SANDERS DRAPER SCHOOL AND OTHERS v MR ED PHELAN [2005] UKEAT 0906_03_1803

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0906_03_1803Case No Appeal No. UKEAT/0906/03 & UKEAT/0897/04/RNVenue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
SANDERS DRAPER SCHOOL AND OTHERSAPPELLANTMR ED PHELANRESPONDENT
Before
His Honour Judge Prophet Mr R Lyons Mr B M WarmanDate 21 April 2004
[1]APPEARANCES For the Appellants MR BENJAMIN BURGHER (of Counsel) Instructed by: London Borough of Havering Ballard Chambers 26 High Street Romford Essex RM1 1HR For the Respondent MISS K V REECE (Solicitor) Messrs Slater Ellison Solicitors 22/24 Broad Street Bury BL9 ODA SUMMARY Time Limits / Practice and Procedure Employment Tribunal considering preliminary issue on time limits for presentation of complaint of race discrimination - 6 months out of time - issue of credibility not properly dealt with by Employment Tribunal either originally or on review - consequently appeal allowed on error of law, and case remitted for rehearing. HIS HONOUR JUDGE PROPHET Mr Phelan worked as a teacher at the Sanders Draper School in Hornchurch where he was the Head of Religious Education. Mr Phelan is Jewish. His employment at the school ended on 31 August 2002. On 17 June 2003, that is to say over nine months thereafter, he presented a complaint against his former employer under the Race Relations Act 1976 to the Employment Tribunal at Stratford, which was resisted by the employer. We understand although we have not seen the Order that the Employment Tribunal gave directions for there to be a preliminary hearing on the issue of whether Mr Phelan's complaint could be heard on its merits having regard to the time limits contained in Section 68 of the Race Relations Act 1976[2]An Employment Tribunal, with Ms Jones as the Chairman and Mr Lane and Mrs Osamor as the lay members, held a hearing on that matter on 1 September 2003. The outcome was an unanimous decision by the Employment Tribunal that although Mr Phelan's complaint had been presented well outside the three month time limit set down by 68 (1) of the Act, it should nevertheless go forward to be heard on its merits. The Employment Tribunal was thereby applying Section 68 (6) of the Act which states:
"A Tribunal may nevertheless consider any such claim which is out of time if in all the circumstances of the case it considers it just and equitable to do so."
[3]The employer lodged an appeal against that decision, and the President of the Employment Appeal Tribunal, Burton J, in an Order dated 17 November 2003 directed that the appeal should be dealt with at a full hearing of the Employment Tribunal. As constituted to conduct that full hearing, we first met on 21 April 2004. Mr Burgher, of Counsel, represented the Appellant and Miss Reece, Solicitor, represented Mr Phelan. Since then we have reconvened twice with today's hearing finalising the appeal proceedings.[4]It is necessary to explain what has brought about that delay. Our initial approach was to recognise that Section 68 (6) both in its wording and by subsequent judicial authority conveys a wide discretion on Employment Tribunals and that we would require considerable persuasion before we would consider interfering with the Employment Tribunal's exercise of that discretion, bearing in mind as Miss Reece reminds us, that the Employment Tribunal hears the evidence.[5]However, it was clear from reading the Extended Reasons given for the Employment Tribunal's decision following its hearing on 1 September 2003, that contained in the Employment Tribunal's judgment was a finding that Mr Phelan's union had not responded for some six months to Mr Phelan detailing his complaints in the course of seeking advice from his union, and that that was understood by the Employment Tribunal to be a major factor in explaining why Mr Phelan had allowed so much time to elapse before lodging his complaint to the Employment Tribunal. That detail was contained in a 10,000 word document prepared by Mr Phelan.[6]A principal ground of appeal was that the Employment Tribunal had been misled by Mr Phelan in that the copy of that document which he presented to the Employment Tribunal, and which was undated, was in fact a copy of one presented by him to Mr Passingham, the union official, not in autumn 2002, as Mr Phelan was asserting, but in March 2003. That, if true, could make a significant difference in respect of alleged delay by the union. There was, on the face of it, confirmation of that in paragraphs in that copy which included a reference to eight months' worth of pension payments and other matters which would indicate a date for that document in March 2003.[7]Going back to the reasons and the Employment Tribunal's decision, we find the Employment Tribunal saying at paragraph 10:
"In June 2002 he, that is to say Mr Phelan, was asked by Mr Passingham for full details of his complaint against the school. The applicant supplied the union with a bundle of documents amounting to 10,000 words which detailed his complaints."
