Appeal No. UKEAT/0850/02/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 September 2003
Judgment delivered on 9 December 2003

Before
HER HONOUR JUDGE A WAKEFIELD
MR B BEYNON
MRS R A VICKERS

MR S S MURALI	APPELLANT

BRITISH MEDICAL ASSOCIATION	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS LOUISE CHUDLEIGH
(of Counsel)
Instructed By:
Messrs Birchfields
Solicitors
142b Cheetham Hill Road
Manchester
M8 8PZ
	
For the Respondent	MR TERENCE RIGBY
(of Counsel)
Instructed By:
British Medical Association 
Legal Services
BMA House
Tavistock Square
London 
WC1H 9JP	

HER HONOUR JUDGE A WAKEFIELD:

1	This is an appeal by Mr S.S. Murali against a decision on a preliminary issue of an Employment Tribunal sitting at Manchester in July and August 2001.  The decision, sent to the parties with Extended Reasons on 31 May 2002, was that the complaint of race discrimination was presented out of time and that it was not, in all the circumstances, just and equitable for the Tribunal to consider it.  

2	The main issue in the appeal is whether the act complained of by Mr Murali was done before the end of the three month period allowed for presentation to an Employment Tribunal of a complaint, including whether it was what may be referred to as a “continuing act” which is treated as done at the end of the period over which such act extends.  There are also a number of subsidiary issues to be considered if they remain relevant, including whether the Employment Tribunal erred in law in refusing to consider the complaint out of time and also whether, by failing to provide to the parties a decision until more than ten months after the conclusion of the hearing, the Employment Tribunal denied the parties a fair trial contrary to Article 6 of the European Convention of Human Rights and the Human Rights Act 1998.

3	The factual background to the original complaint, which for the purposes of disposal of the preliminary issue has not been contentious either before us or in the Employment Tribunal, is briefly as follows.  Mr Murali, who is Asian, is a medical practitioner and a member of the British Medical Association.  In 1996 he was a Registrar Trainee in Urology when there was introduced a restructuring of Post Graduate medical training and a new grade of Specialist Registrar.  Mr Murali applied to join the new training programme as a Type I Trainee but on 18 June 1996 the South Thames Post Graduate Dean informed him that he was on a Type II Training programme which would terminate at the end of September 1997.  This position was confirmed to Mr Murali following a review.  

4	In August 1997, Mr Murali first sought assistance from the British Medical Association in his attempts to be a Type I Trainee.  In December that year he had a meeting with his Industrial Relations Officer and Mr Quigley, a solicitor in the British Medical Association’s Legal Department.  Mr Quigley informed Mr Murali that the British Medical Association had taken a general decision of not getting involved in problems that had occurred in the time of transition to the Specialist Registrar Training Programme.  There was then some correspondence between the parties which concluded in May 1998 with a letter from Mr Murali to which there was no response.  

5	Mr Murali had presented a complaint to an Employment Tribunal in April 1998 alleging race discrimination against the NHS Executive and two members of the South Thames Deanery but those proceedings were subsequently dismissed as being out of time.  

6	By a letter dated 4 January 1999 Mr Murali wrote again to Mr Quigley asking for the British Medical Association’s assistance in his efforts to join the Specialist Registrar Training Programme as a Type I Trainee.  There was no reply to this letter.  

7	On 12 March 2001 Mr Murali attended an Employment Tribunal hearing as a witness for Mr R Chaudhary at the hearing of the latter’s complaint of race discrimination made against the British Medical Association (Chaudhary v British Medical Association: case No. 2401502/00).  During that hearing, Mr Murali formed the belief that at times relevant to his own situation, the British Medical Association had operated a policy of not assisting its members in cases of complaints of race discrimination made against bodies such as Post Graduate Medical Deans.  He also formed the view that such a policy was discriminatory and that he had, by the operation of it, been discriminated against on grounds of his race.  On 12 April 2001 he presented the Originating Application containing the complaint in the present proceedings.  

8	By its Notice of Appearance, the British Medical Association denied any unlawful discrimination and also raised the question whether the complaint had been presented in time.  

