Appeal No.	 EAT/9/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 October 1999
Judgment delivered on 12 November 1999

Before
HIS HONOUR JUDGE J HICKS QC
MR A E R MANNERS
MR G H WRIGHT MBE

MR FRANKLIN EMMANUEL SHAND	APPELLANT

(1) LEICESTERSHIRE COUNTY COUNCIL	RESPONDENTS
(2) LEICESTER CITY COUNCIL	

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR M RYDER
(of Counsel)
Instructed by:
Ms V Phillips
Messrs Thompsons
Solicitors
Congress House
Great Russell Street
London
WC1B 8RA	

For the First Respondent

For the Second Respondent	
MR M WYATT
(of Counsel)
Instructed by:
Mr D Morgan
Leicestershire County Council
County Hall
Glenfield
Leicester
LE3 8RA

MR T LINDEN
(of Counsel)
Instructed by:
Mr F Fernandes
Solicitor
Leicester City Council
Town Hall, New Walk Centre
Welford Place
Leicester
LE1 6ZG

	JUDGE HICKS QC:		The Appellant, Mr Shand, was employed as a social worker.  During the period with which these proceedings are concerned his employer was initially the First Respondent, Leicestershire County Council, but as a result of local government reorganisation that changed and the Second Respondent, Leicester City Council, became the employer.  Although in form the result of the Employment Tribunal’s decision was that the First Respondent was dismissed from the proceedings and the Second Respondent remained none of the issues raised on appeal turns on the change of employer and we shall simply refer to “the Respondents” or “the employers” without distinction.

1.  	On 7 August 1998 Mr Shand lodged a complaint of race discrimination against his employers.  In box 9 of the form of Originating Application, which requires an applicant to give the date when the matter complained of took place, he inserted “11-14 May 1998”, dates just under three months earlier.  In the attached Statement of Case he alleged a number of instances (the earliest in 1994) of being “unfairly treated as a black person”, the initiation by him of a formal grievance procedure in July 1995, the decision on that grievance in December 1996 by a finding that there had been unfair treatment, but not on racial grounds, his appeal from that decision, the hearing of that appeal on 11 to 14 May 1998 and the decision on the appeal, which was essentially to the same effect as that at first instance.  The Statement of Case concludes in paragraph 16: “Having regard to all the circumstances I believed no reasonable employer would have to [sic] come to the conclusions made by the Appeals Committee and the decision was an act of continuing discrimination”.

2.  	At a hearing on 10 November 1998, apparently confined to determining which allegations were in time and what evidence should be admitted at the substantive hearing, Mr Richards of Mr Shand’s union cited Cast v Croydon College [1998] IRLR 318, a case turning on the finding of a policy of discrimination continuing until the end of employment, from which date time would on that finding begin to run.  He referred to the discrimination alleged in the appeal hearing and suggested that the tribunal hearing the case would have to hear all the evidence relating to the original allegations in order to decide whether the appeal panel had discriminated against Mr Shand.  He did not, as we understand Mr Ryder for Mr Shand now to concede and as in any event we find, apply in the alternative for an extension of time under section 68(6) of the Race Relations Act 1976.

3.  	On the submissions made the tribunal’s conclusion, as set out in its Extended Reasons, was as follows:

“5.	We accept that the question of the appeal hearing in May 1998 is the only issue which was presented within three months to the Tribunal. We are satisfied that the applicant is not putting forward an allegation of either a racially discriminatory policy which is continuing or of a continuing course of conduct. It is, therefore, clear that all of the allegations apart from that relating to the May appeal are out of time.”

Against that decision there is no appeal.  

