Appeal No. UKEAT/0246/06/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 November 2006

Before
HIS HONOUR JUDGE RICHARDSON
(SITTING ALONE)

MISS K BROWN	APPELLANT

LONDON BOROUGH OF TOWER HAMLETS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR DAN IBEKWE
(Representative)
Public Transport Staff Consortium (PTSC)
31B Mervan Road
Brixton
London
SW2 1DP	
For the Respondent	MR STUART BRITTENDEN
(of Counsel)
Instructed by:
London Borough of Tower Hamlets Chief Executive’s Directorate – Legal Services
Mulberry Place
5 Clove Crescent
London
E14 2BG	

SUMMARY
Time Limits – Just and equitable extension
Practice and Procedure – 2002 Act and pre-action requirements 
Just and equitable extension – Tribunal Chairman’s reasons concentrated impermissibly on one period of delay and/or failed to evaluate the factors for an against the consideration of the claim out of time. 
Reasonable practicality of sending step one letter – Tribunal Chairman’s reasons in one key respect not based on adequate explanation or factual findings.

HIS HONOUR JUDGE RICHARDSON

1.	This is an appeal by Miss Kim Brown and a cross appeal by her employers the London Borough of Tower Hamlets (“LBTH”) against a Judgment of the Employment Tribunal, sitting by Chairman alone at London (Central), dated 20 February 2006. By her Judgment the Tribunal Chairman ruled that Miss Brown’s claim of race discrimination by victimisation was presented out of time and that the Tribunal did not have jurisdiction to hear it, the Tribunal Chairman evidently considering that it was not just and equitable to do so. Against this ruling Miss Brown appeals. The Tribunal Chairman also ruled that the Tribunal was not barred from entertaining Miss Brown’s claim by virtue of section 32(2) of the Employment Act 2002 because it was not reasonably practicable for Miss Brown to comply with the statutory grievance procedures. Against this ruling LBTH cross appeals.

2.	There was a preliminary hearing on 6 July 2006. The appeal went forward on grounds set out in paragraph 6.2 of the Notice of Appeal. Other grounds were dismissed. The cross appear was listed to be heard together with and subsequent to the appeal. In fact, today, all submission have been heard at once and I am giving a single judgment on these issues.

The facts

3.	Miss Brown was employed by LBTH in the capacity of a care manager within its social services department from 10 March 2003 until 31 May 2004. There were, without doubt, difficulties between her and some of her colleagues, by reason of which she submitted grievances, alleging bullying and harassment. In addition she made, on the Tribunal Chairman’s finding, a specific complaint on 21 March 2004 concerning the provision of a bad reference by her team manager. She referred to racially stereotyped comments and to the threat of her social work career ending if she chose to complain about white staff. This the Tribunal Chairman found to be a potentially protected act for the purpose of the victimisation provisions of the Race Relations Act 1976. 

4.	As I have said, Miss Brown left LBTH on 31 May 2004. Later that year she applied for a job to the Luton Council. On 5 January 2005 a reference was provided by LBTH. On 27 January Miss Brown learned that she had not secured the job at Luton. She believed that it was by reason of the reference from LBTH. She told the Tribunal she suspected racial discrimination. She had an initial consultation with a solicitor and continued to be in touch with that solicitor. She also sought help from an advice centre, which told her that she could present no claim until she had a copy of the reference. 

5.	Following correspondence, on 25 March she received a letter from Luton which quoted parts of the reference. She then definitely believed she had been the victim of racial discrimination. In the first week of April she received the reference itself. A solicitor told her she had an “arguable case”.

6.	In May she consulted Mr Neckles. She met him. A claim form was drafted. She signed it and dated it 17 May. But it was not until 20 June that it was presented to the Tribunal. According to the Chairman’s reasons, no explanation was given for this delay of almost five weeks. 

