Appeal No. EAT/929/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 February 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR D J JENKINS MBE
MISS S M WILSON

MR N ISLAM	APPELLANT

LONDON PENSIONS FUND AUTHORITY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

	The Appellant in person 	

JUDGE PETER CLARK

1	The Appellant, Mr Islam, is a highly qualified academic.  He holds a BSc degree and 2 MScs.  He embarked on a Phd course which he was unable to complete due to lack of funds.  He is of Bangladeshi national origin.  

2	On 19 March 1984 he commenced employment with the former Inner London Education Authority (ILEA) in its Youth Service.  On 8 September 1986 he transferred to the Education Welfare Service.  It seems that towards the end of his employment he was the subject of disciplinary proceedings which culminated in a recommendation for his dismissal by a disciplinary panel on 5 December 1989, a recommendation which he vigorously challenged.  

3	Before that recommendation could be acted upon the ILEA was abolished on 1 April 1990.  Consequently, he was dismissed on grounds of redundancy on 31 March 1990.  

4	Thereafter, he pursued a claim for outstanding holiday pay, first with the London Residuary Body (LRB) and subsequently the London Pensions Fund Authority (the LPFA), the present first Respondent, who successively took over the relevant ILEA responsibilities.  In particular, we have seen within our papers his detailed letters concerning the claim dated 14 March 1992, 23 August 1994, 31 October 1995 and 26 June 1996.  Mr Islam tells us today that he wrote some eight or ten letters between 1990 and 1996, when eventually he was paid what he regarded as his entitlement. 

5	On 16 November 1999 he presented an Originating Application to the Employment Tribunal alleging unfair dismissal by ILEA on 31 March 1990, and unlawful direct racial discrimination by the employer, in particular alleging a conspiracy against him by two of the named Respondent employees, Pauline Bailey, his Team Leader and the DDSNM (Social Work) Andrew Chapman. 

6	By a Notice of Appearance entered by solicitors on behalf of the LPFA, it was pointed out that the claims of both unfair dismissal and racial discrimination were submitted more than nine years out of time, the relevant employment having ended, it was common ground, on 31 March 1990.  

7	The limitation point was taken as a preliminary issue at a hearing before a Tribunal sitting at London South, under the Chairmanship of Mr A Bano, on 22 March 2000.  By a decision with Extended Reasons promulgated on 31 March, the Tribunal found:

(a) that the complaints were out of time: the primary limitation period expired on 30 June 1990.
(b) That it was reasonably practicable for the Appellant to present the complaint of unfair dismissal within time.  Alternatively that if not, the Appellant did not present this complaint within a reasonable time thereafter - Employment Rights Act 1996  section 111(2).
(c) That it was not just and equitable to extend time for presenting the complaint of unlawful racial discrimination - Race Relations Act 1976 section 68(6).

8	In reaching those conclusions the Tribunal took into account the Appellant’s explanation for the nine year delay in presenting his complaints, summarised at paragraph 4 of their Extended Reasons.  

9	Against that decision Mr Islam now appeals.  We have pointed out to him that our jurisdiction is limited to correcting errors of law - Employment Tribunals Act 1996, section 21(1).  The question as to whether it was reasonably practicable to present his complaint of unfair dismissal in time is largely a question of fact for the Tribunal - see Palmer v Southend Borough Council [1984] ICR 372 (Court of Appeal); the Tribunal has a wide discretion to determine whether or not it is just and equitable to extend time for a complaint of racial discrimination - see Hutchison v Westward Television Ltd [1977] ICR 279.  

10	In advancing this appeal, Mr Islam complains of a procedural irregularity on the part of the Tribunal which heard his case.  We should say that an application for review of the Tribunal’s decision was, in turn, dismissed by the Chairman under the provisions of Rule 11(5) of the Employment Tribunals Rules of Procedure 1993 on the grounds that it had no reasonable prospect of success, by a letter dated 4 May 2000.  

11	The principal complaint set out in an affidavit sworn by the Appellant on 10 October 2000, in connection with these appeal proceedings, is that the Tribunal below did not consider all the documents which he had submitted in support of his case.  In particular he there refers to three letters which are contained in paragraphs 49 - 51 of the bundle of papers before us.  In answer to that specific allegation the Chairman, who was provided with a copy of the affidavit, responded by a letter dated 26 October 2000 in which he said in terms that the documents referred to in paragraph 3 of the affidavit  are on the Tribunal’s file and the Chairman recalls that the Tribunal considered them as documents.  

12	That is the answer to the complaint, but for completeness, we should say that we have, ourselves, considered those three letters, dated 18 December 1989, 11 January 1990 and 1 June 1990, and in our judgment, it is difficult to see that they add materially to the burden of the Appellant’s case, which is that he was unable to present his complaint within nine years, prior to the date of presentation on 16 November 1999, for a number of reasons, particularly his medical condition, the fact that he had been engaged for some years in correspondence with the successor bodies to the ILEA over his holiday pay claim, and finally, the difficulties which he encountered with his mortgagor, which sought possession of his home, those proceedings having ended in October 1999, whereupon he promptly commenced these proceedings.  

13	We have invited him to identify clearly the error of law on which he relies in arguing this appeal, and with great respect to Mr Islam, he has failed to do so.  What he has asked us to do is to exercise afresh the discretion which Parliament has entrusted to the Employment Tribunals.  We cannot and will not do that.  In the absence of any arguable point of law to go forward to a full appeal hearing, we are driven to conclude that the only proper course is to dismiss this appeal now and we so order.