4.  	Immediately after the passage quoted in paragraph 3 above the tribunal continued as follows:

“Under the Race Relations Act 1976 we have to decide whether it would be just and equitable to extend that time. We consider it would be wrong to do so. There is a very long period since the specific allegations and they would undoubtedly be difficult to establish by evidence at this state. In addition, however, the applicant has been represented by his union and was able to put forward a grievance. There seems to us to be no reason why he could not have similarly submitted an application to a Tribunal within a reasonable period. We also take account of the fact that the applicant appears to be trying to get the Tribunal to act as a further state in the appeal process, which is not our function. As we are not prepared to extend the time to include those allegations which are out of time, we are dismissing them as beyond the jurisdiction of the Tribunal and that leaves only the allegation relating to the appeal in May 1998.”

5.  	In consequence the tribunal ruled as follows on the question what evidence could be adduced:

“6.	The only issue relating to that appeal is whether the appeal itself was discriminatory. As a result the Tribunal would not permit evidence to be called to show whether the original acts were or were not acts of racial discrimination as that is irrelevant to any decision the Tribunal has to take. The Tribunal will only be concerned with the hearing itself. …”

It is to be observed that that ruling would have followed equally from the decision set out in paragraph 3 above alone, had the tribunal never embarked upon the question of extension of time.

6.  	Mr Shand appealed.  The only ground of appeal raised in the Notice of Appeal is error of law on the part of the tribunal “in dealing with its decision whether it would be just and equitable to extend time in relation to the allegations apart from the May 1998 appeal”.  There was a preliminary hearing ex parte before a different panel of this tribunal on 3 March, which directed an inter partes hearing on the “essential point” relating to section 68(6).

7.  	In Mr Ryder’s amended skeleton argument dated 27 September 1999 for the hearing before us on 28 September there appeared for the first time a submission that “even on the basis of the Decision as it stands”, or because it was self-contradictory or perverse, the matters to be dealt with at the substantive hearing should “encompass the entire grievance process as alleged”.  At the hearing before us Mr Ryder accepted that this point was not canvassed below and also that he would need to amend the Notice of Appeal to raise it.  He applied for permission to make an appropriate amendment but we rejected that application.

8.  	We therefore turn to the only remaining issue, the question of the tribunal’s refusal to extend time under section 68(6).  Because of the nature of the submissions for the Respondents, however, that issue itself has two distinct parts.  The Respondents say that there was no error in law in the tribunal’s decision but they also - and logically it is a prior point - say that Mr Shand, not having applied for an extension below, cannot now raise the matter on appeal.  We take that point first.

9.  	The situation here lies at the intersection of two general principles, and the question is which is to prevail.  On the one hand this appeal tribunal exists in order to correct errors of law on the part of employment tribunals.  If there has been such an error here, says Mr Ryder (we are not, of course, at this stage deciding whether there has or not), it should accordingly be corrected.  Suppose, he says, the tribunal had refused an extension on a ground not just outside the borderline of legality, but wholly irrational, surely that ought to be put right.  On the other hand there is a clear rule of law that with certain exceptions, none of which would be relevant here, this appeal tribunal should not permit appellants to take points not raised or argued below.  The general authority for that proposition is Kumchyk v Derby County Council [1978] ICR 1116, and it has been applied to a failure to apply for an extension of time under section 68(6) of the Race Relations Act 1976 in Dimtsu v Westminster City Council [1991] IRLR 450.

10.  	In neither Kumchyk nor Dimtsu, however, nor in any other reported case which counsel were able to find, did the tribunal of first instance proceed to deal with and decide the point not raised by the appellant and not argued on either side, of its own motion and without recalling the parties for further submissions.  We must therefore approach the issue as one of untrammelled principle.  Having done so we have concluded that the Appellant is not entitled to take this point.  In reaching that conclusion we have found two considerations particularly persuasive.  The first is that had the tribunal not considered the question of extension of time its order would have been the same and would, on the authority of Kumchyk and Dimtsu, have been unappealable on this ground. In embarking, unasked, upon the question of extension the tribunal was doing something which, if it made any difference to the result, could only do so in the Applicant’s favour.  It would be wrong if he were in a better position, as a result of the tribunal’s decision against him on that question, than if it had rightly never considered it.  The second consideration is that if the tribunal had decided, in these circumstances, to grant an extension, it seems clear to us that the Respondents would have had an unanswerable ground of appeal that it had erred in law in entertaining an application which had never been made, without giving the Respondents any opportunity of calling evidence or making submissions on it, and that its extension of time should be set aside.  Again, the Appellant should not be in a better position as a result of the tribunal’s decision against him than if it had been in his favour.

