Bexley Community Centre v (t/a Leisure Link)

LORD JUSTICE AULD: This is an appeal by the Bexley Community Centre against the decision of the Employment Appeal Tribunal quashing the decision of an Employment Tribunal. By its decision the Employment Appeal Tribunal: 1) dismissed Mr Francis Robertson's claim for racial discrimination on the ground that it was outside the three months limitation period for making it, and 2) held that it would not be just and equitable to consider the complaint out of time, as provided respectively by section 68(1) and section 68(6) of the Race Relations Act 1976. The Appeal Tribunal also remitted his claim for redetermination by a differently constituted tribunal.

The facts giving rise to the claim and to the appeal are as follows. In early 1999 Mr Robertson, who is of black Caribbean origin, began employment with the Community Centre on a probationary basis for six months as a plant technician based at one of its three leisure centre sites. There were three other established technicians, one of whom was Mr Don Pankhurst, who was due to retire shortly. The Community Centre's intention was that Mr Pankhurst should have a part in training Mr Robertson to operate the plant at all three sites so that, on Mr Pankhurst's retirement, he could take over his duties, sharing them with the others on a permanent basis.

Almost from the very start of Mr Robertson's probationary employment, Mr Pankhurst allegedly subjected him to racially discriminatory treatment. In April 1999 Mr Robertson complained to the Community Centre about Mr Pankhurst's behaviour towards him. In doing so, he stated that he simply wanted Mr Pankhurst to stop that behaviour, not that he should be dismissed for it.

On 29th May 1999 the Community Centre convened a disciplinary hearing at which Mr Pankhurst produced a letter stating that he was sorry if his remarks had caused offence and that he would be more than happy to assist in Mr Robertson's training. In view of that apology and promise for the future, the Community Centre decided to deal with the matter by giving Mr Pankhurst a formal warning, which it did, and seemingly did with Mr Robertson's concurrence. Shortly afterwards, however, Mr Pankhurst took sick leave. He remained away from work until mid-September of that year, that is, for some three-and-a-half months.

The Community Centre had hoped to arrange a reconciliation meeting between Mr Robertson and Mr Pankhurst, but in view of Mr Pankhurst's long illness that had to wait. In the meantime, and in Mr Pankhurst's absence, Mr Robertson continued with his probationary employment. In the course of it there occurred a number of incidents of which he was later to complain.

The first was an investigation in early September 1999 by the Community Centre into an inappropriately high level of chemicals found in the teaching pool at one of the leisure centres for which Mr Robertson was then responsible. As part of that investigation, a member of the Community Centre sought to interview him. Unfortunately, at the time requested for interview, Mr Robertson himself was sick and, because the matter was unresolved, the Community Centre decided that it would be wise to suspend him from duty until he returned to work and could be interviewed. That took place on 10th September. As a result of the account given by Mr Robertson in interview, the Community Centre found him not to be culpably responsible for the high level of chemicals in the pool and took no disciplinary action against him.

A day or two after that, when Mr Robertson had either just returned from work from being ill or was just about to do so, the Community Centre decided that, because of the inability, through Mr Pankhurst's long illness, to complete Mr Robertson's training, his probationary period would have to be extended. It decided also to relocate him to another of its leisure centres in order to make sure that there would be no opportunity for difficulty between Mr Pankhurst and Mr Robertson when Mr Pankhurst returned, as he was about to do, from sick leave in the middle of that month and before the reconciliation meeting between them that was still planned by the Community Centre. So Mr Robertson was transferred temporarily to work at that other site until the meeting could be arranged.

It seems that the investigation and the interviewing of Mr Robertson about the high level of chemicals in one of the pools, the extension of his probationary period, and his temporary relocation to another of the leisure centres, led him to believe that his employer was racially discriminating against him.

On 23rd September 1999 Mr Robertson completed an originating application to the Employment Tribunal in which he complained about those matters and also about the earlier behaviour of Mr Pankhurst. He filed it with the Tribunal on 4th October 1999. In his application he also complained about the Community Centre's failure to deal adequately with Mr Pankhurst in the meantime in respect of that earlier behaviour.

