Appeal No.	 EAT/364/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 May 2000

Before
THE HONOURABLE MR JUSTICE NELSON
LORD DAVIES OF COITY CBE
MISS S M WILSON

MR KEITH ANTHONY WELCH	APPELLANT

MR DAMIEN MAGEEAN	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS J SWAIN
Solicitor
Instructed by:
ELAAS	

JUSTICE NELSON: 

1.	This is a preliminary hearing ex parte in which a full hearing is sought in respect of the appeal against the Employment Tribunal’s decision of 25 February this year when it decided that it had no jurisdiction to consider the applicant’s complaint of racial discrimination.  Ms Swain, who appears on behalf of the Appellant, seeks leave to amend the Appellant’s PHD form, seeks the Chairman’s notes of the decision, so as to enable the Appellant to learn the reasons in detail and thirdly submits that there is a properly arguable point here to go to a full hearing.  The Appellant was employed as a Charge Nurse from 23 February 1976 until 31 March 1999 by his employers in the Health Service the East Kent Community NHS Trust Latterly.  The person directly in charge of him Mr Damien Mageean is the Respondent to his application.  After the Appellant left on 31 March 1999 the time limit for any proceedings under the Race Relations Act expired three months after that on 30 June 1999.  In fact the Applicant issued his originating application, presented it to the Employment Tribunal until 25 November 1999, some 5 months outside the statutory time limit.  In the decision of the Chairman who heard the matter, he said that the Applicant had told him that following the termination of his employment he was upset and depressed.  

2.	He did go to the Citizen’s Advice Bureau but he did not take any steps about making any claim until around November 1999 when he went to a solicitor and was then told of the three month limit.  The Applicant told the Chairman that he thought that he had 1 year and 1 day in which to make a claim, not three months.  It is indeed upon that basis that Miss Swain contends that this matter should go to a full hearing, namely that ignorance of the time limit is on the facts of this case an appropriate basis for saying that an extension of time should be given so as to enable the Applicant’s originating application to be heard.  She concedes the fact that there is much authority to the effect that ignorance of time limits is not in fact a defence, but submits that where it was not reasonably practicable to bring it within a time limit, those authorities do not apply and that it can be appropriate for the Court, in exercising its discretion as to whether it is just inequitable to do so, to decide to extend the period.  Her grounds for saying that are that when the Applicant went to the Citizen’s Advice Bureau he was, as is described in the Chairman’s decision, some-what upset and depressed and this depressed state did not enable him fully to apprehend that which he was told.  We are also told that a solicitor who he consulted failed to inform him that the time limit was one of three months when he should have been so told and that in those circumstances, it was not reasonably practicable for him to bring his application within time.  The way that on the matters put before him the Chairman dealt with it was to say this: 
4. “The statutory time limits have been set out by Parliament for good reason and particularly to ensure that claims are prosecuted without undue delay.  In a case such as this, we do have discretion and we have to consider whether or not it is just and equitable to extend the time limit.  We have listened to the Applicant’s evidence we have considered the reasons for the delay, the opportunity that the Applicant had to seek advice and we have given some consideration to the merits.”
5. In all the circumstances, we do not consider it is just and equitable to extend the time limit.  We find that this claim was presented out of time and the Tribunal has no jurisdiction to consider the complaint.”
3.	We are satisfied that the Chairman in making that decision and stating it made no error of law but correctly applied the law to the facts of this particular case.  It was a decision in respect of which it cannot be properly said that any error was in fact made.  The matters that have been put before us today do not, though the substance of many of them appear to have been before the Chairman when he made his decision, what has been put before us today does not alter that situation.  There is no proper basis for saying that the decision was wrong and any error was made.  Lastly, it is submitted that under article 6 of the convention under the European Court of Human Rights provides the right to have a fair hearing and that was denied here. It is without doubt right, but a fair hearing must be one, which is fair to the Applicant and fair to the Respondent.  We are satisfied that the hearing was fair; the Chairman properly considered all the matters put before him and came to a balanced and correct decision as to what was just and equitable in all the circumstances and the appeal must therefore, for that reason be dismissed.