Appeal No. EAT/0333/03 ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 September 2003

Before
HIS HONOUR JUDGE J McMULLEN QC
MS P TATLOW
MRS R A VICKERS

MR A SENESIE	APPELLANT

TSS (TOTAL SECURITY SERVICES) LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS S PALMER
(of Counsel)
Instructed by:
Messrs Kaj Mordi & Co Solicitors
First Floor
402 Holloway Road
London N7 6PZ	
For the Respondent	MR GARY POLLARD
(Consultant)
Messrs Pollard Associates
The Old Mill
Reedness Road
Swinefleet
East Yorkshire DN14 8EN	

HIS HONOUR JUDGE J McMULLEN QC

1	This case is about Employment Tribunal procedure in the handling of a late claim of race discrimination.  The judgment represents the views of all three members who have read the relevant papers in advance.  We will refer to the parties as Applicant and Respondent.

Introduction

2	It is an appeal by the Applicant in those proceedings against the decision of an Employment Tribunal sitting at Stratford (East), Chairman Ms I Manley, registered with Extended Reasons on 25 February 2003.  The Applicant represented himself and is here represented by Miss Suzanne Palmer of Counsel.  The Respondent was represented there and her by Mr Gary Pollard, a Consultant.

3	The Applicant claimed race discrimination, victimisation and unfair dismissal.  The Respondent contended he resigned, was not forced to and it did not discriminate against him or victimisation.

4	The essential issues were defined by the Employment Tribunal and because of the way in which the matters have been developed before us, we need say very little.  The Tribunal decided against the Applicant on all his claims except in respect of direct race discrimination in which event it found in his favour but decided he was out of time.

5	The Tribunal addressed the correct statutory provision in analysing time but is, as fairly accepted by Mr Pollard, did not do the evaluation required by such authorities as Hutchinson v Westward Television Ltd [1977] IRLR 69, British Coal Corporation v Keeble [1997] IRLR 336 and The County Council of Herefordshire and Worcester v Neale [1986] IRLR 168.

6	The effect of that is that the Tribunal found that the Applicant’s claim in respect of direct discrimination by Mr Salt, the Respondent’s employee, but it was out of time; yet no explanation was given for the decision that it was not just and equitable to extend time, because the critical factors seem not to have been made clear.

7	That exercise includes the balance of prejudices between the parties, the length of and reasons for delay, the extent to which the cogency of the evidence was likely to be affected by the delay, the promptness with which the Applicant had acted once the facts were known giving rise to causes of action, the steps he took and all the circumstances of the case, together with the fact that the claim was additional to and overlapped claims of victimisation and constructive unfair dismissal which were made timeously.

8	In addition, this appeal concerns the procedure adopted by the Tribunal.  There is a dispute as to what occurred.  I gave directions in this case which enabled the parties to provide us either with notes or Chairman’s notes of the procedure complained of but these have not been followed.  Thus we are not able to resolve the issue.

9	The issue is whether the Applicant had a full opportunity to give evidence and make submissions upon the time point.  The time point was raised, it is common ground, in Mr Pollard’s closing submissions but there is a dispute as to whether it was raised initially or at least whether the Applicant understood it to have been raised initially and whether or not he was asked questions thereon.  We make no finding on that aspect of the appeal, except to say that, as presently advised, we have some unease about the procedure.  Nevertheless, that is as high as we can put it on the present state of the material.

10	However, in respect of the balancing of issues pursuant to the just and equitable jurisdiction, Mr Pollard graciously accepted that the Tribunal does not make its reasons clear and he wished it had.  For his part, there were reasons for the Tribunal to exercise its discretion but, as he accepts, they have not been shown to us.  Thus there is an error and he prudently does not advance firm arguments against allowing the appeal on that basis.

11	The practical effect is that the matter should be remitted.  Having heard argument it will go back to the same Employment Tribunal in which the parties do not seem to have lost confidence, for they have both won and lost in front of it.  It will last a day.  We have given directions for the exchange of material relevant to the time issue and also, so the Tribunal may deal with it if necessary, remedy.

12	We would like to thank the parties’ representatives today for the conscientious way in which they have approached the task before them.  We make it clear that the result may well be the same when it goes back to the Employment Tribunal; but at least the Employment Tribunal will have been demonstrated to the parties and to us what the thinking is on the time point.  The appeal is allowed and the case remitted to the same Employment Tribunal.