9	The Employment Tribunal in Manchester held a hearing on the preliminary issue in relation to Mr Murali’s complaint together with two other complaints made against the British Medical Association by two other medical practitioners alleging similar facts.  The preliminary issue in each case was whether the complaint had been presented within the time allowed by section 68(1) of the Race Relations Act 1976 and, if not, whether it was just and equitable to consider the complaint.

10	The relevant statutory provisions as to time limits are the following:

Race Relations Act 1976, Section 68(1):

“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;
(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.”
(7)	For the purposes of this section – 
(b) any act extending over a period shall be treated as done at the end of that period;”

11	The provisions of the 1976 Act under which the substantive complaint is brought are:

Section 1(1):

“(1)	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; or
(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but –
(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and 
(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and
(iii) which is to the detriment of that other because he cannot comply with it.
Section 11(1):
“(1)	This section applies to an organisation of workers, an organisation of employers, or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists.
(3)	It is unlawful for an organisation to which this section applies, in the case of a person who is a member of the organisation, to discriminate against him – 
(a) in the way it affords him access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; ”

It is also relevant to consider section 4 of the Act, which covers discrimination against employees, and section 12 covering discrimination by “qualifying bodies”, it having been argued on behalf of Mr Murali that the section 11 provisions are more akin to section 4 than section 12, being concerned with a continuing relationship between the relevant parties rather than “one-off” encounters.  

12	The decision of the Employment Tribunal, so far as Mr Murali is concerned, is contained in paragraphs 18, 19 and 21 of the Extended Reasons with the conclusion at paragraph 23, those paragraphs being as follows:

“18	The outcome of this hearing depends upon a proper analysis of when the cause (or causes) of action arose.  If the applicants’ contention that it arose or crystallised on 12 March 2001 is accepted, all 3 applications were presented in time; but, if not, the applications have been presented so far out of time that it would be difficult to conclude that it is just and equitable to allow them to proceed.
19	Having considered the arguments advanced by, and on behalf of all the parties, the Tribunal unanimously concluded that the cause of action in respect of each of these applications arose at the time when the respondent failed to support each individual applicant in proposed legal proceedings, and not when the applicants discovered the existence of a policy in respect of potential claims against the Specialist Training Authority or the Royal Colleges.
21	In the case of Mr Murali, the last act complained of was the refusal of the respondent to act on his behalf on 12 December 1997.  His cause of action clearly arose at that time and not on 12 March 2001. 
23	In these circumstances, the Tribunal was in no doubt that each of these applications was presented substantially outside the time allowed by statute; and that there was no continuing act which could have the effect of keeping the claims alive until March 2001.”

13	As to considering the complaint out of time, the Employment Tribunal said at paragraph 24 of the Extended Reasons:

“24	In considering whether it is just and equitable to allow these applications (or any of them) to proceed out of time, the Tribunal took into account that (a) there was no reason why any of the applicants could not have commenced proceedings against the respondent when the respective causes of action arose, (b) the applications were presented several years out of time in each case (and were, in the view of the Tribunal a clear attempt to revive allegations which had either not succeeded or had not been pursued at the relevant time), and (c) there is absolutely no doubt that if the allegations now raised by the applicants are fully and properly investigated, the cogency and the reliability of the evidence will be seriously affected by the delay and the respondent will be severely prejudiced by being required to explain its actions so long after the events complained of.”

14	The appeal against this decision in on the following grounds:

(1)	That the Employment Tribunal erred in law in finding that the last act of discrimination relied on occurred in December 1997.  It is argued that they should have found “an act extending over a period” within the meaning of section 68(7)(b) of the 1976 Act, being a discriminatory policy and that Mr Murali’s cause of action only crystallised or was complete when he first became aware of that policy.

(2)	That in the exercise of its discretion under section 68(6) the Employment Tribunal failed to take into account relevant factors, namely:

(a) that Mr Murali only learnt of the discriminatory policy on 12 March 2001 and acted expeditiously thereafter;

(b) that the merits of the claim are strong;

(c) the prejudice to Mr Murali in not considering the complaint.

As to (b) it is also argued that the Employment Tribunal should have taken into consideration the decision in the case of Chaudhary v British Medical Association (supra) which found some of Mr Chaudhary’s complaints of discrimination proved.

(3)	That in failing to provide the decision to the parties for ten and a half months following the final day of the hearing, the Employment Tribunal breached Article 6.  It is argued that after such a long delay, Mr Murali cannot be confident that the Employment Tribunal properly considered all matters put before them at the hearing.  

