Appeal No.	 EAT/440/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 October 2001

Before
THE HONOURABLE MR JUSTICE WALL
MS B SWITZER
MR B M WARMAN

MR S OKORUWA	APPELLANT

DEPARTMENT FOR WORK
AND PENSIONS	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A ELESUNLA
(of Counsel)
Instructed by:
Anna Barlow & Associates
Solicitors
York House
York Parade
Great West Road
Brentford	
For the Respondent	MR D TATTON BROWN
(of Counsel)
Instructed by:
Office of the Solicitor
New Court
48 Carey Street
London 
WC2A 2LS	

MR JUSTICE WALL

1	This is the full hearing of an appeal by Mr Soloman Okoruwa (the Appellant) against the decision of the London (North) Employment Tribunal, promulgated with Extended Reasons on 29 February last year, dismissing the Appellant’s complaint of racial discrimination against his employer, the Benefits Agency (the Respondent).  

2	It will be seen from the documentation that the proper Respondent to this appeal is the Department of Work and Pensions, and no doubt the name of that party should be substituted in the title to the proceeding.  The Appellant’s duplicate IT1 which bears the date 3 June 1999, claims race discrimination in the Appellant’s application for promotion to the position of Higher Executive Officer in the Respondent’s department.  We are not, however, concerned with the merits of that claim, since an Industrial Tribunal dismissed the application on the basis that it had no jurisdiction to hear it.  This is because the complaint had not been presented to the Tribunal within the statutory three month limitation period, contained in Section 68(1) of the Race Relations Act 1976, the Tribunal further taking the view that it would not be just and equitable within the meaning of Section 68(6) to extend the time limits for considering the complaint.  

3	The Appellant initially took two points by way of appeal.  The first was that the Tribunal was wrong as a matter of law to find that there was not a continuing act of discrimination by the Respondent, with the result that the three month period under Section 68(1) of the Race Relations Act 1976 for lodging his IT1 did not begin to run on 2 March 1999, when his internal appeal against his refusal for promotion was dismissed.  

4	The second point taken by the Respondent was that the Tribunal failed to make clear findings of fact upon which it could then base its conclusion, that it was not just and equitable to extend the Appellant’s time to lodge his IT1.

5	At a preliminary hearing on 29 September last year, the Employment Appeal Tribunal, presided over by His Honour Judge Clark, rejected the first ground but directed that the appeal be allowed to proceed on the second, with skeleton arguments to be filed on both sides.  

6	The background to the application is neatly summarised by Judge Clark in the preliminary judgment of the Employment Appeal Tribunal given on 29 September 2000 and I can do no better than to read what he says:
“2	The background is as follows.  The Appellant had been employed by the Respondent since 1987.  At all relevant times he was an Executive Officer.  In April 1998 he applied for a promotion to Higher Executive Officer grade.  He was not supported in that application by his manager, ….He appealed against that promotion report.  His appeal was dismissed by Sue Harris on 2 March 1999.  That was the actual discrimination on which he relied.  If that was the material date for limitation purposes the ordinary 3 months limitation period expired on 1 June 1999.
3	His Originating Application was not recorded as having been presented to the London (N) Employment Tribunal until 27 September 1999, just under 4 months out of time.
4	The Tribunal received evidence from the Appellant as to the steps which he took to present his complaint.  They record that evidence as follows.
5	In mid-May 1999 the Appellant became aware of the 3 month time limit for claims as a result of his own researches.  He then went directly to the Shepherd’s Bush Citizens Advice Bureau and obtained a form IT1.  On 24 May he wrote to Ms Harris, informing her that he was appealing against her decision, that the time limits would expire on 1 June, and that he would be completing his “appeal” and forwarding it to the appropriate body outside the Benefits Agency to reach them on or before 1 June.  We at first took that to be a reference to lodging a complaint with the Employment Tribunal, however we were told by Counsel that the Appellant intended to convey was that he would be submitting his case to the Commission for Racial Equality.
6	On 1 June he sent a full set of papers to the Commission for Racial Equality, he says he expected them to be forwarded to the Tribunal.  His evidence was that on 3 June he spoke to someone at the Commission for Racial Equality who asked him to fax his form IT1 and papers to the Tribunal and ask the Tribunal to extend the time limits.  He said he did so (by fax) to the Croydon, that is London (S) regional office and that he received no response from that office.  He said that he sent further correspondence to the Tribunal (by special delivery) on 11 June 1999 and (by fax) on 6 July 1999 but that he received no reply.  
7	He received correspondence from the Commission for Racial Equality on 17 June, 23 July …7 September and 13 September.  During the period 6 July - 23 September 1999, he had not contacted the Croydon Tribunal to enquire as to whether they had received and processed his form IT1.  
8	He did not contact the Commission for Racial Equality during the period 23 July - 7 September.  On 23 September he went to the Croydon Tribunal.  That office had no record of his form IT1.  He filled in another form IT1 which he lodged with the Tribunal.  The Croydon Tribunal sent that document to the London (N) Tribunal where it was registered on 27 September.  
9. In these circumstances the Tribunal concluded:
(1)  this was not a complaint of a continuing act of discrimination.  The act alleged was the Respondent’s refusal to uphold his internal appeal on the 2 March 1999.  Time began to run from that date.
(2)  the Appellant was aware of the 3 months time limit in mid-May 1999.  He had time to lodge his complaint within the time.
(3)  he did not do so although he was able to forward his documents to the Commission for Racial Equality on 1 June 1999.  The Tribunal held that it was unreasonable for him to expect the Commission for Racial Equality to lodge his form IT1 immediately.
(4)  there was no evidence that the Employment Tribunal at Croydon had received letters from him dated 3 June, 11 June (by special delivery) and 6 July (by fax).
(5)  he received letters from the Commission for Racial Equality dated 17 June, 23 July, 7 September and 13 September, but made no attempt to contact the Croydon Tribunal between 6 July and 23 September to check whether his application had been received.
(6)  on 23 September he attended at Croydon to be told that they had no record of having received his application.  He then filed a fresh Originating Application, which the Croydon Tribunal sent to London (N) where it was registered on 27 September.
10.	In all these circumstances the Tribunal held first that the complaint was out of time and secondly that it was not “just and equitable” to extend time under Section 68(6) of the Race Relations Act 1976.”

