Appeal No. UKEAT/0373/06/RN

EMPLOYMENT APPEAL 
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal in London 
	On 6 October 2006
Judgment handed down on 18 October 2006

Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

(sitting alone)

MR G S VIRDI	  APPELLANT

COMMISSIONER OF POLICE OF THE METROPOLIS	 FIRST RESPONDENT

CENTRAL POLICE TRAINING & DEVELOPMENT AUTHORITY (CENTREX)	  SECOND RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellants	
Mr Mohinderpal Sethi
(of Counsel)
instructed by:
Messrs Russell Jones & Walker
Solicitors
Swinton House
324 Gray’s Inn Road
LONDON
WC1X 8DH

For the  First Respondent	
Mr Clive Sheldon
 (of Counsel)
Instructed by:
Commissioner of Police for the Metropolis 
Directorate of Legal Services
New Scotland Yard
Broadway
LONDON
SW1H 0BG
	
For the Second Respondent	Mr James Boddy
(of Counsel)
Instructed by:
Eversheds LLP
Kett House
Station Road
CAMBRIDGE
CB1 2JY	

SUMMARY

The appellant lodged claims under the Race Relations Act 1976 against the First Respondent. He contended they were in time. The ET held that they had been lodged a day out of time and refused to extend time on the just and equitable ground. The EAT held that the chairman was right to find that the claim was lodged out of time but that in the circumstances of the case on any reasonable exercise of discretion, time should have been extended. Accordingly, the EAT granted an extension and remitted the case to be heard on its merits. 

The claim against the Second Respondent was three months out of time. The Tribunal refused to extend time. The EAT held that the approach of the chairman involved an error of law and remitted the issue to a different chairman to determine whether to extend time or not.

THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1.	This case raises an appeal resulting from a pre-hearing review held by Miss Lewzey sitting alone at the Employment Tribunal at London Central. 

2.	At that hearing she made a number of rulings.  She held that the claimant is disabled within the meaning of the Disability Discrimination Act 1995. This is the subject of a separate appeal by the first respondents and I have given a separate judgment in respect of it. 

3.	She further held that certain claims of direct race discrimination and victimisation under the Race Relations Act 1976 against the first respondent were out of time and that it was not just and equitable to extend time.  Similarly, in relation to the claim of disability discrimination against the second respondent, although here it was admitted that the claim was out of time, she again held that it was not just and equitable to extend time. Accordingly, those particular claims against the first and second respondents were dismissed.  The claimant challenges both these rulings.  I deal with that appeal in this judgment. Throughout this judgment I refer to the appellant as the claimant, as he was below.

The background.
4.	The circumstances in which these claims arose can be dealt with very succinctly because very little detail is material to the determinations made by the chairman in this case.

5.	The claimant is a serving detective sergeant of Asian origin working within the Serious Crime Directorate. He was dismissed from the Service on 3 March 2000 but lodged claims for race discrimination and subsequently, victimisation discrimination. It was found that he had been unlawfully discriminated against on grounds of race and he was reinstated. I understand that his treatment led to certain investigations and a recommendation as to how the Metropolitan Police should deal with race cases like his in the future.

6.	Some time after his reinstatement, he wrote to the Police Promotions’ Examination Unit in August 2004 saying that he had an impairment of his eyesight. I deal with the detail below. He wanted to be given an additional 15-20 minutes to sit the examination which is potentially material to his promotion. He also wanted a 5 minute break for each hour of the exam. That application was supported by Assistant Commissioner Hogan-Howe. He sat the relevant exam, known as the Ospre Part I exam, on 4 September 2004. He passed it, notwithstanding that no adjustments were, in fact, made. However, he complained about the refusal to make adjustments for him. He also sought an adjustment in respect of Ospre Part II. Again, no adjustments were made, but this time he was unsuccessful. 

7.	Meanwhile, on 1 March 2005 the first respondent had launched the trial of what is known as the ‘towbar scheme’. This enables officers who passed Ospre Part I to apply and enter into the towbar process. They can, through work place assessments, become detective inspectors without passing Ospre Part II. 

8.	His application was considered by a recommending panel which, although treating his case initially as borderline, did make a recommendation that he should be promoted. Subsequently, however, the Central Review Panel, which determined who should be promoted, did not support that recommendation and therefore he was not selected. 

9.	He sought feedback and appealed against that decision. That appeal was unsuccessful. The appeal panel made that determination on 2 June and he was notified the following day on 3 June. 

10. 	He put in his application for direct race discrimination and victimisation discrimination on 2 September. His disability claim against the First Respondent was their failure to progress his grievance and also to deal adequately with his request for reasonable adjustments. The complaint as to direct race and victimisation discrimination related, amongst other matters, to the rejection of his towbar application. 