15	On behalf of the British Medical Association, reliance is placed as regards ground 1 set out above, on the reasoning of the Employment Tribunal in their paragraphs 18, 19, 21 and 23 and the irrelevance to accrual of such a cause of action of discovery of pre-existing facts.  As to the exercise of the section 68(6) discretion, counsel on behalf of the British Medical Association rightly points to the high threshold to be reached before an appeal body should interfere.  On delay it is argued that there is nothing in the decision itself to suggest that it resulted in any error of law.  

The delay in sending the decision to the parties

16	Since this is an aspect of the appeal which does not arise from the content of the Employment Tribunal decision, it is appropriate to deal with it first.  The hearing of the case was over two days, 16 July 2001 and 1 August 2001.  There was no oral evidence.  The three Applicants made submissions as did Counsel on behalf of the Respondent and in each case some of the submissions had been put in writing.  We are not aware of any reason justifying the whole or any part of the delay until the written Decision with Extended Reasons was sent to the parties on 31 May 2002.  In the absence of any such reason, such a delay is deplorable.  As has been said in other cases, tardiness in completing the judicial task after a hearing is over denies justice to the winning party and can undermine the loser’s confidence in the correctness of the decision when it is eventually delivered.  The Article 6 right to a fair trial, includes the right to be informed of the outcome within a reasonable time.  In a case where oral evidence has been given and the outcome of the dispute may depend upon the Tribunal’s impression of the witnesses, an unjustifiable delay may, taken together with other causes of concern, be a reason for considering a decision unsafe:  see Barker & Others v The Home Office (EAT 25 September 2002).  However, in none of the decisions to which we have been referred, including Bishopsgate Investment v Maxwell [1993] BCC 120 and Rolled Steel v British Steel Corporation [1986] Ch 246, in both of which excessive delay was severely criticised, has delay of itself impugned the decision.  Given the nature of the hearing in the present case and in particular the absence of oral evidence as to fact, taken together with the decision itself which fully addresses all points in contention, we have not been persuaded that the decision should be set aside and a re-hearing ordered by reason of the delay.  It is however a situation which we hope not to see repeated and one for which Mr Murali deserves an apology.  

The accrual of the cause of action

17	The relationship of a member of a trade union with that organisation is a continuing relationship and in this respect more akin to that of an employer/employee relationship than to that between a qualifying body and a person applying to such a body for authorisation or a qualification.  We therefore agree that cases under section 11 of the Act are to be considered as more similar to those under section 4 than those under section 12.  This does not however necessarily mean that if a trade union has in place some rule or policy which affects the way in which a member is treated, there is an “act extending over a period” within the meaning of section 68(7)(b).

18	In paragraph 10 of the Extended Reasons the Employment Tribunal said:

“10  … the last act of the respondent of which Mr Murali complains occurred either on 12 December 1997, or, at the very latest in January 1999 … .”

They then continued in paragraph 11:

“11	It follows that any application from any of the applicants based on the above facts would be substantially out of time, but the applicants now contend that the relevant time limit runs from 12 March 2002 (sic), because it was only on that date that they became aware that the respondent had a policy of not assisting members in claims of race discrimination against the Specialist Training Agencies or the Royal Colleges.  If this argument is accepted, the applications would have been received well within the time allowed by statute.”

19	One of the matters argued before us was that the cause of action did not “crystallise”, by which we assume is meant accrue, until Mr Murali became aware of the alleged discriminatory policy in March 2001.  We reject that argument.  An act occurs when it is done, not when the complainant acquires knowledge of the means of proving that the act was discriminatory.  The case of Clarke v Hampshire Electroplating Co Ltd [1991] IRLR 490 is not in our view authority to the contrary.  In that case Mr Clarke, a black man employed for 17 years by the Respondent as a metal polisher, applied on 25 April 1989 for a vacancy as supervisor at the Respondent’s metal polishing shop.  He was told that he was not the person being sought for the job.  On 4 September 1989 a white man was appointed as supervisor.  The Employment Tribunal held that a complaint presented subsequently to that appointment was out of time, the only relevant act having been on 24 April 1989.  The Employment Appeal Tribunal allowed the appeal and remitted the case to the Employment Tribunal.  At paragraph 11 of the judgment the Employment Appeal Tribunal said:

“So the first issue was, what was the date of the act complained of?  But of course that phrase in our judgment indicates that there was at that time an act of discrimination and that the cause of action could properly be said to be complete at that time, because otherwise there would be no point in bringing proceedings.  So the first question in this case is, did Mr Clarke have a cause of action on 25 April 1989?  It was not, did he feel that he had suffered discrimination on 25 April 1989?  If the cause of action had not crystallised, then of course on the facts of this case, as indeed it seems to have been conceded in front of the Industrial Tribunal, the date of 4 September, with the appointment of the white man, would have crystallised the cause of action by providing the comparison.  If however there was in this case a cause of action which had crystallised on 25 April then it seems to us that in exercising the issue of discretion under s. 68(6), the approach of the Industrial Tribunal should be to consider whether in exercising its discretion it was reasonable for the applicant not to realise that he had the cause of action or, although realising it, to think that it was unlikely that he would succeed in establishing a sufficient prima facie case without evidence of comparison.”

Clearly, the Employment Appeal Tribunal in that case considered that it was a possible view that the cause of action had not accrued until there was a possible comparator.  This is not the situation in the present case.  

20	The more difficult issue in our view is whether the present circumstances fall within sections 68(7)(b).  In considering whether the Employment Tribunal was entitled to find as it did that the last relevant act of the British Medical Association was on 12 December 1997, we bear in mind two matters.  Firstly that at the interlocutory stage the burden on Mr Murali was to do no more than to make out a prima facie case that there was an “act extending over a period” (see Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96) and secondly that it is a matter for the Employment Tribunal in the exercise of its discretion to determine whether there is such a continuing act or whether what occurred was a one-off or occasional act.  There is a crucial difference between a continuing application to a complainant of a discriminatory rule or policy and the continuing existence of such rule or policy with a single or occasional application to a complainant.  Examples of the former in an employment context are:  Barclays Bank plc v Kapur [1991] IRLR 136, Owusu v London Fire and Civil Defence Authority [1995] IRLR 574 and Hendricks v Commissioner of Police for the Metropolis (supra).  In this last case in the Court of Appeal Mummery LJ said, at paragraph 52 of the judgment:

“I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the Appeal Tribunal allowed itself to be sidetracked by focusing on whether a ‘policy’ could be discerned.  Instead, the focus should be on the substance of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which the female ethnic minority officers in the Service were treated less favourably.  The question is whether that is ‘an act extending over a period’ as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.”

21	In Cast v Croydon College [1998] ICR 500, the Applicant’s employer on 26 March 1992 refused her request to job share or work part-time on her return from her prospective maternity leave.  After her return from maternity leave she made further such requests and was again refused on 16 March 1993 and 10 May 1993.  On 13 August 1993 she presented a complaint to an Employment Tribunal under section 1 of the Sex Discrimination Act 1975.  On the preliminary issue as to presentation in time (the terms of the relevant provisions in the 1975 Act being similar to those of the Race Relations Act) the Employment Tribunal held that the discriminatory act took place on 26 March 1992 and therefore that the complaint was presented out of time.  The Employment Appeal Tribunal dismissed her appeal.  On appeal to the Court of Appeal it was found that the Appellant’s complaint was of “an act extending over a period” within the meaning of section 76(6)(b) of the 1975 Act.  Lord Justice Auld said, in the course of his judgment in the Court of Appeal, the following at pages 507 to 509:

“The authorities distinguish between a complaint of a ‘one-off’ discriminatory decision whether or not it has a long-term effect, which is governed by the general provision in section 76(1), and one of the application of a discriminatory policy or regime pursuant to which decisions may be taken from time to time, ‘an act extending over a period’ for which section 76(6)(b) provides.
...
As to a ‘one-off’ discriminatory act, it is important to keep in mind that it may be an application of an established discriminatory policy or it may be inherently discriminatory regardless of any such policy.  If the complaint is of a specific discriminatory act the fact that it may have been an application of an established policy adds nothing for this purpose.  The starting point is, therefore, to determine what is the specific act of which complaint is made.
...
As to an act extending over a period, the authorities make clear - at least in the case of discrimination in the field of employment under section 6 of the Act of 1975 and section 4 of the Race Relations Act 1976 (see Brooke LJ in Rovenska v General Medical Council [1998] ICR 85, in particular at pp.92 D-H, 94G-95C and 95 F-H) that it is the existence of a policy or regime, not a specific act of an employer triggering its application to the complainant, that matters.  A moment’s consideration of the concluding words of section 76(6)(b) of the Act of 1975 – ‘any act extending over a period shall be treated as done at the end of that period’ - shows that that must be so.  If the ‘act extending over a period’ required a specific act by an employer to give it effect there would be no need or room to ‘treat’ … it as done at the end of the period. ... ”

