EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17 February 1993

Judgment delivered on 10 March 1993

Before

THE HONOURABLE MR JUSTICE MAY

MR K M HACK JP

MS D WARWICK

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MISS O ADEKEYE APPELLANT

THE POST OFFICE RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised

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APPEARANCES

For the Appellant MR PAUL DEAN

(OF COUNSEL)

Messrs Anthony Gold Lerman & Muirhouse

The Hope Exchange

24 Southwark Street

London Bridge

LONDON SE1 1TY

For the Respondents MISS INGRID SIMLER

(OF COUNSEL)

The Post Office

Impact House

2 Edridge Road

Croydon

CR9 1PS

MR JUSTICE MAY: Miss Adekeye began employment with the Post Office on 12th February 1990. She was dismissed by means of a letter dated 7th June 1991 with effect from 8th June 1991. It is the respondents' case that she was dismissed on grounds relating to her conduct. They said in brief that she had admitted evading payment on postage on approximately 30 occasions and that she had been found in unauthorised possession of official envelopes. This was said to constitute theft and her dismissal was justified on those grounds.

The letter dated 7th June 1991 told her that she had a right of appeal and gave her the option of three ways by which she might do so. She chose to appeal through her recognised trade union. This internal Post Office appeal was heard on 6th August 1991. By a letter dated 15th August 1991 which she received on 17th August 1991, Miss Adekeye was told that her appeal had been unsuccessful. She then made an Originating Application to the Industrial Tribunal which was dated 23rd September 1991 and received by the Tribunal on 25th September 1991. She characterised her complaint as "Unfair dismissal (racial harassment)." She complained in substance that she had been dismissed for actions which were regarded as a perk and which were connived at by her employers in others who had not been similarly dismissed. In substance, therefore, she was complaining of unlawful racial discrimination. As she had been employed for less than two years, she was unable to bring a complaint of unfair dismissal.

Section 68(1) of the Race Relations Act 1976 provides:

"(1) An industrial tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done.

...

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

(7) For the purposes of this section-

(a) .....

(b) any act extending over a period shall be treated as done at the end of that period."

We notice that these provisions of the 1976 Act mirror those in section 76(1), (5) and (6) of the Sex Discrimination Act 1975.

On 9th March 1992, the Industrial Tribunal sitting at London South heard as a preliminary issue the question whether they had jurisdiction to hear Miss Adekeye's complaint having regard to the provisions of section 68 of the 1976 Act. They held that the effective date of the termination of her employment was 8th June 1991 and in effect that that determined the question under section 68. Miss Adekeye's Originating Application was presented 18 days outside the three month time limit starting from that date. The Industrial Tribunal then considered whether nevertheless it would be just and equitable to consider the complaint and decided that it would not. They accordingly dismissed her application.

Miss Adekeye appeals against this decision. Her notice of appeal set out two grounds of appeal. The first ground was in substance that the act complained of was, included or extended to the determination of her appeal and that the three month period did not start until 15th August 1991. The second ground was that the Industrial Tribunal wrongly exercised its discretion under section 68(6) of the 1976 Act. Mr Dean, counsel appearing on her behalf before us, abandoned the second of these grounds and argued the first only.

Section 1(1)(a) of the 1976 Act provides:

"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -

(a)on racial grounds he treats that other less favourably than he treats or would treat other persons ..."

Section 4(2) of the 1976 Act provides:

"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) ...

(b) ...

(c) by dismissing him, or subjecting him to any other detriment."

We are concerned to determine under section 68(1) of the 1976 what is "the act complained of". Mr Dean submits that this was either (a) Miss Adekeye's dismissal and that this is to be taken as incomplete or continuing until the determination of her appeal in August 1991, or (b) the determination of her appeal which, independently of her dismissal in June 1991, itself constituted an act of unlawful discrimination. She complains that white employees of the Post Office would not have been dismissed for doing what she is alleged to have done. She complains equally that white employees would not have failed upon appeal as she failed and that that was subjecting her to an "other detriment" within section 4(2)(c) of the 1976 Act.

Mr Dean accepts that, on authority, this argument could not succeed if Miss Adekeye's complaint were for unfair dismissal under section 67 of the Employment Protection (Consolidation) Act 1978, which provides:

"(1) A complaint may be presented to an industrial tribunal against an employer by any person (in this Part referred to as the complainant) that he was unfairly dismissed by the employer.