11.	The claim against the Second Respondent was not made until the original claim was amended on 18 November 2005. The second respondent is the statutory body responsible for running the Ospre examinations. It is quite independent of the First Respondent. The complaint against that body relates to disability discrimination only and there is no race discrimination claim against it.

The relevant legislation.

12.	Section 4(2) of the Race Relations Act provides as follows:  
“It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee – 
(a)	in the terms of employment which he affords him; or
(b)	in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or
(c)	by dismissing him, or subjecting him to any other detriment.”

Section 68(1)(a) and (6) provide: 
“68 (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.]

68 (6): A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”

The Tribunal’s decision.
13.	In summary form, the decision was as follows.  The Tribunal held that the claim against the First Respondent was a day out of time and that it was not just and equitable to extend time.  Both these findings are challenged by Sergeant Virdi.  

14.	It was conceded that the complaint against the second respondent was out of time and that the only issue was whether it was just and equitable to extend time. The Tribunal concluded that it was not and this is the decision now under challenge.  I set out below the reasoning of the tribunal with respect to these decisions.  

From when does time run?
15.	The first issue before the tribunal was when time began to run.  It is common ground that if it was 3 June when Sergeant Virdi was notified of his unsuccessful appeal, then he put in his application in time.  If, on the other hand, it was 2 June when the decision to reject his appeal was taken, then it was one day out of time.

16.	The parties appear to have conducted the argument below on the basis that the question when time begins to run depends upon whether the case can properly be analysed under section 4(2)(b) or 4(2)(c).  Mr Sethi apparently accepted that if it was under the former then the relevant decision was taken on the 2 June, and that would be when the “act complained of was done” within the meaning of section 67(1)(a). 

17.	However, relying on the decision in Aniagwu v London Borough of Hackney and Owens [1999] IRLR 303 which I discuss more fully below, it was assumed that if it could be said that Sergeant Virdi had suffered a detriment within subsection (c), then the relevant act- namely the rejection of the appeal- would not be complete until it was communicated to the employee. So it was argued that the dismissal of the appeal could fall under both subsections (b) and (c).  The Tribunal summarily rejected this argument, holding that the case fell under (b) and that it could not also fall under (c) because the word “other” meant that the detriment must be something other than a detriment already caught within the other two paragraphs. 
 
18.	That was plainly right and Mr Sethi no longer seeks to contend otherwise.  However, he advances two other arguments in support of his contention that time did not begin to run until 3 June.  First, he submits that even if subsection (b) is the applicable provision, nonetheless the act was not done until it was communicated to the employee.  Second, he submits that there are in reality two acts involved in the rejection of the appeal, the actual decision to reject, and the separate communication of that rejection to the employee, and that time began to run from when the communication took place.
 
19.	I will deal with this latter argument first.  In principle there is no reason why the rejection could not amount to a separate act of discrimination, such as if the communication itself was made in abusive racist terms.  But that is not suggested here.  The argument is that the second act of communication somehow acquires an unlawful character from the original unlawful decision.  In my judgment, that cannot be right.  The fact that the original decision is tainted with racism would not mean that the secretary who communicated it would likewise be committing a racist act. The two acts cannot simply be treated as one.  So this argument goes nowhere.
 20.	The other ground raises a point of some interest.  The argument is that the act is not done when the decision was made but was only done, in the sense of completed, when communicated. This was not in fact how the case was advanced below, but it is closely related to the way in which it was put and no objection was taken by Mr Sheldon to what is, in any event, a pure point of law.  

21.	In support of this argument Mr Sethi relied upon the decision of the EAT (Morison P presiding) in Aniagwu, to which I have made reference.  In that case the employee had pursued an internal grievance concerning the failure to give him a top up loan. He alleged that he was being discriminated against on grounds of race. An issue arose as to when time began to run. Was it when the employer decided to reject the grievance or when the employee was notified of that fact? The Employment Tribunal held that it was the former but the EAT disagreed.  Mr Justice Morison said this: 

“On this issue we have to say that we are unanimously of the view that the industrial tribunal were wrong to have concluded that time started to run from 20 March. On analysis, what the applicant was complaining of falls within s.4(2)(c) of the Race Relations Act 1976, namely that his employers had subjected him to a detriment; namely unlawfully dismissing his grievance brought against his manager: unlawfully in the sense that the decision was tainted by race.

It seems to us that an applicant must be able to identify the detriment to which he has been subjected before he can present a complaint and that where, as here, the act consists of a refusal to accept his grievance, then he was only subjected to a detriment when he was notified that his grievance had been rejected. That is precisely analogous to the decision of the Employment Appeal Tribunal in the British Airways Board [1982] IRLR 238 case, which was also concerned with similar words.”