22	In Rovenska v General Medical Council [1998] ICR 85 (a section 12 Race Relations Act case) a doctor from Czechoslovakia had been refused exemption by the General Medical Council from an English proficiency test, a prerequisite for eligibility for limited registration under section 22 of the Medical Act 1983.  The GMC rules regarding eligibility were referred to as LR2.  Having successively failed the test in 1984, 1985 and 1991, Dr Rovenska received three refusals of exemption from 1982 onwards and again on 2 December 1991.  The Greenwich Council for Racial Equality then wrote on her behalf to the GMC and on 10 January 1992 received from them the same negative reply.  On 31 March 1992 Dr Rovenska presented a complaint to an Employment Tribunal of race discrimination.  The Tribunal found that the last act of race discrimination relied on was the refusal letter of 2 December 1991.  The Employment Appeal Tribunal allowed the appeal saying:

“As long as the GMC acts on the contents of the note LR2, Dr Rovenska with her current qualifications is bound to be refused exemption.  Her complaint is not therefore of a once and for all refusal of an exemption.  It is about the maintenance and operation of a scheme for exemption which extends over a period, that period being the currency of a scheme or rules.”

The Court of Appeal dismissed the appeal but on grounds that the letter of 10 January 1992 was the last act relied on.  This case demonstrates the difficulty of distinguishing between a continuing application of a policy and one-off acts in accordance with a policy.  

23	The last case to which we were referred and which requires mentioning is Balamoody v Manchester Health Authority (2002) EWCA Civ 172.  This was an application to a single judge for permission to appeal the dismissal by the Employment Appeal Tribunal on a preliminary hearing of an appeal against a decision by an Employment Tribunal to strike out the complaint.  Permission to appeal was in fact refused but in the course of the judgment Sedley LJ considered a point raised by the Appellant as to a particular circumstance in which it was argued that time for presenting an Originating Application alleging race discrimination would start to run afresh.  The relevant background facts were that in 1997 Mr Balamoody claimed to have been racially discriminated against by his employer in that as a registered nurse of Indian origin he had been differently treated from a white nurse by being reported (presumably following a criminal conviction) to the registration body.  His comparator was the matron of the registered home where he worked.  His claim failed on the merits in the Employment Tribunal and in the Employment Appeal Tribunal.  In January 2001 Mr Balamoody found out that a white registered nurse who had been convicted had not been reported by the health authority to the registration body.  He therefore presented a further Originating Application claiming race discrimination having himself been reported on the earlier occasion.  The Originating Application was struck out as being frivolous and on the ground that the new evidence did not give rise to a new complaint.  Mr Balamoody was in person before Sedley LJ at the permission hearing and the Respondent did not appear.  At paragraphs 11 and 12 of the judgment, Sedley LJ, having said that he was to turn to two substantive points of law, said:

“The first is whether the allegedly differential treatment of Miss Pryce, which is a recent event, is capable of founding a new complaint under section 1 of the Race Relations Act. ...
On reading these papers it seems to me very cogently arguable – and if it was the only issue in the case I would have unhesitatingly let Mr Balamoody proceed on it – that the kind of event that he points to here, if it is in fact demonstrated in the end to be racially motivated, is an act of discrimination which starts time running afresh.  The view that I had formed is confirmed by the judgment of the EAT in Clarke v Hampshire Electroplating Co Ltd [1991] IRLR 490 which I did not know about but which Mr Balamoody has shown to me today and which expresses the same view.”