11.  	Another way of putting our conclusion is that the tribunal did indeed err in law, but that since its error consisted in believing that it “had” to consider and decide a question which was not before it, and in proceeding to do so without any application or argument, its reasons and conclusion on that subject should simply be disregarded, leaving its unappealed decision in the Respondents’ favour on the only question properly before it to stand.

12.  	We therefore consider that the appeal should be dismissed.  It is always wise, when deciding novel points, not to give any appearance of laying down propositions wider than are necessary for the purpose in hand.  We wish, in particular, to make three distinctions clear.  We are saying nothing, one way or the other, about the position which would have obtained had the tribunal raised the question of an extension during the hearing or recalled the parties to make submissions on it.  We are saying nothing which impinges upon the authorities as to the circumstances in which a party is to be understood as impliedly making an application although he or she has not done so expressly; that was clearly not the position here.  We are dealing only with a situation in which the tribunal embarks upon consideration of an issue which it was for one party or the other to raise by way of application; where the point not raised or argued by the appellant but considered by the tribunal is of a different nature - perhaps what might be called a “pure” point of law - the considerations which have impressed us may or may not have the same relevance or weight.

13.  	In case we are wrong in that conclusion we have also considered the second question whether, having embarked upon the question of an extension, the tribunal erred in law in its decision or reasons on it.

14.  	Section 68 of the Race Relations Act 1976, having by subsection (1)(a) directed that a tribunal shall not consider a complaint of this kind unless it is presented before the end of three months after the act complained of, provides in subsection (6) as follows:

(6)  	A .... 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.

15.  	The tribunal’s reasons and decision on this point are set out in paragraph 4 above.  They are brief, no doubt in part because of the facts that the point had not been argued and no evidence directed specifically to it had been led.  The criticism of them, however, concentrated essentially on one point, namely that the tribunal failed to assess the question “in accordance with the principles set out in the case of Aniagwu v London Borough of Hackney [1999] IRLR 303”, a decision of this appeal tribunal.  Aniagwu had not been reported at the date of the decision below, and there can therefore be no personal criticism of the members of the tribunal for not taking it into account, but the Respondents cannot and do not rely upon that as being of any relevance.

16.  	In Aniagwu the appellant had initiated a grievance procedure, complaining of racial discrimination, which was rejected on 20 March 1997, although he was not informed until 26 March.  He appealed but, as the tribunal found, his appeal was not dealt with in a timely manner and on 26 June 1997, before it was heard, he presented his complaint to the Employment Tribunal.  The complaint was as to the dismissal of his grievance, not as to the facts giving rise to the grievance.  The tribunal found that time began to run from 20 March, so that the complaint was seven days late, and they rejected his application for an extension of time under section 68(6).  He appealed.  The Employment Appeal Tribunal allowed the appeal.  It found that time began to run from 26 March, so that Mr Aniagwu was only one day late, and it extended the time so that his substantive application could be heard.  The reason given by Mr Aniagwu for not being in time was that he was hoping that the internal appeal would be dealt with first, in his favour, but eventually became frustrated by the delay.  The delay in the appeal procedure was substantial and Hackney’s fault.  The EAT held that “every tribunal would have concluded that he was well entitled to take the view that it would be sensible to seek to redress his grievance through the internal grievance procedure before embarking on legal proceedings.  That was the position he had made plain to Hackney ....”.

