. It did not notice that there is a distinction between the two, which is important. It applied the correct test to the claim of race discrimination. Section 68(1) provides as follows:

"An employment tribunal shall not consider a complaint ….. unless it is presented to the tribunal before the end of - (a) the period of three months beginning when the act complained of was done …. (6) A court or tribunal may nevertheless consider any such complaint ……which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

[5]Reasonable practicability is the test for the primary limitation period in the Employment Rights Act for the purposes of unfair dismissal claims, and that primary limitation may be extended to such period as is reasonable. The Tribunal thus got the correct test for the race claim but the incorrect test for the unfair dismissal claim, applying the just and equitable approach to both. The essence of the Tribunal's judgment is that the Applicant had learned from an unnamed colleague that there may have been race discrimination, constituted by a remark.

[6]The Respondent contends that the Tribunal reached a perverse decision, alternatively, it extended time in order that evidence could be gathered on a claim which had already crystallised, and failed to make findings of fact which it should have done. The hearing set down for 4 February 2003 prompted directions from the EAT so that this appeal could be heard in time to allow the hearing to go ahead next week, if that were its view.

[7]Mr Solomon, who has appeared today, and Mr Joseph have been of great help to us. We note from the evidence before the Tribunal that the Applicant has a law degree from the University of London. The notes to which we referred are those taken by Mr Solomon of his own cross-examination and of questions from the Tribunal members which are recorded in typed form, and which have been admitted without objection by Mr Joseph, since he fairly says he does not really take issue with them. They were clearly taken while questions were being asked of the Applicant while he was in the witness box, and would therefore be fairly comprehensive. We make allowances for the fact that answers recorded by Mr Solomon while he was, figuratively, on his feet, may perhaps be less comprehensive. Anyway, no issue has been taken, substantively, with those notes.

[8]The law which we apply is to consider whether the Decision of the Tribunal is one which no reasonable Tribunal could have come to in extending time. Authorities have been placed before us, including Clarke -v- Hampshire Electro-Plating Co Ltd

[1992] ICR 313

and Hutchison -v- Westward Television

[1977] ICR 279

. In the former, the EAT was asked to consider an appeal relating to material which had come to light after the relevant limitation period had expired. Mr

Justice Wood P said this:

"So the first issue was, what was the date of the act complained of? But of course that phrase, in our judgment indicates that there was at that time an act of discrimination and that the cause of action could properly be said to be complete at that time, because otherwise there would be no point in bringing proceedings. So the first question in this case is, did the employee have a cause of action on 25 April 1989? It was not, did he feel that he had suffered discrimination on 25 April 1989? If the cause of action had not crystallised, then of course on the facts of this case, as indeed it seems to have been conceded in front of the industrial tribunal, the date of 4 September, with the appointment of the white man would have crystallised the cause of action by providing the comparison. If however there was in this case a cause of action which had crystallised on 25 April then it seems to us that in exercising the issue of discretion under section 68(6), the approach of the industrial tribunal should be to consider whether in exercising its discretion it was reasonable for the employee not to realise that he had a cause of action or, although realising it, to think that it was unlikely that he would succeed in establishing a sufficient prima facie case without evidence of comparison."

[9]Mr Solomon advances his arguments as follows:(1) Perversity He says, with force, that the error by the Tribunal in its approach to section 111 of the Employment Rights Act indicates a failure of a consistent approach. Since the Tribunal found it was not just and equitable to extend time for the unfair dismissal case, applying that same test to the race discrimination claim should have yielded the same answer. That is a question of perversity. We agree. The Tribunal has failed to give an adequate account of the distinction when applying what it thought to be precisely the same legal language. This Decision cannot stand, therefore, since it is perverse by being internally inconsistent.

(2) Failure to make findings or to take into account certain matters The contention is that the Applicant knew, or at least suspected, almost a year before this claim arose, that he was being discriminated against on the grounds of race. The answers which he gave to the members of the Tribunal when questioned showed that either in 2000 or in 2001, it was in his mind that he was being treated in the way he was because he is black. It is further contended that the Applicant knew about race discrimination sufficient to invoke Employment Tribunal proceedings, as at the date he signed the Originating Application, which is one day before the time limit expires.

[10]In answer to questions from the Tribunal, he acknowledged that he had completed that form on the day and put in all the answers to the boxes in manuscript himself. Today, he has suggested that he put in the answer on race discrimination at a different time. That is inconsistent with the version of events he gave to the Tribunal, and we consider the Tribunal cannot be said to have come to an incorrect answer. Therefore, the Applicant was fully seised of an intention to proceed on the grounds of race discrimination before the expiry of the time limit. That therefore ought to have been a finding made by the Tribunal.

[11]Applying Clarke -v- Hampshire , the crystallisation of the Applicant's case must have been by the date of his dismissal, if not earlier. What happened later, on the Applicant's account, is that he received further evidence to support his suspicion and to bolster the claim which he made on the Originating Application. We find any claim he has for discrimination on the grounds of race crystallised on or before the date of his dismissal, 6 March 2002 and the later information about this is simply a matter of evidence gathering. The Tribunal failed to make that connection. In substance, we accept the submission that the Decision of the Tribunal amounted to an error of law.

[12]A further submission made by Mr Solomon was not pursued, that is that the Tribunal erred in considering unattributed hearsay evidence, since as his Notice of Appeal makes clear it is a matter of weight and does not give rise to a question of law. In those circumstances, the appeal is allowed.

[13]Having invited submission as to how this case should be disposed of, we have come to the conclusion that we will reverse the Decision of the Employment Tribunal and substitute a Decision of our own, which is that the application based on race discrimination was presented out of time and it is not just and equitable for time to be extended. In doing so, we make no comment on but simply note the submission of Mr Solomon that, on the evidence thus far, the Applicant does not have even a prima facie case of race discrimination and it seems unlikely that it would get better, since the case, as he told us, depends largely on the unnamed witness coming forward for him. If he or she does not, notwithstanding efforts made by Mr Joseph hitherto to get them there, then his case may really be insubstantial. It is not necessary for us to make any comment on that matter.

[14]Thank you very much Mr Joseph, we are going to refuse you permission to appeal to the Court of Appeal; there is not a substantial point of law with a reasonable prospect of success.