(2) Subject to subsection (4), an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months."

The date for consideration under this statutory provision is "the effective date of termination". Mr Dean accepts that it has been consistently decided that this is the date when the employee is originally dismissed and not a later date when an internal appeal procedure is determined. [The cases supporting this concession are referred to and discussed at Harvey Volume 4 at X [74].] He submits, however, that this case is not concerned with "the effective date of termination" under section 67(2) of the 1978 Act (and that the Industrial Tribunal erred in law in supposing that it was), but with the date of the "act complained of" under section 68(1) of the 1976 Act.

An authority on the meaning of section 68(1) of the 1976 Act is Lupetti v. Wrens Old House Ltd [1984] ICR 348. The issue there was whether the "act complained of" was the giving of notice terminating an applicant's employment or the operative date of that notice. The Employment Appeal Tribunal held that it was the latter. At p. 351, Balcombe J. said:

"Putting it quite shortly, it seems to us that the mischief which Parliament was intending to cover by those provisions was that of a person finding himself out of a job because of racial or other discriminatory grounds. If that be right (and it appears to us that it is), then the act complained of is the termination of employment and accordingly the effective date for considering when time starts to run is the date when the man finds himself out of a job rather than the date when he is given notice. Of course, the two may be the same as, inDedman's case, when the notice and the dismissal occurred simultaneously. But in this case it was clear that the employment continued until 28 February and, in our judgment, the act referred to in section 68(1) was that of the termination of the employment. That occurred on 28 February and accordingly the application was brought within time.

That is sufficient to dispose of this appeal but, in case it goes elsewhere and in order to give proper respect to the able arguments which were presented to us by both counsel in this case, it is right that we should deal with the two other grounds of appeal. The second ground of appeal was that section 68(7)(b) of the Act of 1976 provides that any act extending over a period should be treated as done at the end of that period. Mr Cofie, for the applicant, argues that the act of dismissal extended over the period between the giving of notice and the date when the notice expired. Accordingly, under that subsection, it should be treated as having occurred at the end of the period.

We accept Mr Jeremy's submissions on that ground of appeal both that it is inconsistent with the earlier argument which we have accepted - although that does not of itself render the earlier argument the less effective - but secondly that this was not an act done over a period. It was an act of dismissal. Either that act took place when the notice was given or, as we have held, when the employment was terminated. So we reject that ground of appeal."

We observe firstly that Lupetti's case decided only that in that case the "act complained of" occurred upon dismissal and not at an earlier date. The possibility of a later date deriving from an internal appeal procedure was not in issue. Secondly the Tribunal decided that the act of dismissal did not extend over a period but happened at a point in time. Section 68(7)(b) of the 1976 Act did not apply.

In British Airways Board v. Clark and Havill [1982] IRLR 238, the Employment Appeal Tribunal was concerned with section 24(2) of the 1978 Act. Section 23 of the Act gives every employee the right not to have action short of dismissal taken against him as an individual by his employer for the purpose of preventing or deterring him from legitimate trade union membership or activity. Section 24 provides:

"(1) An employee may present a complaint to an industrial tribunal on the ground that action has been taken against him by his employer in contravention of section 23.

(2) An industrial tribunal shall not entertain a complaint under subsection (1) unless it is presented to the tribunal before the end of the period of three months beginning with the date on which there occurred the action complained of, or where that action is part of a series of similar actions, the last of those actions, or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented within the period of three months."

Under section 24(2), the tribunal is concerned to determine the date of "the action complained of" or "the last of those actions". Mr Dean submits that these words are closer to those of section 68(1) and 68(7)(b) of the 1976 Act than to those of section 67(2) of the 1978 Act. In the British Airways Board case, the Employment Appeal Tribunal held that where an employee, against whom disciplinary action had been taken which he alleged was in breach of his rights under section 23, invoked an internal appeal procedure, time did not begin to run until after the final internal appeal had been dismissed. The "action complained of" consisted of all the disciplinary decisions about which the employee wished to complain, including the determination of the internal appeal. At paragraph 17 on p. 240, Neill J. said:

"We are satisfied that for the purpose of applying the limitation provision in s. 24(2) it is necessary on the facts of this case to look at all the disciplinary decisions of which Mr Clark and Mr Havill wish to complain. These decisions include the determinations of the appeals. It is clear from s. 24(2) that a complaint may be made about more than one action by an employer and we do not consider that the decided cases concerning appeals where an employee has been dismissed provide any exact analogy."

