Appeal No. EAT/289/92
	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 27th July 1992

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MR A D SCOTT

	MR G H WRIGHT MBE

MR SUNIT ROY	APPELLANT

FULLEMPLOY GROUP LIMITED	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR A K SEN
(Of Counsel)
Messrs Simmons
Clarendon House
125 Shenley Road
Boreham Wood
WD6 1AG

	

	MR JUSTICE WOOD (PRESIDENT):  On the 24th April 1991 Mr Sunit Roy filed a Notice of Application before industrial tribunals alleging racial discrimination by his former employers Fullemploy Group Limited.  An Industrial Tribunal sitting at London (South) on the 28th February 1992 decided that it did not have jurisdiction to hear that application.

	That Group deals of course with employment.  Mr Sunit Roy, the Applicant, was the Chief Executive of that Group.  He worked for them from the 1st September 1989 until the 18th July 1990, on that date his employment was terminated.

	The allegation of racial discrimination is summarised in paragraph 8 of his Originating Application where he pleads:
"By dismissing the Applicant and employing Clyde Williams, in his place the Respondents have unlawfully discriminated against the Applicant on the grounds of his race."

Mr Clyde Williams was of Afro-Caribbean origin.  On the 18th July 1990 the Applicant had had a meeting with the Chairman of the Company Mr Stephen O'Brien;  according to the Applicant he was told on that occasion, that the Company had come under pressure to replace him as Chief Executive with an employee of Afro-Caribbean origin and that the Directors had already appointed Mr Clyde Williams.

	As we have been told today by Mr Sen, Mr Sunit Roy was aware, as he must have been, of racial tensions and so the situation is this, that at the time of his dismissal Mr Sunit Roy was the Chief Executive of a Company dealing with employment, aware of racial tensions;  aware that he was being replaced, summarily one might say, by Mr Clyde Williams who was of Afro-Caribbean origin and had been told by the Chairman that the Company was under pressure to replace him with such an employee.

	At the hearing before the Industrial Tribunal Mr Sunit Roy gave evidence, the Company did not appear.  At the beginning of paragraph 3 of the Decision the Tribunal find this:
"According to the applicant's evidence he did not commence proceedings upon the grounds of racial discrimination earlier than 1991 because the respondents were in financial difficulties.  He believed that he was replaced because of Home Office pressure upon the respondents."

so that some evidence to support that finding must have been given.  The Tribunal found that there was no valid reason why the Applicant could not have brought proceedings within the three months of the termination in the light of the information then before them and they also considered that it would not be just and equitable to extend the time.

	Mr Sen, who appears for Mr Sunit Roy before us today, has made two criticisms of the finding of the Industrial Tribunal.  The first is that the Tribunal mentioned the High Court proceedings and that they were wholly irrelevant to the deliberation which it had before it.  Those High Court proceedings had been started by Mr Sunit Roy on the basis of wrongful dismissal.  In other words he was alleging that there was a breach of contract and that in those proceedings there was no need to allege any racial discrimination.  The Tribunal do mention those proceedings in this way, they say:
"The Tribunal heard his evidence and have borne in mind that there are already High Court proceedings in which these matters are likely to be fully ventilated."

but having made that comment we do not see that that comment affected their decision in any way and we see no grounds for criticising them for mentioning that.

	The second matter is this.  Mr Sen submits that Mr Sunit Roy did not have sufficient information before him upon which to bring proceedings alleging racial discrimination at the time he was dismissed or within three months thereafter.

	A number of letters are placed before us, the first is a letter from the Chairman, Mr Stephen O'Brien of the 18th July 1990, informing Mr Sunit Roy that his contract was to be terminated.  It refers, in its last paragraph, to "all the extraordinary difficulties, stresses and strains which we have all faced".  It seems to us that that clearly refers, amongst other things, to the racial problems.  Then in his reply of the 19th July the Applicant says in the third paragraph:
"As you are aware I was prepared also to see Fullemploy through the initial phases of consolidation development, but you inform me that the Home Office already appointed Clyde Williams as the next Chief Executive to take over from September 1990 and therefore the Board wish to terminate my contract of employment as the Chief Executive."

So it is quite clear not only that he stated this was mentioned in conversation, but that he was aware of that step that was taken.  There was also a notice "To All Staff" of the 19th July which again emphasises the change in Chief Executive.  However, it is said, and so submitted by Mr Sen, that it was not until a letter of 6th March 1991 came to light in the High Court proceedings that there was sufficient evidence upon which a claim for racial discrimination could reasonably have been brought.  In that letter the Solicitors for the Company say:
"We believe that you will concede that whether or not Mr Roy or our clients breached the contract there is no doubt that because of circumstances partly beyond the control of Mr Roy, namely the appalling race tensions within Fullemploy which led to the loss of confidence in him, it was essential he was replaced as a failure to replace him would have led to the imminent collapse of Fullemploy."

It seems to us that that is merely referring to matters which were already well within the knowledge of Mr Sunit Roy.  The Tribunal clearly so thought, it reached its decision on the facts having seen and heard Mr Sunit Roy, and we must emphasise that we have clearly not had that advantage.  But it seems to us that there was ample evidence upon which he, in his position, with his experience, should have been able to recognise this as pointing to racial discrimination had he so wished to make that allegation.

	We seek in this preliminary hearing to identify a point of law which merits argument inter partes, we are quite unable to find any error of law in this decision and this appeal is dismissed at this stage.