BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Printable RTF version]
[Help]
Appeal No. UKEAT/0628/11/DM
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
19 March 2013
Before
HIS
HONOUR JUDGE PETER CLARK
MR C EDWARDS
MR B WARMAN
SOUTH
WALES POLICE AUTHORITY APPELLANT
MR
S JOHNSON RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEARANCES
|
For the Appellant
|
MR
JONATHAN WALTERS
(of Counsel)
Instructed by:
South Wales Police
Joint Legal Services
Police Headquarters
Cowbridge Road
Bridgend
Glamorgan
CF31 3SU
|
|
For the Respondent
|
MR S JOHNSON
(The Appellant in
Person)
|
SUMMARY
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Appeal allowed and case remitted to same Employment Tribunal to
reconsider their finding on extending time for bringing the two complaints of
direct race discrimination upheld by the Employment Tribunal.
HIS HONOUR JUDGE PETER CLARK
1.
The Claimant before the Cardiff Employment Tribunal,
Mr Samuel Johnson, was employed by the Respondent Police Authority as
Head of Diversity between 14 January 2003 and his dismissal on the
grounds of alleged gross misconduct on 14 October 2005. He is black.
2.
He presented two forms ET1 to the Employment Tribunal. The first was
dated 20 May 2005; the second 14 May 2007. He did not
complain of unfair dismissal, but of racial discrimination and/or
victimisation. The claims were combined.
3.
At the pre‑hearing stage a working schedule of 62 separate complaints
was prepared and used at a full hearing, which commenced before an Employment
Tribunal chaired by Employment Judge Beard on 7 March 2011. The case
ran for over 20 days. Eleven witnesses, including the Claimant, were
called on his behalf. He represented himself. 33 witnesses were called by
Mr Walters, appearing on behalf of the Respondent. A further witness, Ms Irobi
attended under a witness order at the request of the Claimant. The bundle of
documents exceeded 2,000 pages. Following four days’ deliberations in
Chambers, leading to further submissions from the parties, the Tribunal
delivered themselves of their Judgment with Reasons extending to 67 pages
on 26 September 2011.
4.
All claims raised in the second claim form were dismissed. Three claims
of direct racial discrimination, numbered 35, 38 and 43 in the working schedule,
to be found in the first claim form, were upheld. The remaining claims were
also dismissed.
5.
In addition to appealing those three adverse findings, the Respondent
also made application to the Employment Tribunal for a review in respect of items
35 and 43 only. A review hearing before the same Tribunal was held on
21 December 2011. By a review Judgment with Reasons promulgated on
23 December 2011, the application was partially successful. The
finding in relation to item 43 was revoked, as was the finding of unlawful discrimination
against Superintendent Kinrade, but not Ms Sweeney in relation to item 35.
6.
Permission to amend the original Notice of Appeal by reference to the outcome
of the review hearing was granted by HHJ McMullen QC at a directions
hearing held on 10 September 2012. It is that amended Notice of
Appeal that comes before us for full hearing today.
7.
In light of our conclusion in this appeal we shall not rehearse the
factual background that appears extensively from the Tribunal’s Reasons, but focus
instead on what we regard as the real point in the appeal. We are not persuaded
by Mr Walters that his attack on the remaining findings at items 35 and 38
on the basis of perversity surmounts the high hurdle presented by the approach
of Mummery LJ in Yeboah v Crofton [2002] IRLR 634. The real issue here, in our view, is limitation.
8.
First the context. In the particulars attached to his first ET1 (core
bundle p.182) at paragraph 14 the Claimant summarised his complaints of
direct race discrimination. The following are material:
“14e. Lack of consultation in respect of key decisions made
which impacted on the Claimant. For example, arranging meetings with his staff
(Suzanne Sweeney) regarding a racial incident on 17 August 2004
without informing the Claimant.”
That became item 35 and refers to a meeting at Port Talbot on 17 August 2004:
“14g. Frequently undermining him by failing to notify him and
invite him to meetings in areas of work which he had responsibility for.”
That, for our purposes, became item 38 and refers to a
meeting in Gwent in September 2004, although that venue was not identified
until the Claimant delivered further and better particulars of his claim in
February 2010.
9.
As to limitation. In relation to the finding post review of unlawful
discrimination by Ms Sweeney (item 35) and both Superintendent Kinrade
and Ms Sweeney (item 38) since the last discriminatory event took
place in September 2004 (the Gwent meeting) the first ET1, the date being
20 May 2005, was lodged outside the primary three‑month
limitation period. Thus, the question for the Tribunal was whether or not time
should be extended under the just and equitable discretion afforded to it.
10.
This issue is dealt with at paragraph 154 of the Reasons. Having
correctly directed themselves as to the balance of prejudice between the
parties, see, in respect of the Respondent, paragraph 154(9) and the
difficulty for witnesses in recollection during the trial, at
paragraph 154.14 the Tribunal say this:
“154.14 When the claim was presented it was at a stage where the
Respondent had been carrying out significant investigations into a complaint by
Miss Sweeney involving the Claimant, and where an investigation into the
Claimant for disciplinary matters was concluding. The Respondent had conducted
interviews with many individuals who connected with the Claimant’s complaints,
even if it was not directly interviewing them with the specifics. The
Respondent was therefore in a position to have some insight into the complaints
made by the Claimant, even when presented in May 2005.”
11.
Whilst recognising the difficult task faced by an Employment Tribunal
and particularly the Employment Judge, who must write their Judgment Reasons,
we are driven to accept Mr Walters’ submission that there is no finding of
primary fact by the Tribunal that supports the conclusion that their
investigations into Ms Sweeney’s complaint against the Claimant; the
disciplinary allegations against him and his complaints put the Respondent in a
position of having some insight into the two specific complaints of
discrimination, which, in the event, they upheld; items 35 and 38. In the
absence of any clear finding, expressly or by implication, particularly where
the Gwent meeting (item 38) was not identified until delivery of the
further particulars in February 2010, we accept the Respondent’s
contention that this finding, supporting the extension of time granted by the
Tribunal, cannot stand.
12.
The question then is what is to be done with this case. Mr Walters
urges us to allow the appeal and substitute a finding that the two extant
complaints, items 35 and 38, are time‑barred and fail on limitation
grounds; time ought not to be extended. We prefer the submission of
Mr Johnson, that the balancing exercise must be re-visited by the first
instance Tribunal. This Employment Tribunal has demonstrated its fairness and
impartiality when considering the Respondent’s review application. It is
conversant with the vast amount of evidence heard and read. We, therefore,
direct the Tribunal to reconsider the findings at paragraph 154.14 and to
consider whether there is any evidential basis for their conclusion that the
Respondent had some, and if so, what insight and from which specific source,
into the two relevant claims of discrimination, having considered the
submissions of both parties.
13.
As to proportionality, to which Mr Walters rightly referred, we
note that, at present, a remedy hearing will be necessary before the Tribunal.
We, therefore, anticipate that the case would be listed for a further day’s
hearing before the Beard Tribunal at which the question of limitation will be
reconsidered and, if necessary, the question of remedy may then be determined.
14.
The appeal is allowed and the matter remitted to the same Tribunal for
re-consideration of the limitation issue.
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/uk/cases/UKEAT/2013/0628_11_1903.html