Mr Dean submits that, by close analogy, "the act complained of", i.e. the unlawful discrimination on racial grounds of which Miss Adekeye complains, includes the dismissal of her internal appeal.

Mr Dean also referred us to Sougrin v. Haringey Health Authority [1991] ICR 791 (E.A.T.) and [1992] ICR 650 (C.A.). There the applicant nurse, who was black, alleged that her failure to obtain a higher grading upon an internal appeal was due to racial discrimination. Her case was that a white staff nurse with whom she compared herself and who had also appealed was upgraded, whereas she was not. She made her complaint to the Industrial Tribunal more than five months after the dismissal of her appeal. She failed in her contention that the loss of pay appropriate to the higher grading constituted an act of discrimination extending over a period to which section 68(7)(b) of the 1976 Act applied. The loss of pay was held to be a consequence of the act alleged to be discrimination and not a continuing act. It was, however, taken for granted both in the Employment Appeal Tribunal and in the Court of Appeal that the act complained of was or included the determination of her internal appeal.

Miss Simler, counsel for the respondents, points out that, in both the British Airways Board case and in Sougrin's case, the employee's employment continued notwithstanding the disputes with the respective employers. She submits that what Miss Adekeye is really complaining about is her dismissal and that her Originating Application makes no complaint about the internal appeal. The Industrial Tribunal found that the act complained of was the dismissal and Miss Simler submits that this is a finding of fact which cannot properly be challenged on appeal. She submits that, if Miss Adekeye had another ground of complaint, she did not make it. She did not say that the appeal hearing was discriminatory. Miss Simler submits that the mere fact that the appeal was dismissed does not by itself raise a question of discrimination. She relies on Lupetti's case as pointing to the mischief at which section 68(1) is aimed being that of a person finding himself out of a job because of racial or other discriminatory grounds. She submits that the discrimination, if such it is, only takes place once, i.e upon dismissal, unless there is something new. In this case, the Appeal was simply confirmatory.

We are concerned at the uncertainty which employers and Industrial Tribunals may face if the clear cut time limit deriving from section 67(2) of the 1978 Act in cases of unfair dismissal is obscured by different time limits for other possible claims for unlawful discrimination under the 1975 or 1976 Acts said to have occurred or continued after the date of a dismissal. However, the time provisions in the 1975 and 1976 Acts (and indeed in section 24(2) of the 1978 Act) are not the same as that in section 67(2) of the 1978 and, as in the British Airways Board case, we do not consider that the cases under that section provide an exact analogy. If a dismissed black employee complains that he or she did not succeed upon an internal appeal in circumstances where a white comparator would have succeeded such that there is an allegation of unlawful discrimination on racial grounds in the result of the appeal, we consider that that is an "act complained of" within the terms of section 68(1) of the 1976 Act. That in substance is Miss Adekeye's case on this appeal.

Miss Adekeye appeared before the Industrial Tribunal in person with an adviser from the Citizen's Advice Bureau. It is not clear from the Tribunal's Reasons the extent to which her case that she was discriminated against in the outcome of her appeal was argued. What is clear, however, is that the Tribunal in reaching its conclusion asked itself the wrong question (or at least an incomplete question) in holding in effect that the time issue was determined by deciding the effective date of termination of Miss Adekeye's employment. That, as we have said, is the statutory test under section 67(2) of the 1978 Act, but not under section 68(1) of the 1976 Act. In our view, her case, by its very nature, applied just as much to the determination of her appeal as it did to her original dismissal. We are not persuaded that there was continuing discrimination between her dismissal and her appeal. But we do consider that her case that she was unlawfully discriminated against in the outcome of her appeal is an "act complained of" within section 68(1) of the 1976 Act and that such a claim is not precluded by that section on time grounds. We accordingly allow this appeal and remit the case to the Industrial Tribunal for the substance of that complaint to be determined.