7	Before Judge Clark the Appellant was represented Ms Robertson, under the ELAAS pro bono scheme, and he recalls her as taking two points on behalf of the Appellant:

“12.	The first is that the Tribunal were wrong as a matter of law to find that there was not a continuing act.  There was some evidence before the Tribunal to suggest that the dismissal of his internal appeal on 2 March 1999 formed part of a policy or practice of discrimination on the part of the Respondent.”  

The Employment Appeal Tribunal was unimpressed by that argument and dismissed it.  However, in relation to the second point, Judge Clark continues:
.
“15.	The second point we think has more substance.  In a nutshell, Ms Robertson submits that the Tribunal, having set out the Appellant’s evidence and contentions in paragraph 4 of their reasons, then fail to make clear findings of fact as to whether or not he did indeed fax and send a copy of an Originating Application to the Tribunal on 3 June and subsequently on 11 June and 6 July.  She submits that it was necessary to make clear findings of fact on those evidential points in order that the Tribunal could properly determine the question, as to whether or not it was “just and equitable” to extend time.  There is a material difference [she submitted] between an Originating Application lodged 2 days out of time and one which is lodged just under 4 months out of time.  
17.	It is not clear from the Tribunal’s reasons that they were saying in terms that it would not be “just and equitable” to extend time if indeed an Originating Application was lodged on 3 June.
18.	We think that that submission is arguable and ought to proceed to a full hearing.  We have in mind particularly that in paragraph 7(4) of the Tribunal’s reasons they say this: 
“There is no evidence that the Applicant presented his IT1 to the Croydon Tribunal on 3 June 1999.”
19.	Pausing there, there was evidence.  There was evidence from the Applicant. It was a matter for the Tribunal to decide whether or not they accepted their evidence.
20.	We also think it significant that the Appellant put before the Tribunal that the Post Office receipts for a special delivery item dated 11 June 1999.
21.	It is right to say that the Appellant did not put before the Employment Tribunal as he has thought to do before us, a copy of a letter from the Royal Mail which post-dates the Tribunal hearing and encloses a photocopy of the signature of the person who actually took receipt of that package on 11 June at the Croydon Tribunal.
22.	In these circumstances we say no more but that we think this point is arguable and that the case will proceed to a full hearing on that point alone.” 

8	We have had the benefit of skeleton arguments on both sides and oral argument from Counsel, for which we are grateful.  For the Appellant, Counsel repeats the argument that the Employment Tribunal erred in law in failing to make  clear findings of fact as to whether or not the Appellant did indeed fax an Originating Application and a letter requesting an extension of time to the Croydon Employment Tribunal on 3 June, followed by the other correspondence to which we have referred.  Counsel submits that such findings were essential for the Employment Tribunal properly to determine the question of whether it was just and equitable to extend the time limit.  As Judge Clark put it, there is a material difference between an application lodged two days late and one lodged four months late.  