On the following day, 5th October, the planned reconciliation meeting between the two men took place. But it was a dismal failure. Mr Pankhurst was racially abusive to Mr Robertson and refused to shake his hand. The Community Centre immediately set in train procedures to discipline him for that, but he pre-empted that outcome by resigning on the following day. Those events of 5th and 6th October, postdating, as they did, Mr Robertson's application to the Employment Tribunal, were not and could not be considered as part of his application. If he had wished to have them considered, he could have issued a fresh application asking the Tribunal to dispense with service and hear the complaints in both applications at the same time. But he did not do that.

The Tribunal, when it met to consider the complaints of Mr Robertson, considered first the merits of all of his complaints, not just those occasioned by Mr Pankhurst's behaviour in early 1999. It considered the complaints about the investigation into the abnormally high levels of chemicals in the pool, the extension of Mr Robertson's probationary period and the temporary relocation of him to another leisure centre.

Having heard all the evidence going to those complaints, the Tribunal reserved its decision. However, it subsequently re-opened the matter to enable the parties to address it on issues of limitation under sections 68(1) and 68(6) of the 1976 Act, with specific reference to the complaints about Mr Pankhurst's conduct. Having heard argument on those issues, it then decided that the only candidate for a finding in his favour was Mr Pankhurst's undoubtedly racially discriminatory behaviour towards him in early 1999, but that that was clearly barred under section 68(1) as having arisen more than three months before he presented his claim to the tribunal. It also decided that in the circumstances it would not be just and equitable to extend that period or to consider his claim outside it under section 68(6).

As to Mr Pankhurst's conduct, the tribunal found that it did not form part of a continuing act of discrimination, and that the other matters of which Mr Robertson had complained were of a wholly different nature from, and independent of, Mr Pankhurst's conduct. It found that it was not just and equitable to consider the complaint out of time, because Mr Robertson had urged the Community Centre not to dismiss Mr Pankhurst, so that a written warning was a sufficient sanction in May 1999, and because, in its view, the Community Centre had acted reasonably in issuing such a warning and proposing the reconciliation meeting. This is how the tribunal expressed that reasoning in paragraph 33 of its decision:

The Employment Appeal Tribunal, in its approach to the issue of limitation, was clearly prepared to accept the correctness of the view that, as to Mr Pankhurst's conduct, the claim would be statute barred under section 68(1) unless the Tribunal considered that it would, in the words of section 68(6), "in all the circumstances of the case be just and equitable to consider it out of time". That is why in paragraph 14 of its decision it said that the latter point went to the heart of the case. However, in its consideration of "all the circumstances of the case", adopting the statutory words, the Appeal Tribunal took three steps that, in my view, require careful examination.

First, it took into account events post-dating the presentation by Mr Robertson of his claim, namely Mr Pankhurst's behaviour at the reconciliation meeting of 5th October 1999. Second, it only took into account part of the relevant post-claim events. And it substituted its own view of the facts on them for that of the Employment Tribunal, so as to find a continuing act of discrimination on the part of the Community Centre, thereby arguably bringing the claim within the three months period or justifying an exercise of discretion under section 68(6) to consider the claim outside it. Third, it concluded that Tribunal had wrongly refused to exercise discretion under section 68(6). That error, it held, went to the heart of the case and, therefore, tainted its rejection of Mr Robertson's other claims of unlawful racial discrimination that had nothing to do with Mr Pankhurst. These claims, if considered together with the Pankhurst conduct, might have amounted to a continuing act of overall unlawful racial discrimination by the Community Centre.

Miss Wendy Outhwaite for the Community Centre began her submissions by reminding the court that an appeal lies from an Employment Tribunal to an Employment Appeal Tribunal only where there was an error in law or of principle, or which was wrong in the sense that it was perverse; in shorthand, plainly wrong. Here, she submitted that the Tribunal's decision that the claim was out of time was not plainly wrong or perverse, nor was its refusal to consider the claim out of time on just and equitable grounds. Therefore, she said, the Appeal Tribunal had no jurisdiction to substitute its own view on either of those matters. She suggested that the Appeal Tribunal's error in this respect resulted from an erroneous conflation of the two quite separate issues, whether the claim was out of time and, if it was, whether it was just and equitable nevertheless to consider it. There is some truth in that complaint, but whether it contributed to the Appeal Tribunal's decision is debatable.