 22.	As the EAT noted, it followed an earlier decision of the EAT (Neill J presiding) in the case of British Airways Board v Clarke_and Havill [1982] IRLR 238 where the Tribunal found that the rejection of an appeal against a  reprimand did not amount to an “action short of dismissal” until communicated to the employee. However, as the Tribunal made plain in that case, this was based on a concession by the employers that the reprimand itself did not become effective or constitute action short of dismissal until communicated. 
 
23.	Mr Sethi submits that precisely the same principle applies here.  Until the rejection of the appeal had been communicated to the claimant, there was no relevant act done, in the sense of completed, within the meaning of section 67(1)(a). He supported this construction by noting that policy would favour it; the three months time limit would be shortened, and potentially significantly so, if the employer could conceal the fact that the decision had been made simply by failing to tell the employee.

24.	Mr Sheldon concedes that there may be cases where the act is not done until it is communicated.  He suggests, for example, that in the case of a reprimand or a warning there is a powerful argument, reflected in the concession in the British Airways Board case, that the purpose and nature of the sanction requires that it should be communicated; it is after all intended to guide future conduct.  However, he says that the refusal of promotion, or any appeal against such a refusal, cannot sensibly be said to have occurred only when communicated.  The act is complete when the decision is taken.

25.	I agree. I concede that there is much to be said for time not beginning to run until an employee is made aware of the decision which confers the cause of action.  But that is not how the legislation has been drafted; the question is when the act is done, in the sense of completed and that cannot be equated with the date of communication.   I also confess to having some difficulty with the Aniagwu case.  As desirable as it might be that time should not run until the employee knows of the detriment, it is difficult to see why, at least in a case where the grievance relates to a refusal to grant a benefit, the detriment is not suffered with the rejection of the grievance, whenever that is communicated and whether the employee knows of it or not.  It surely cannot always be the case that a detriment is only suffered when known.  If one employee is paid less than another on unlawful grounds, such as race or sex, I would have thought that there is clearly a detriment every time the employee is underpaid, whether he is aware of it or not, and indeed even if he never becomes aware of it.

26.	In any event, whether the rejection of a grievance requires communication or not, I am satisfied that in this case the rejection of the appeal was the date the decision was taken to reject it.  That was when the act was done within the meaning of section 67(1)(a). It follows that the claim was a day late.

The just and equitable extension.
27.	The second challenge is directed at the Tribunal’s refusal to extend time on the basis that it was not just and equitable to do so. The principles applicable are well established; the onus is on the claimant to show why time should be extended; Tribunal discretion is broad; and it can only be challenged where it is wrongly exercised or perverse.  The following extract from the judgment of Auld LJ in the decision of the Court of Appeal in Robertson v Bexley [2003] IRLR 434 succinctly summarises the key points:
“The tribunal, when considering the exercise of its discretion, has a wide ambit within which to reach a decision. If authority is needed for that proposition, it is to be found in Daniel v Homerton Hospital Trust (unreported, 9 July 1999, CA) in the Judgment of Gibson LJ at p.3, where he said:

“The discretion of the tribunal under s.68(6) is a wide one. This court will not interfere with the exercise of discretion unless we can see that the tribunal erred in principle or was otherwise plainly wrong.”

It is also of importance to note that the 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.”

28.	However, whilst the weighing of factors is for the Tribunal, the Court of Appeal has emphasised the importance of a Tribunal taking all significant factors into account.  The failure to do that will amount to the wrong exercise of discretion. 

29.	What factors are material is not always obvious. However, the courts have recognised that a valuable analogy is found in section 33(3) of  the  Limitation Act [1980] which concerns factors to be considered when the question of extending time arises in personal injury actions: see British Coal Corporation v Keeble [1997] IRLR 336, para 8 per Mrs Justice Smith.   CPR rule 3.9(1) concerning relief from sanctions in civil cases where rules or orders have not been complied with, provides a similar useful checklist.       

30. 	Tribunals are not required to adopt a checklist, however.  Whilst they would be wise to do so to avoid falling into error, it is not of itself an error of law to fail to do so: see the observations of Peter Gibson LJ in London Borough of Southwark v Afolabi [2003] ICR 800 at para 33. As his Lordship there observed, it will be an error of law for a Tribunal to leave a significant factor out of account and failure to adopt the checklist increases that risk.  