9	A complaint is also made that the Employment Tribunal’s Reasons are inadequate, as it is not clear whether or not they had also found on the side of the Appellant that he had lodged an Originating Application in the Croydon Tribunal on 3 June, but went on to hold that it would not be just and equitable to extend the time limit.  

10	The Appellant also picks up the point made by Judge Clark in the course of his argument about evidence in fact being available, as to the Appellant’s actions.  

11	For the Respondent, Mr Tatton Brown argues that the purposes of reasons in any decision is to enable the Appellant to know why he has lost, and provide a sufficient account of the Tribunal’s reasoning to enable the Employment Appeal Tribunal to see whether a question of law arises.  He relies upon,  and has cited to us, well known passages from Meek v City of Birmingham District Council and Hollister v National Farmers Union.  He argues that the Tribunal’s Reasons should be read benevolently and should not be gone through with a toothcomb to see if some error can be spotted.  He accepts that the Tribunal did not make express findings of fact as to whether or not the Applicant faxed an Originating Application to the Tribunal on 3 June, or sent the letters of 9 June and 6 July.  He argues that the Tribunal did not have to make those findings since it was entitled to conclude, as it implicitly did, that whether or not he did those things, it would not be just and equitable to extend the time.  He submits that the Tribunal was well aware of the Appellant’s case on these points, and directs our attention to the Extended Reasons.  In this context, he argues, reading the Decision benevolently, the Tribunal’s comment at paragraph 7.4 that:
“There is no evidence that the Applicant presented his IT1 To the Croydon Tribunal 
on 3 June 1999”
must be intended to mean that there was no corroborating evidence that this occurred.  The Tribunal, he argues, would appear to have had doubts about whether the Appellant in fact sent the documents, but did not feel that it was necessary to make a finding on this issue.  It was entitled not to make such a finding, he says, because it was entitled to conclude that it would not be just and equitable to extend the time, whether or not documents were sent on 3 June 1999.  The Appellant was aware, he argues, of the three month time limit; he had received clear advice from the Citizens Advice Bureau by 25 May; that he had one clear week to present an in-time IT1 to the Tribunal by 1 June, and he was able to collate and send documents to the Commission for Racial Equality.  

12	In these circumstances, Mr Tatton Brown argues that the Tribunal was entitled to conclude that it would not be just and equitable to extend time, even though the claim would have been two days out of time, rather than several months.  He points to the decision Oniagwu v London Borough of Hackney as to the danger of assuming that a short period of time, or being a short period out of time is sufficient to make it just and equitable for time to be extended.  He therefore seeks to persuade us that there is no error of law by the Tribunal and that accordingly, the appeal should be dismissed.  

13	Having considered the rival arguments carefully, we prefer those advanced on behalf of the Appellant.  In our judgment, the exercise of a judicial discretion must depend crucially upon facts found by the Tribunal.  Accordingly in order to decide whether or not it was just and equitable to extend the time in this case, it was necessary, in our view, for the Tribunal to make the findings of fact, identified by the Appellant.  It is common ground that the Tribunal did not do so, and the consequence, in our view, is that the exercise of discretion is flawed.  The Tribunal’s failure to make the findings and exercise its discretion on the basis of those findings is, in our view, an error of law, and accordingly it follows that the appeal must be allowed.  

14	In the overall context of events, we cannot read paragraph 5 and 6 on page 12 of the Extended Reasons of the Tribunal as a rationale, saying that it would not have been just and equitable to refuse an extension of time, if the application had indeed been received on 3 June.  There is, of course, a very substantial difference between an application which is two days late, and one which is several months late, and by failing to make a finding whether or not the IT1 was faxed to the Tribunal as part of the sequence of events starting with the letter of 24 May to Ms Harris, the Tribunal, in our view, effectively fettered its own discretion and left out of account a material factor for the proper exercise of that discretion.  

15	Had the Tribunal made the finding as it should have done, there would plainly have been a basis upon which it could have found that it was just and equitable to extend the time.  Since it did not do so, it seems to us that the matter must now be remitted to a differently constituted tribunal for it to be reconsidered.  

Appeal allowed: matter remitted to a differently constituted Tribunal for reconsideration.  Permission to appeal refused.