No date is there given as to when the 10,000 word document was supplied but any one reading that would understand the Employment Tribunal to be finding that it was supplied fairly shortly after June 2002. It seemed to us, therefore, at the first Hearing of this Appeal, that there was some likelihood that the Employment Tribunal had not appreciated that the undated copy presented to it by Mr Phelan was not an identical copy of the document which Mr Phelan said he had sent to Mr Passingham in 2002.[8]Consequently, we decided that that matter should have the attention of the Employment Tribunal through the review process if that was possible and we adjourned the first Hearing at this Tribunal for that purpose. One of the matters we specifically referred to the Employment Tribunal was this question:
'What was the Tribunal's understanding as to the 10,000 word document handed to it by Mr Phelan on 1 September 2003 in relation to Mr Passingham's request for the full details of his complaint?'
[9]That review process has duly been completed and the Employment Tribunal decided to confirm its original decision. A further appeal has been lodged against the Review decision, which we will also consider as part of the appeal before us.[10]When we re-convened on 8 February 2005 with the benefit of the Review Decision and Reasons, further matters troubled us. At the Review hearing, the union official, Mr, Passingham who had not given evidence at the first Hearing, strongly denied that he had ever received a 10,000 word document from Mr Phelan in 2002 and that the first and only such document was one dated 4 March 2003 which he did receive on 10 March 2003. He had with him his file, and from that it was indicated that there was a clear gap between 11 July 2002 and 1 April 2003 in respect of any contact between Mr Phelan and himself. He produced a letter of 3 April 2003 which states "If he (that is Mr Phelan) had sent documentation when requested, that is in June 2002 I could have dealt with the issue at that time."[11]As Mr Burgher says to us, the Employment Tribunal do not refer to these matters in their Review Hearing reasons. At the Review Hearing Mr Phelan produced yet another version of the 10,000 word document, this time dated 2 October 2002 with changes to the first line from "last year" to "in June this year". This one was rejected by the Employment Tribunal as being the one sent in response to the June invitation. So the question remains where did that one come from?[12]Consequently on 8 February 2005, as a final attempt to have all available information on these troublesome matters before us, we sought and obtained the Chairman's Notes of Evidence in respect of the Review Hearing and these have been supplemented by a thorough note taken by Sarah Mann, a locum lawyer, who attended the Review Hearing on behalf of the employer. We have had the benefit of further submissions today from both Mr Burgher and Miss Reece relating to the content of those notes.[13]We have considered this matter with considerable care because we well appreciate Miss Reece's urgings to us that these matters have already become protracted and that finality in litigation is an aim for us all. The outcome from our part, and it is unanimous, is that the concerns which we had at the first Appeal Hearing have not been met by what has transpired since. Indeed if anything they have been strengthened. The Employment Tribunal did not in its Review Hearing specifically answer the question that we set out above and which we put to them.[14]The Employment Tribunal has never satisfactorily sorted out why the version of the 10,000 word document which was presented to it by Mr Phelan at the original hearing and which the Employment Tribunal clearly thought was the one that Mr Phelan was saying had been sent in response to Mr Passingham's request in June 2002 was in fact identical to one sent in March 2003, or why Mr Phelan at the original hearing made no mention of having sent a copy of the 10,000 word document to Mr Passingham in March 2003, or why there was no reference in that later version to there having been an earlier one. The Employment Tribunal reasons in the Review Decision do not satisfactorily explain these matters or properly address serious issues of credibility which arise in this case.[15]It is apparent that the matter of alleged union delay clearly played an important part in the Employment Tribunal allowing the case to proceed notwithstanding that the complaint was over six months out of time. In our view to leave matters as they are runs a serious risk of injustice. If the Employment Tribunal does not adequately address important issues before it, it may be necessary to conclude that its Decision contains an error of law and is unsafe. We are satisfied that that is the position here.[16]Accordingly, and notwithstanding that this will cause further unfortunate delay, our unanimous conclusion must be that the appeal be allowed, that the judgments of the Employment Tribunal both originally and on review be set aside and the time limit issue be remitted for re-hearing to a newly constituted Employment Tribunal at Stratford. We so order.