31. 	The Tribunal summarised its conclusions on this question in connection with the First Respondent at paragraph 24 of the Decision as follows:
“24	Therefore, the final matter is whether it is just and equitable to extend time. In relation to this I take into account that the claim was presented one day out of time. Mr Virdi has brought previous claims to the Employment Tribunal. He was represented by the Police Federation from early on. He told me in answer to a question that he contacted the Police Federation in the middle or end of June. Shortly after that time he was represented by his present solicitors. He also said in evidence that he was aware of the three month time limit. Mr Sethi has referred to London Borough of Southwark v Afolabi [2003] IRLR 220, but in that case the Claimant did not discover the evidence for nine years and presented the claim within three months. Mr Virdi knew of the outcome of the appeal on 3 June. He is very familiar with the Tribunal process and there is no explanation for the delay. I have been referred to the Judgment in Robertson v Bexley Community Centre [2003] IRLR 434. Paragraph 25 says:

“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.”

This claim is out time. I am not satisfied that Mr Virdi has shown that it is just and equitable to extend time and is therefore my judgment that there is no jurisdiction to consider the claims of direct race discrimination and victimisation against the First Respondent which are dismissed.”

32.	Mr Sethi submits that the Tribunal’s analysis demonstrates that it failed to take account of certain relevant and significant factors. These included the fact that a fair trial of the issues was still possible, plainly a potentially relevant factor (see for example DPP v Marshall [1998] ICR 518); that the claimant did not delay in obtaining legal advice; that the extension sought was only one day; that there was no prejudice to the First Respondent; and that the Tribunal did not consider the checklist of factors which is listed in the Limitation Act 1980, s.33.  The last contention is, however, unsustainable for reasons we have given.

33.	He also contends that the chairman was wrong to say that Afolabi could be distinguished on the grounds that the claimant had put in her claim within three months of hearing of it, because that was equally the position here. I accept that, although that is a point of limited significance since I do not think he can get any real assistance from how discretions were exercised in other cases.

34.	Finally, he submits that the chairman was in error in holding that the claimant had provided no explanation for the delay.  He had been asked specifically why he did not put the claim in earlier and his response was “ask that of [my solicitors]”.  So, says Mr Sethi, it is plain that he was expecting his lawyers to ensure that the claim would be lodged in time, a perfectly reasonable assumption and a proper explanation for the delay.  

35.	It is well established, and common ground, that the claimant cannot be held responsible for the failings of his solicitors: see Steeds v Perverill Management Services Ltd [2001]EWCA Civ 419. para 27. For that reason it is not legitimate for a Court to refuse to extend time merely on the basis that the solicitor has been negligent and that the claimant will have a legal action against the solicitor.  Mr Sethi went so far as to submit that the existence of a potential claim against a legal adviser was a factor which should not be taken into account at all.  He contends that this was the view of the EAT in Chohan v Derby Law Centre [2004] IRLR 685. 

36.	 I am not satisfied that this was what the EAT was saying in that case, but if they were then the observation cannot sit with the views of the Court of Appeal in the Steeds case when it accepted that it would be a factor, and sometimes a highly relevant factor, in the exercise of the discretion.

37.	As to the first ground, Mr Sheldon submitted that it was unrealistic to assume that the tribunal did not have all material factors in mind.  The chairman well knew when the claimant had sought legal advice. It was plain that the delay of one day would not prejudice the First Respondent, such as by affecting the ability of witnesses to give evidence, and nor would it make a fair trial impossible. None of those consequences had ever been urged upon her.

38.	It is true that the Tribunal has not, in terms, referred to each of the factors identified in the grounds of appeal, but I agree with Mr Sheldon that it is fanciful to think that the chairman was not wholly aware of these features. They were obvious and undisputed. What the chairman has done is to concentrate in her analysis on those factors which have led her to refuse the application; she has not in terms identified those which are not prejudicial to the claimant.   I accept that it would have been preferable for all the relevant factors to have been identified expressly so that there could be no doubt that these had been part of her thinking when exercising the discretion.  But I think it would be unjust to the chairman to infer that these features were not in her mind because she did not expressly advert to them.  Accordingly, I reject this part of the appeal.

39.	However, I think there is force in Mr Sethi’s submission that the chairman was wrong to say that Sergeant Virdi had given no explanation for the late claim.  Mr Sheldon says that it is no explanation simply to say that he had put the matter in the hands of his lawyers.  Sergeant Virdi did not explain to the Tribunal why the solicitors put the claim in late, and even suggested that it could not be inferred that Sergeant Virdi himself was without fault because it was conceivable that he had instructed the solicitors not to put in the claim before the date when it was lodged. 
 