With the greatest of respect to the judge, it does not appear to us that the decision in Clarke is authority for the proposition so expressed.  It is also clear that Sedley LJ did not specifically consider when the relevant cause of action accrued.  The case is not in our view any authority for the proposition either that in the present case the cause of action did not accrue (or ‘crystallise’ as is referred to in the Notice of Appeal) until Mr Murali discovered the existence of the alleged policy, nor that such discovery caused time to start to run anew.  

24	We are not persuaded in the light of the above that the Employment Tribunal can be said to have erred in law when in the exercise of their discretion they concluded that the last act of which Mr Murali complains occurred either on 12 December 1997 or, at latest, in January 1999.  It was clearly open to them to find, as in effect they did although not expressly, that Mr Murali had not made out a prima facie case that there was a continuing act by the British Medical Association as regards him up to March 2001.  

The exercise of a just and equitable discretion

25	One of the matters complained of under this head is that the Employment Tribunal did not, as is alleged they indicated they would, await and take into consideration the outcome of the case of Chaudhary v BMA already referred to.  The hearing in that case ended on 29 June 2001 and the decision with Extended Reasons was sent to the parties on 24 September 2001.  In part Mr Chaudhary succeeded in his complaints of race discrimination, although the decision is currently the subject of an appeal to the Employment Appeal Tribunal.  The reason it is said that the Employment Tribunal hearing Mr Murali’s case should have taken the Chaudhary decision into account is that, it is argued, it shows that there was substantial merit in Mr Murali’s complaint that the British Medical Association was operating a discriminatory policy.  

26	There is a dispute of fact as to whether the Employment Tribunal in the present case did agree to await the Chaudhary decision before reaching their own as regards Mr Murali.  The Chairman of the Employment Tribunal (Mr Beaumont) has been asked for his recollection and in a letter from the Employment Tribunal dated 9 September 2003 the following is stated:

“Mr Beaumont has no recollection of stating that he would await the decision in Chaudhary v BMA (No. 2401502/00) before giving a decision in this case, nor do his detailed notes of the hearing contain any reference to such an indication.  It would not have been appropriate to take that course in any event because the case of Chaudhary was by then under consideration by a different Tribunal on its merits, whereas this case was before the Tribunal only on the preliminary issue of whether the Originating Applications were presented in time, and, if not, whether it was just and equitable to allow them to proceed out of time.”

We are satisfied that the outcome of Chaudhary would not have affected the present decision.  The merits of Mr Murali’s substantive claim were clearly assumed in his favour for the purposes of the hearing of the preliminary issue.  The whole hearing proceeded on the assumption that the three Applicants would be able to show that the alleged discriminatory policy existed at times relevant to their complaints.  

27	On the wider issue of the proper exercise of the discretion, an appellant has a heavy burden to discharge:  for example, in T J Hutchison v Westward Television Ltd [1977] IRLR 69, the Employment Appeal Tribunal (judgment of Phillips J) said, at paragraph 11 of the judgment:

“Because it is such a wide discretion conferred upon an Industrial Tribunal, the task which an appellant has in such a case is a heavy one.  Really he must show, if he is to succeed upon appeal, that the Industrial Tribunal demonstrably took a wrong approach to the matter, or that it took into account facts which it ought not have done, or that it failed to take into account facts which it should have done, or, as a last resort which is always open upon an appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed Tribunal could have reached it.”

28	Although the Employment Tribunal in the present case did not specifically mention in paragraph 24 of the Extended Reasons that Mr Murali only learnt of the alleged policy in March 2001, they had clearly referred to this earlier in the reasons.  The matters to which an Employment Tribunal must have regard in determining whether to consider an application out of time include “the time at which it was first reasonable for an applicant to realise that he had a cause of action” (see Clarke v Hampshire Electroplating Co Ltd (supra)).  

29	In determining in their paragraph 24 that “there was no reason why any of the applicants could not have commenced proceedings against the respondent when the respective causes of action arose”, it is clear that the Employment Tribunal considered that Mr Murali had all the necessary information within the relevant time period.  In our view this was a conclusion they could properly reach.  As to the argument that the Employment Tribunal failed to consider the prejudice to Mr Murali in not considering his complaint, it is axiomatic that if a complaint is not considered an applicant will suffer prejudice.  There is no necessity for an Employment Tribunal to spell that out.  

30	We are not satisfied that the exercise of the discretion was improper or perverse.  

31	The appeal is dismissed.