The Chairman’s reasons

7.	On the question of time limits, the Chairman found that, for the purpose of Miss Brown’s victimisation claim, time began to run on 6 January 2006, i.e. from the date of LBTH’s treatment of Miss Brown, and expired on 5 April. On the question whether it would be just and equitable to hear the claim outside the time limit, the Chairman set out findings of fact and then conclusions in paragraphs 26 and 27:
“26.	The alleged discriminatory act took place on 6 January 2005 and the primary time limit expired on 5 April. It was over two months later that the claim was presented. It appears that for almost five weeks the form had been signed and dated and ready to send to the Tribunal. We received no explanation for this delay. In the circumstances I can find no reason why it would be just and equitable to extend time for the period from 17 May until 20 June.
27. The complaint was presented out of time and there is no discretion to extend time under the “just and equitable” grounds to allow it in. This application is dismissed.”

On the question of compliance with the statutory grievance procedures, the Chairman’s conclusion was set out in paragraph 17:
“17. I accept Mr Brittenden’s submissions that it is necessary for a former employee who wishes to complain of racial discrimination (unless it is the fact of the dismissal which is the discrimination) to comply with the statutory grievance procedure. However, I accept the Claimant’s evidence and submissions that in this case it was not “reasonably practicable” for her to comply with the grievance procedure. Much of Ms Brown’s evidence confirmed the raising of her grievance in November/December 2003, and she confirmed that the Respondent failed either to properly interpret her complaint, or to progress it expeditiously. By the time the Respondent wrote the letter containing the reference of January 2005, she had already left their employment for more than 7 months, and, had worked in at least one other workplace. It was almost 8 months after her departure when she learned that she had been unsuccessful, at which stage she suspected there might have been discriminatory action by the Respondent. In view of the length of time which has elapsed since her employment ended, and given her earlier experiences with the grievance procedure, and her solicitors’ attempt to obtain responses from the Respondent, which was not challenged, I am satisfied that it was not reasonably practicable for her to write a letter of grievance before submitting her complaint.” 

Statutory provisions

8.	On the question of time limits the relevant statutory provision is section 68(1) of the Race Relations Act 1976.
“68 Period within which proceedings to be brought
(1) An [employment tribunal] shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of [-
(a) the period of three months beginning when the act complained of was done; or
(b) in a case to which section 75(8) applies, the period of six months so beginning.]”

On the question of compliance with the statutory grievance procedure, the relevant provisions are as follows. Section 32(2) of the Employment Act 2002 provides:
“32 Complaints about grievances
(2) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if-
(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and
(b) the requirement has not been complied with.”

Paragraphs 6 and 9 of schedule 2 are the initial steps in statutory grievance procedures laid down by the Employment Act 2002. The requirements of these paragraphs are applied by the Employment Act 2002 (Dispute Resolution) Regulations 2004. Regulation 6(4) provides:
“6 Application of the grievance procedures
(4) Neither of the grievance procedures applies where-
(a) the employee has ceased to be employed by the employer
(b) neither procedure has been commenced; and
(c) since the employee ceased to be employed it has ceased to be reasonably practicable for him to comply with paragraph 6 or 9 of Schedule 2.”

9.	Regulation 6(4) is not the only provision of the Regulations which deals with reasonable practicability. A similar reference is found in Regulation 8(1), which also applies when an employee has ceased to be employed by the employer. In Regulation 11(3)(c) there is set out a general circumstance in which statutory procedures do not apply or are treated as being complied with where “it is not practicable for the party to commence the procedure or comply with the subsequent requirement within a reasonable period”.

10.	It is Regulation 6(4) which the Chairman applied. Before the Chairman it was common ground that Miss Brown had cease to be employed by LBTH and that neither procedure had been commenced. The question for her was therefore whether it had ceased to be reasonably practicable for her to comply with the first step of the applicable grievance procedure. 

New points

11.	There were three lines of submission by Mr Ibekwe, who appears today for Miss Brown, supporting a Skeleton Argument drafted by Mr Neckles, which were not contained within paragraph 6.2 of the Notice of Appeal. The first line of submission, and the most significant, was that Miss Brown in fact complied with section 32(2) of the Employment Act 2002 by submitting a step one grievance under the standard grievance procedure. In support of this submission Mr Ibekwe first referred me to several letters written by Miss Brown to Luton Council. However, these letters cannot possibly amount to statements of grievance for the purpose of paragraph 6 of schedule 2 to the 2002 Act because they were not sent to the employer. 