17.  	The passage on which Mr Ryder chiefly relies follows:

“… and it seems to us that every industrial tribunal, unless there was some particular feature about the case, or some particular piece of prejudice which the employers could show, would inevitably take the view that that was a responsible and proper attitude for some one to take, albeit that he had an extant complaint of race discrimination. He was looking to have his grievance resolved rather than to go to law.”

18.  	That is in form general, as Mr Ryder stressed, but like every such statement it must be understood by reference to the facts to which it was being applied.  The relevant facts in Aniagwu were as stated above.  In particular:

(1) 	The “out of time” fact on which the employee sought to rely was the dismissal of his grievance.

(2)	The only internal procedure which he afterwards pursued before applying to the tribunal was an appeal against that dismissal.

(3)	He had “made plain” to the employer the course he was taking and his reasons.
 
(4) 	By inference, had that appeal been dealt with promptly, it would have been complete well before time expired.

(5)	It was not dealt with promptly; the delay was substantial and was the employer’s fault.

(6)	As soon as the employee became “frustrated by the delay”, and without awaiting the disposal of the internal appeal, he lodged his application to the tribunal.

(7) 	He was still only one day late.

19.  	As to each one of those facts the position here was either in sharp contrast or, for lack of any application or evidence, unknown:

(1)	The “out of time” facts on which Mr Shand sought to rely included those from 1994 onwards founding the grievance, as well as the grievance decision itself.

(2)	The internal procedures on which he embarked before applying to the tribunal therefore included both the original grievance and the appeal.

(3) 	There was no evidence or suggestion that the reason why he postponed his application was to await the outcome of the internal procedures, still less that he so informed the Respondents.

(4)	There was no reason to suppose, and no evidence or suggestion that Mr Shand did suppose, that the internal procedures would be complete before time expired.

(5)	There was no evidence or argument as to whether the grievance or appeal procedure was unduly prolonged, or if so by whose fault.

(6)	If there was any delay Mr Shand did not respond by lodging his application when it became apparent; he waited until nearly three months after the appeal decision.

(7) 	The application was some four years after the first acts complained of, some two years and ten months out of time for the latest act which could have founded the grievance procedure and one year and five months out of time for the original grievance decision.

 20.  	We see no reason why the tribunal here should be held to have erred in law because on those very different facts it reached a different conclusion from that arrived at by the EAT in Aniagwu.  The jurisdiction to entertain complaints out of time conferred by section 68(6) is a discretionary jurisdiction and the only absolutely and universally binding rule governing its exercise is that imposed by the statute itself, that the tribunal must “in all the circumstances of the case .... [consider] it just and equitable to do so”.  This appeal tribunal can interfere only if relevant circumstances are not taken into account, or irrelevant circumstances are, or the exercise of the discretion is, in the technical sense, perverse.  We do not understand Aniagwu, therefore, as establishing, or as being intended to establish, any universal rule that whenever internal grievance or similar procedures are followed time for applications in respect of the matters complained of will as of right be extended until three months after completion of those procedures, including any appeal.

21.  	There was one more specific attack on the tribunal’s reasons, although still within the general area of the “Aniagwu point”.  It concerned the sentence: “We also take account of the fact that the applicant appears to be trying to get the Tribunal to act as a further stage in the appeal process, which is not our function”.  That, it was said, not merely failed to apply the Aniagwu principles; it reversed them by holding the completion of the grievance procedure before applying to the tribunal against Mr Shand instead of in his favour.  But, again, statements of that kind must be construed in their context and by reference to the facts of the case.  On the facts summarised in paragraph 19 above it was a perfectly understandable comment on those facts, and not one laying down any general rule or presumption against the extension of time where internal procedures have been followed.  We therefore see no error of law there.

22.  	Had we not dismissed this appeal for the reasons set out in paragraphs 9 to 12 above, therefore, we would have done so for those set out in paragraphs 14 to 21.