I turn first to the Appeal Tribunal's reasoning on the correctness of the Tribunal's finding that the claim, as framed, was outside the limitation period. It was clearly of the view that the claim was out of time unless there was a basis upon which Mr Robertson could rely on the conduct of Mr Pankhurst at the reconciliation meeting of 5th October 1999 and/or on the Tribunal having wrongly dismissed Mr Robertson's other complaints, so as to support a claim for a continuing act of racial discrimination. It was also clearly of the view that Mr Robertson had a meritorious claim for such discrimination on the strength of Mr Pankhurst's repeat on 5th October of his earlier disgraceful behaviour. This is what the Appeal Tribunal said in paragraph 15 of its decision:

If reliance on Mr Pankhurst's conduct in early 1999 had stood on its own, as the Employment Tribunal found, the claim was clearly out of time. The only way round that would have been for Mr Robertson to issue a fresh application and to have asked the Tribunal to dispense with service and hear both complaints at the same time. However, as Miss Outhwaite has submitted, even assuming that Mr Pankhurst's post-claim behaviour could be taken into account for this purpose, there was not, on the evidence any continuing act. The Tribunal had found that his behaviour considered on its own, or with the other grounds of complaint as to the Community Centre's treatment of Mr Robertson (i.e. suspension, extension of probationary period and relocation), would not constitute a continuing act.

Miss Outhwaite submitted that the Tribunal's conclusion about that was correct in law, since the evidence had clearly not established any practice, policy, rule or regime governing such decisions. She referred in that context to a number of authorities: Sougrin v Haringay Health Authority [1992] IRLR 416, a decision of this court; Ayobiojo v NALGO/UNISON Trade Union (unreported 20th May 1998) and Jack v Pinkerton Security Services Limited [2001] EWCA Civ 697.

It is to be noted that the Employment Appeal Tribunal did not suggest that there was a continuing act, except in the behaviour of Mr Pankhurst. In my view, on the state of the law, there was no basis on which the Tribunal could have found that Mr Pankhurst's behaviour in early 1999 and at the reconciliation meeting on 5th October amounted to a continuing act. If further authority is required for that conclusion, it is to be found in Owusu v London Fire and Civil Defence Authority [1995] IRLR 574, EAT, in which it was held that to establish a continuing act it must be shown that the employer had a practice, policy, rule or regime governing the act said to constitute it. The Appeal Tribunal did not apply such a test. It simply relied on the fact, as has Mr Robertson on this appeal, that Mr Pankhurst's attitude had not changed.

There was, contrary to Mr Robertson's submissions, no evidence that his employer, the Community Centre, had acquiesced in, or condoned, Mr Pankhurst's behaviour at any time. And, in any event, the Appeal Tribunal was not entitled to take the 5th October 1999 incident into account in considering whether there was a continuing act. That behaviour took place, as I have said, after the date of Mr Robertson's application, and could not properly be taken into account for the purpose of determining whether the complaint was out of time. Though it may be that it could have been relevant to the second and quite distinct issue whether it was just and equitable to consider the claim out of time (see Din (Ghulam) v Carrington Viyella Ltd (Jersey Kapwood Ltd) [1982] IRLR 281, [1982] ICR 256, EAT, and also Ponsford-Jones v Hampshire Education Authority and another (unreported, 25th November 1997)).

So much then for the first issue, in which the Appeal Tribunal, in my view, not only went outside the bounds of its jurisdiction on appeal from the Employment Tribunal in seeking to substitute its own view of the facts, but failed to have regard to the law as to what constitutes a continuing act.

I turn now to the second issue. The decision by the Employment Tribunal not to exercise its discretion to consider the claim on just and equitable grounds. There are a number of basic propositions of law to which Miss Outhwaite has referred us which govern the way in which this exercise has to be undertaken. If the claim is out of time, there is no jurisdiction to consider it unless the Tribunal considers that it is just and equitable in the circumstances to do so. That is essentially a question of fact and judgment for the Tribunal to determine, as it did here, having reconvened for the purpose of hearing argument on it.