12.	Much more persuasively, he refers to a copy letter dated 4 April 2005. This appears to be a copy of a letter written by a firm of solicitors, Darlingtons, on behalf of Miss Brown to LBTH. The letter is, primarily, a complaint of defamation. It certainly complains, however, of the sending of the reference. It rehearses the earlier reference, to which I have referred. It refers to victimisation, at least in the broader sense of the word. It says Miss Brown has been treated less fairly than other employees. Mr Ibekwe submits that the letter complies with step one, and further he submits that, since it was sent within the primary limitation period relating to Miss Brown’s claim, time was extended to six months by virtue of Regulation 15 of the Dispute Resolution Regulations, so that her claim was in fact in time. 

13.	This submission was not made in the Notice of Appeal. More significantly still, it was not made below. The Tribunal was aware that Miss Brown had instructed solicitors, and that there had been some correspondence, but I am entirely satisfied that the Tribunal was not presented with the letter dated 4 April 2005. Moreover there was no evidence as to whether it was sent or as to the date on which it was sent, both of which would be crucial for the purpose of Mr Ibekwe’s full argument. 

14.	I am satisfied that this point cannot justly be taken for the first time on appeal. There are only limited circumstances in which the Appeal Tribunal will allow a point, even a point which goes to jurisdiction, as Mr Ibekwe submits this does, for the first time on appeal. The fact that the point, in some sense, goes to jurisdiction is relevant but not conclusive. This is not a discrete point of hard edged law which can be decided without factual enquiry. Far from it. There is, moreover, no material from which I can be satisfied that the rules relating to the submission of fresh evidence to the Appeal Tribunal apply. No attempt has been made to comply with paragraph 9 of the order made at the preliminary hearing. This point, therefore, in my judgment, is not open to Mr Ibekwe or Miss Brown on appeal. 

15.	The second line of submission made by Mr Ibekwe, not reflected properly in the notice of appeal, is a submission that in fact there was an explanation before the Tribunal as to the reasons for delay in the last five weeks. He says the Tribunal was told that Mr Neckles was seeking further correspondence that had been sent by solicitors. That, he says, was before the Tribunal. However, the Tribunal says the contrary. The matter is disputed by Mr Brittenden. There has been no attempt to obtain Chairman’s notes of evidence, or to comply with the Appeal Tribunal’s usual practice concerning such matters. I am entirely satisfied that this is not a point which can be taken for the first time today; it would not be just to do so. 

16.	The third point made by Mr Ibekwe relates to section 32 of the Limitation Act 1980. I am satisfied that this rests on a misunderstanding by Mr Ibekwe of those points which are still live in the case. He was momentarily confusing the position between section 32 and section 33. 

Submissions

17.	I turn then to summarise the submissions of the parties on those matters which are, in my judgment, in issue on the appeal. Mr Ibekwe, on behalf of Miss Brown, criticises the Tribunal’s reasoning for declining to consider Miss Brown’s complaint. He submits that the Chairman failed to consider the relative prejudice or injustice which could or would be done to the respective parties. He submits that the Tribunal appears, in its key reasoning, to have concentrated exclusively on the period of five weeks delay, whereas it should have had regard to the overall position before concluding that an unexplained period of five weeks was decisive, and should have considered in the round whether it was just and equitable to extend time. He submits that the Tribunal did not have any adequate regard to the legal advice given, including the advice that she could not effectively begin proceedings without having a reference, which she only obtained at the very end of the primary limitation period. He submitted also that the Tribunal failed to have regard to LBTH’s responsibility, as he suggested it was, for delay. But I can deal with that last point immediately for I am satisfied that it is not well founded in fact. LBTH submitted a consent to disclosure of the reference within a reasonable time after that disclosure was requested. 

18.	On the question whether it was reasonably practicable to comply with paragraph 6 or 9 of schedule 2, Mr Ibekwe submits that the Chairman’s conclusions are conclusions of fact which cannot and should not be overturned on appeal. He again relied on the alleged obstructiveness of LBTH in respect of the reference. He relied strongly on the reasoning and findings of the Chairman in paragraph 17. 