40.	I wholly reject that submission.  When assessing whether time should be extended the fault of the claimant is plainly relevant, as it is under section 33.  So if the failings are those of the solicitor and not the claimant that is highly material.   But the errors of his solicitors should not be visited on his head, as the Steeds case and the authorities to which it refers, make abundantly clear. So whatever the reason why the solicitors failed in their duty would be immaterial when assessing the claimant’s culpability, save perhaps for the possibility, which I consider to be wholly fanciful, that they were acting on his instructions and that therefore that he was indeed personally to blame for the late submission.  The relevance of the explanation here is that it indicates that the blame for the late claim cannot be laid at Sergeant Virdi’s door.  That is an important consideration in the exercise of discretion.

41.	It seems to me that this finding of no explanation was an important element in the chairman’s reasoning.  In my judgment it means that the decision was reached on the basis of a material misdirection.  The ruling cannot therefore stand.  

42.	I have considered whether I should reach a decision myself on the material before me or whether I should remit the matter to another chairman.  Mr Sethi says that the only possible outcome, if the discretion is properly exercised, is that time must be extended.  The case was a day late solely because of the fault of the solicitors; Sergeant Virdi personally was not at fault.  He took legal advice speedily and reasonably relied on the solicitors to deal with the matter; and there is no prejudice to the First Respondent if the case goes ahead, apart from losing the limitation point itself. 

 43.	I bear in mind the overriding objective, including in particular the obligation to save costs.  I have come to the conclusion that this is an exceptional case where I can be confident that a tribunal, properly approaching the issue, would be obliged to conclude that the only factor weighing against the extension of time is the availability of a legal action against the solicitor.  That, however, is not on its own a legitimate reason for refusing to extend time, as Steeds shows. It would simply give the respondent a windfall at the expense of the solicitors.   

44.	Accordingly, I uphold the appeal on this ground, rule that time should be extended, and remit the matter to the Tribunal for a hearing on the merits.

The case against the Second Respondent
45.	This raises rather different issues because the circumstances are different.  The claim is substantially out of time. The failure to make reasonable adjustments took place on 18 May and therefore the time limit expired on 17 August, yet the claim was not presented until 18 November, that is some three months later.  The claimant contends that the reason for this was that there was a misunderstanding as to the nature of Centrex (the Central Police Training and Development Authority). The claimant had not appreciated that this was a separate statutory body although, as the Tribunal found, the statutory framework makes that abundantly clear.

46.	The Tribunal summarised its conclusions here as follows: 
“In this connection Mr Sethi has argued that because all contact relating to concerns about the examinations had to be made to the Osprey Help Desk which I see from pages 598, 605 and 629. Officers were under a misapprehension in relation to Centrex. However a reading of the statutory framework makes clear that the Second Respondent is an independent statutory body. In addition, Mr Virdi did have legal advice. I take into account exactly the same factors in relation to this issue as I have taken into account in relation to the time point concerning claims of race discrimination and victimisation against the First Respondent. I conclude that it is not just and equitable to extend time and there is no jurisdiction to consider the complaint of disability discrimination against the Second Respondent which is dismissed.” 

47.	Mr Boddy, counsel for the Second Respondent, strongly submitted that the analysis here could not be flawed.  The factors here were very different to those applicable to the First Respondent.  The chairman could not legitimately be criticised for failing specifically to mention all relevant factors and this Tribunal would be usurping the function of the Employment Tribunal to overturn its decision.  

48.	Mr Sethi submits that the position here is essentially the same as with the First Respondent. The claimant took legal advice and relied upon his lawyers to lodge the claim. This was a complete explanation for his failure to lodge a claim against the second respondents in time. He was not personally to blame. 

49.	I do not accept that the two applications ought necessarily to be treated as identical. Not only is the delay greater in relation to the second respondent, but in my judgment it is not at all clear that the solicitors were necessarily negligent in failing to take proceedings against the Second Respondent. That may depend upon the instructions given to them by the claimant. 

50.	However, I accept that the chairman made the same misdirection in assuming that leaving the matter to the solicitors was not in principle an explanation for the delay. If that is indeed what the claimant did – it does not appear to be clear from the evidence before the Tribunal – then this would be highly material in the exercise of the Tribunal’s discretion. 

51.	In my judgment, however, it cannot in relation to the Second Respondent be said that the only proper exercise of discretion is in favour of an extension of time. Accordingly, I would remit the matter to another chairman to decide this matter afresh.

Conclusion
52.	The appeal against the First Respondent succeeds. I substitute a ruling that time should be extended and the appeal remitted to the Tribunal for a hearing on the merits.
53.	The claim against the Second Respondent also succeeds. In this case the matter is remitted to a different Employment Tribunal for it to determine whether it is just and equitable to extend time or not.