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 and Homerton Hospital Trust (unreported, 9th July 1999, CA) in the judgment of Gibson LJ at page 3, where he said:

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.

Mr Robertson directed the bulk of his submissions to this second issue, and via the Employment Appeal Tribunal's treatment of it, back to the first.

The main thrust of his argument was that the Community Centre did not reach a conclusion as to the disciplinary process it should adopt in relation to Mr Pankhurst's behaviour until after the 5th October 1999 incident. That was not, he submitted, a meeting of a different kind from that which had taken place on 29th May 1999, when Mr Pankhurst had apologised and promised not to repeat his racially discriminatory behaviour.

Mr Robertson submitted that the Appeal Tribunal correctly found that his and the Community Centre's response to the early discriminatory treatment by Mr Pankhurst worked in his favour on the issue of discretion. He contended that the Community Centre contributed to the delay in eventually bringing all these matters, and in particular Mr Pankhurst's 5th October behaviour, before the Employment Tribunal by the leniency of its treatment of him in May and, he suggested, by a failure to respond sufficiently quickly on 5th October.

With respect to Mr Robertson, I consider that last complaint unfair. It is plain that the Community Centre, as soon as it saw how Mr Pankhurst was behaving at the 5th October meeting immediately suspended him and instituted disciplinary proceedings against him. And, as I have said, before it could proceed with them on the following day, was pre-empted by Mr Pankhurst's resignation.

Mr Robertson also sought to pray in aid the other complaints that he had made and that had failed before the Employment Tribunal on the merits: the investigation of his conduct in relation to the chemicals in one of the pools; the extension of his probationary period of employment and his relocation to a different centre pending the planned reconciliation meeting with Mr Pankhurst.

There are difficulties for Mr Robertson in that line of argument, given the Employment Tribunal's rejection on the merits of his complaints under those heads. Was the Appeal Tribunal entitled to a take a different view, so enabling it to conclude that it would have been arguably just and equitable to allow the claim to proceed out of time? I have indicated earlier in the judgment the route by which the Appeal Tribunal took that course. It might help if I just put alongside each other the different approaches of the respective Tribunals. The Employment Tribunal in the last sentence or so at paragraph 33 of its decision, which I have already set out, said:

The Appeal Tribunal in that passage does not say that the Employment Tribunal was mainly wrong in its converse approach. It merely states a different view on the undoubted facts. But, in doing so, it is not evident, certainly from that passage or elsewhere in the judgment of the Appeal Tribunal, why precisely it has taken a different approach, or why, in the circumstances, it considers itself free to depart from the Employment Tribunal's view and exercise of its discretion in the matter.

As I have said, the Employment Tribunal had a very wide discretion in determining whether or not it was just and equitable effectively to extend time. It was entitled in the words of section 68(6) to consider all the circumstances, anything that it considered to be relevant.

In the circumstances, it was not, in my view, permissible for the Appeal Tribunal to criticise the Tribunal for having given weight to the fact that Mr Robertson had sought legal advice promptly and that the support of his union had been available. The Tribunal rightly considered the options open to him, had he taken proper advice. The most obvious of those was, as I have said, the issuing of a fresh originating application if there were limitation problems in the case he then sought to advance. But truth to tell, at the time when Mr Robertson issued his originating application his concern was not primarily with Mr Pankhurst, his concern was with the other matters that he subsequently advanced without success before the Tribunal. When he issued the originating application, Mr Pankhurst had yet to show that he had not changed.

The Appeal Tribunal, it seems to me, had no jurisdiction to overturn the Tribunal's decision on this exercise of discretion. There is no doubt from the way in which the Tribunal had dealt with the matter that it had given it careful consideration and had reached a satisfactorily reasoned decision. I cannot see any basis on which it could be said to have been plainly wrong, notwithstanding that the Appeal Tribunal would, if it had been dealing with matter at first instance, have taken a different view.

In the circumstances, I would allow the appeal.

LORD JUSTICE CHADWICK: I agree.

MR JUSTICE NEWMAN: I also agree.