Appeal No.	EAT/1404/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 April 1999

Before
HIS HONOUR JUDGE PETER CLARK
MISS C HOLROYD
MR D A C LAMBERT

MS P ANYIA	APPELLANT

(1) THE LONDON BOROUGH OF EALING 	RESPONDENTS
(2) MR M McNAMARA 
(3) MS V DE MATTOS	

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MISS C AJAYI
(of Counsel)
Hammersmith & Fulham Council for Racial Equality
Pallingswick House
241 King Street
Hammersmith
London
W6 9LP	

	 JUDGE PETER CLARK:	From and since about April 1988 the appellant, Ms Anyia has been employed by the London Borough of Ealing [“Ealing”] in the Estates and Valuation Division. She is black and of Nigerian racial origin.

	On 23rd February 1998 she presented a complaint of racial discrimination, racial and sexual harassment and victimisation to the London (North) Employment Tribunal. She there outlined a number of specific complaints. On 19th February 1997 she had submitted complaints of harassment and racial discrimination to her employer. An investigation was carried out by Mr Polson, Head of Legal Services and the Personnel Officer. On 16th September 1997 Mr Polson wrote to the appellant rejecting her complaints. She then wrote to him on 14th November 1997, responding to issues raised by him in his letter. She concluded by saying that she considered his report to be incomplete and inadequate.

	Mr Polson replied by letter dated 27th November 1997, in which he contended that he had dealt with all the items raised by the appellant and added these words:

“I do not propose to re-open my investigation of your complaints.”

	Thereafter, the appellant served a s.65 questionnaire under cover of a letter dated 10th December 1997 and followed that up with her Originating Application to the Employment Tribunal.

	In their Notice of Appearance Ealing took the point that the complaint was out of time. That preliminary issue came before a full Employment Tribunal, chaired by Mr G M Pettigrew, on 8th September 1998. The appellant was represented by Counsel, Miss Ajayi, who appears before us today, and the respondents by their solicitor, Ms Ramsaran. The tribunal found that time for bringing the complaint ran from 16th September 1997; accordingly, the complaint presented on 23rd February 1998 fell outside the ordinary three month time limit under s.68(1) of the Race Relations Act 1976. Further, the tribunal recorded in their extended reasons that no submission was made by Miss Ajayi that time should be extended under the just and equitable provision contained in s.68(6) of the 1976 Act. The claim was dismissed by a decision with extended reasons, promulgated on 30th September 1998.

	Against that decision the appellant now appeals. This is a preliminary hearing held to determine whether the appeal raises any arguable point or points of law to go forward to a full appeal hearing. 

	The first point taken by Miss Ajayi is that the tribunal erred in finding that time ran from 16th September 1997. She submits that there was here a policy of discrimination and victimisation which continued until Mr Polson’s letter of 27th November 1997 at the earliest, and perhaps up until the date on which the appellant submitted the s.65 questionnaire, 10th December 1997. In either event, the claim was within the ordinary three month time limit.

	We cannot accept that submission. The tribunal found that no acts of discrimination took place after 16th September. On that date her grievance was finally resolved by Mr Polson. He did not reconsider the matter when writing on 27th November and did not accept that any issues remained outstanding.

	In coming to our conclusion, we bear in mind the distinction between made between a fresh decision and an employer referring back to the original decision, here that made on 16th September 1997. See the judgment of the Court of Appeal in Cast v Croydon College [1998] IRLR 318. In these circumstances we uphold the tribunal’s finding that time began to run on 16th September 1997. The claim was made outside the ordinary limitation period.

	Secondly, it is contended by Miss Ajayi that the tribunal ought to have considered the just and equitable extension of time provision contained in s.68(6) of the 1976 Act, notwithstanding that no express invitation to do so was made by her, instead she asked the tribunal to deal with the matter equitably under s.68 of the 1976 Act.

	In support of that submission she has referred us to Mr Springer’s dissenting opinion in the Employment Appeal Tribunal decision of Dimtsu v Westminster City Council [1991] IRLR 453. We have considered his observations in that case, but of course he was in the minority in taking the view that it was incumbent upon an Employment Tribunal to raise the question of s.68(6) extension. The majority of that division of the EAT took a different view, and held that it was not incumbent on the tribunal below to raise the point if not raised by the applicant and having not been raised below the point could not then be raised on appeal before this tribunal. We note that that majority opinion has been approved by the Court of Appeal in Divine-Bortey v London Borough of Brent [1998] IRLR 525. 

	In these circumstances, we feel bound to conclude that, the point not having been expressly raised below, it is not open to the appellant to pursue the question of an extension of time under s.68(6) by way of appeal to this Appeal Tribunal.

	In these circumstances we have concluded that the appeal raises no arguable point of law to go forward to a full appeal hearing and consequently it must be dismissed.