19.	On behalf of LBTH Mr Brittenden submitted that the Tribunal Chairman’s decision was a proper one. He referred me to the leading authorities on this question, including Robertson v Bexley Community Centre [2003] IRLR 434 and Southwark London Borough Council v Afolabi [2003] ICR 800. He submitted that the Tribunal made no error of law or approach. Although the final paragraphs of her reasons are succinct, he submits that her findings of fact show that she had regard to all relevant matters. In particular, her findings of fact deal with the length of delay, with the question of Miss Brown’s knowledge and belief, with what she did when she had the relevant knowledge and belief. It is true, Mr Brittenden accepts, that the Tribunal does not expressly deal with the question of whether a fair trial was possible, or with any question of relative prejudice. But, he says, the question whether a fair trial is still possible is never a knock-down argument for applications to an Employment Tribunal have to be brought within strict time limits, and there will often be cases where a fair trial is still possible but it will not be just and equitable to extend time. 

20.	On the question of whether it was reasonably practicable to comply with step one of the grievance procedure, Mr Brittenden make essentially two submissions. Firstly he submits that, applying classic authority on the question of reasonable practicability such as Palmer v Southend-on-Sea Borough Council [1984] IRLR 119, there was, in reality, only one answer to which the Tribunal Chairman could come. It was, he submits, feasible for Miss Brown to submit a statement of her grievance. He submits that there will only be relatively rare cases where it is not reasonably practicable for a Claimant first to submit a statement of grievance. There must, he submits, be some kind of impediment in the way such as the employer shutting down and having no letter box through which a grievance can be sent, or, he suggests, a line manager saying it would be a waste of time to send a grievance. We looked together, in the course of his submissions, at the different places within the rules where there is reference to reasonable practicability and practicability. 

My conclusions

The just and equitable point
21.	A convenient starting point is Robertson v Bexley Community Centre at paragraph 25. Here Auld LJ said: 
“It is also of importance to note that time limits are exercised strictly in employment and industrial cases. When Tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion; quite the reverse. A Tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time, so the exercise of discretion is the exception rather than the rule. It is of a piece with those general propositions that an Appeal Tribunal may not allow an appeal against a Tribunal’s refusal to consider an application out of time in the exercise of its discretion merely because the Appeal Tribunal, if it were deciding the issue at first instance, would have formed a different view. As I have already indicated, such an appeal should only succeed where the Appeal Tribunal can identify an error of law or principle, making the decision of the Tribunal below plainly wrong in this respect.”

To this I would only add that Auld LJ, in formulating the circumstances in which an Appeal Tribunal may intervene, was not ruling out a challenge to a Tribunal’s reasoning on grounds of insufficiency of reasons. He later referred to the need for a “satisfactorily reasoned conclusion”: see paragraph 35 of his Judgment. 

22.	In Southwark London Borough Council v Afolabi, Peter Gibson LJ referred to the extent to which an Employment Tribunal needed to use a check-list when reaching its conclusions on the just and equitable issue. He said:
“Whilst I do not doubt the utility of considering such a check-list in many cases, I do not think that it can be elevated into a requirement on the Employment Tribunal to go through such a list in every case, provided of course that no significant factor has been left out of account by the Employment Tribunal in exercising its discretion.” 

23.	A conclusion on whether it is just and equitable to consider a complaint out of time involves two stages. Firstly it involves the finding of relevant facts. Then it involves an exercise in evaluation. Reciting the facts and stating a conclusion, if it ever suffices, suffices only in the most straightforward cases. Often there will be features on both sides which require careful balancing and evaluation. Although there is no requirement to use a check-list, it is because a Tribunal is carrying out an exercise in evaluation that a check-list is often helpful. 

24.	In this case, in my judgment, there was a need for careful evaluation of the factors going to the question whether it was just and equitable to consider the complaint out of time. Here are some which needed to be weighed in the balance in Miss Brown’s favour. First the treatment which founded the claim occurred, and therefore the limitation period started to run, before Miss Brown could be aware of it. Second she did not receive the reference about which she was complaining until substantially towards the end of the primary limitation period. Thirdly she did take legal advice. Fourthly LBTH was alerted to her complaint in broad terms at an early stage, even if it was not alerted to a claim of victimisation in a technical sense. Fifthly it does not seem that the period is likely to have led to any less cogent evidence in the case. As against that of course there was a period of delay beyond the primary limitation period, one portion of which was unexplained. 

25.	To my mind the Tribunal Chairman’s reasoning does not contain the evaluation that ought, as a matter of law, to be found in it. The fact-finding exercise is carried out in some detail in the paragraphs up to and including paragraph 25. The exercise in evaluation is contained only in paragraph 26 and just possibly also the very succinct paragraph 27. In paragraph 26 the period of five weeks delay, which was unexplained, is singled out as though it was the decisive and only decisive factor in the case. Rather it was one factor which needed to be considered in the course of the evaluation of a number of factors. 

26.	I conclude either that the Tribunal Chairman erred in law in singling out this one factor, or that she simply has not given reasons for the evaluation which was required of her. It seems to me that there is an error of law in paragraph 26 and that the appeal must be allowed and the matter remitted. 

27.	I turn then to the separate question of reasonable practicability. Here again I have some difficulty with the process of reasoning within paragraph 17 of the reasons. It is plain that the Tribunal Chairman placed considerable weight on Miss Brown’s evidence about a previous grievance which, according to her, had not been properly interpreted or expeditiously progressed. But there are no real findings about this, and no real findings as to why, even if that were the case, she should not have written a letter of grievance before submitting her complaint. If this was a factor of real power in the Tribunal Chairman’s reasoning then I cannot see from paragraph 17 why that should have been so. I therefore accept this part of Mr Brittenden’s submission. I do not think that the reasoning in paragraph 17 lays a proper foundation for the conclusion that is reached in that paragraph. 

28.	I need, however, to go on to deal with Mr Brittenden’s further submission that there was really only one answer in this case, and that the Tribunal Chairman was, in effect, bound to find that it was reasonably practicable to put in a letter of grievance before submitting her complaint. At this point I remind myself of the limited power and jurisdiction of an Appeal Tribunal. It is only if there is a single correct answer to the question of reasonable practicability that the Appeal Tribunal can substitute its own conclusion for the conclusion of the Tribunal below, which has been vested by Parliament with the power and duty to find facts. What amounts to reasonable practicability if very much a matter for the Tribunal rather than for the Appeal Tribunal: see in this respect Palmer v Southend-on-Sea Borough Council at paragraph 212. The answer to the question of reasonable practicability is pre-eminently an issue of fact for the Tribunal. 

29.	Added in this case to that difficulty is the context within the Dispute Resolution Regulations. I am not disposed to take such a narrow view of the Regulations as Mr Brittenden suggests. What is feasible, to use the phrase which he adopted, is not quite the test set out in Palmer. The question there is whether it was “reasonably feasible” to present the claim to the Tribunal. Mr Brittenden himself gave as a possible example the employee who might not put in a claim because she was told by the line manager that it was pointless to do so. There is, in my judgment, no easy or bright line that an Appeal Tribunal can safely adopt when deciding whether it was reasonably practicable for Miss Brown to put in a grievance. It is a matter for the Tribunal to find the facts and apply the test. 

30.	For those reasons I have come to the conclusion that this question also should go back to the Tribunal, so the appeal and the cross appeal will both be allowed. The matter will be remitted to the Employment Tribunal. It seems to me that in this case it would be much better dealt with by a fresh Tribunal Chairman rather than by the Chairman who dealt with the matter below. The Chairman who deals with the matter afresh will have before him two questions: whether the Tribunal has jurisdiction to hear the claim for victimisation; and whether the Tribunal has jurisdiction to hear the claim given the time limit at section 68(1)(a) of the Race Relations Act 1976. 

31.	I am conscious, having heard both sides in this case, that both sides may be minded to present evidence and argument to the Tribunal that was not heard before the Tribunal Chairman on the last occasion. There is some indication in her decision that, since she also had to deal with the question of protected acts, there may have been some pressure of time on the last occasion as well. Suffice it to say that no points are ruled out either way by this appeal hearing. The argument that Mr Ibekwe wished to present relating to the letter in April is open to him if he wishes to take it.