Darko v Canute Distribution Ltd UKEAT/0030/16/RN

Appeal against a decision that the Claimant's claim of race discrimination was out of time. Appeal allowed.

Having found that the Claimant had suffered direct race discrimination/harassment, the ET ruled that the incident in question had occurred more than three months before the Claimant had lodged his ET claim and was thus out of time. The Claimant had not adduced evidence as to why it would be just and equitable to extend time, and the ET did not consider it would give such an extension in those circumstances. The Claimant appealed.

The EAT allowed the appeal. The ET had erred in concluding the Claimant's claim was out of time as a previous ET had earlier ruled it would be just and equitable to extend time to permit the determination of the complaint in that regard. Both parties applied to have their costs paid. The Respondent had indicated in advance that it would not contest the appeal and had made proposals for remission to the same ET which the Claimant had rejected, putting the Respondent to the cost of attending the appeal hearing. The Claimant resisted the proposal that the same ET hear the claim and claimed the repayment of his appeal fee and associated expenses. The EAT made no order for costs as they would be neutral in any case.


Appeal No. UKEAT/0030/16/RN



At the Tribunal

On 18 April 2016






Transcript of Proceedings



For the Appellant
MR DARKO (The Appellant in Person)

For the Respondent
MR GARY SELF (of Counsel)
Direct Public Access


JURISDICTIONAL POINTS - Extension of time: just and equitable

Having found that the Claimant had suffered direct race discrimination/harassment in having been called a "fucking black monkey" by another employee of the Respondent, the ET ruled that the incident in question had occurred more than three months before the Claimant had lodged his ET claim and was thus out of time. The Claimant had not adduced evidence as to why it would be just and equitable to extend time, and the ET did not consider it would give such an extension in those circumstances.

On the Claimant's appeal and upon the Respondent not resisting the appeal.

Held: allowing the appeal.

The issue as to the applicability of any time limits and whether it would be just and equitable to grant an extension of time had been considered and determined by a different Employment Judge at an earlier Preliminary Hearing. Although the ET at the Full Merits Hearing had made reference to this in its Judgment, it had apparently lost sight of this point and had itself turned to consider the issue again. The Claimant had not been required to adduce evidence to warrant a just and equitable extension of time as this issue had previously been determined in his favour. The appeal would be allowed and (applying Sinclair Roche & Temperley v Heard the matter remitted to the same ET to determine remedy.

**HER HONOUR JUDGE EADY QC****Introduction**
  1. I refer to the parties as the Claimant and Respondent, as below. The appeal is that of the Claimant against a Judgment of the Birmingham Employment Tribunal (Employment Judge Woffenden, sitting with members on 9-11 February 2015; "the Woffenden ET"), sent to the parties on 25 March 2015, by which the Claimant's claims were dismissed. The Claimant represented himself before the ET as he does before me today. The Respondent was represented below by its head of HR but today appears by Mr Self of counsel.
  1. Having considered this matter on the papers, HHJ Richardson initially took the view it disclosed no reasonable grounds to proceed. At a hearing pursuant to Rule 3(10) of the Employment Appeal Tribunal Rules 1993, before Langstaff J on 9 December 2015, the Appeal was permitted to proceed on one basis only, namely that the Woffenden ET erred in concluding the Claimant's claim was out of time in respect of a particular incident of race discrimination as a previous ET had earlier ruled it would be just and equitable to extend time to permit the determination of the complaint in that regard.
  1. Mr Self, now acting for the Respondent, agrees the ET did indeed err in the way Langstaff J identified. That being so, he does not seek to uphold the ET's decision, but agrees the appeal should be allowed and - given the ET's findings - the Claimant's claim upheld in respect of the incident in issue. He submits that the matter should now be remitted to the same ET to determine remedy. For his part, the Claimant takes issue with the remission of this matter back to the same ET; specifically, to the same Employment Judge.
**The Background Facts and the ET's Relevant Findings**
  1. The Claimant is black and of Ghanaian national origin, albeit of Dutch nationality. He worked for the Respondent as a Class 1 lorry driver. By his ET claim, presented on 16 December 2013, he complained of direct race discrimination and harassment, which included a claim that another driver in the Respondent's employment, "MB", had called him a "fucking black monkey". The Woffenden ET found this complaint was made out and, indeed, that there was more than incident when those words, or similar, had been used. That said, the incident about which the Claimant complained took place in June 2013. An ET claim presented in December 2013 was out of time and the Claimant had adduced no evidence to persuade the ET it would be just and equitable to extend time. The Woffenden ET dismissed the claim.
  1. On 11 August 2014, prior to the Full Merits Hearing before the Woffenden ET, there had been a Preliminary Hearing before Employment Judge Harding ("the Harding ET") at which it was specifically ruled that, while the Claimant's claim in this regard had been brought out of time, it was just and equitable for time to be extended in respect of the matters identified. That had been recorded by the Woffenden ET, but it seems to have then lost sight of this when concluding that the Claimant had failed to persuade it that it would be just and equitable to extend time. In reaching that conclusion, the Woffenden ET was apparently concerned that the Claimant had put forward no evidence in this regard. Given that time had already been extended, there was, of course, no reason for the Claimant to do so.
  1. Having concluded that the claim was out of time and there was no just and equitable basis for an extension, the Woffenden ET continued, in the alternative, to consider the question of remedy. As it recorded:

"36. If we have erred in our conclusion that we do not have jurisdiction in relation to those matters the claimant has in any event failed to establish the nature and extent of his injury to feelings such that an award of £12,000 for injury to feelings is merited. The incidents of harassment were undoubtedly unpleasant and it is apparent from the way that the claimant reacted in being aggressive towards and threatening MB that he was upset by them. However there was no repetition thereafter. The claimant was able to carry on working for the respondent and then for a sister company and then to return to work for the respondent only leaving when he had got another job. There is no evidence of ill health causing absence from work or to support his contention he sought medical advice. We were not persuaded that the claimant attended counselling as he claims because of the effect of race discrimination. Even if his claims had succeeded any award for injury to feelings on the evidence before us would not have exceeded the lowest end of the [Chief Constable of West Yorkshire Police v] Vento [(No 2) [2002] IRLR 177] bands."

**Appeal, Submissions and Conclusions**
  1. In appearing for the Respondent on this appeal Mr Self has conceded that, as was apparent to Langstaff J, the Woffenden ET erred in adjudicating the time issue when that had already been determined in the Claimant's favour. It is unclear how the error arose. On instructions Mr Self has clarified that this was not an issue identified at the Full Merits Hearing and neither party addressed it at any stage at that hearing; all had proceeded on the basis this point had already been determined. In any event, in these circumstances, I am satisfied that the appeal should be allowed and the ET's decision dismissing the Claimant's claim in this regard set aside and substituted by a ruling that the Claimant's claims of race discrimination and harassment were made out in respect of the specific remarks found by the ET.
  1. The only question remaining is as to remedy. I have already set out the Woffenden ET's alternative finding on that point: although it has not determined the precise sum of any award, the ET has indicated the range and level it has in mind. Whilst that was an alternative finding, the appeal was not permitted to proceed on any other grounds other than the specific point on which it has been successful. That being so, the ET's finding on remedy, as its other findings, must be respected.
  1. Notwithstanding that, the Claimant urges me to send this matter back to a different ET; specifically, to an ET presided over by a different Employment Judge. He contends EJ Woffenden did not permit him to put his case how he had wanted; he does not have confidence in her and considers that the ET over which she presided was on the Respondent's side. He makes particular complaint about case management decisions made during the course of the hearing, especially in respect of the trial bundle. He further considers the Employment Judge interrupted the presentation of his case and failed to refer to his arguments in the Judgment. For its part, the Respondent considers this matter should go back to the Woffenden ET.
  1. In deciding the appropriate course on remission in these circumstances, I note that any ET would be bound by the findings of the Woffenden ET so far as relevant to remedy. A different ET would, however, not have had the advantage of having heard the evidence and made the primary findings of fact. That points in favour of remission to the same ET. Is there any problem in so remitting this matter?
  1. The Claimant complains about the conduct of the ET - specifically, the Employment Judge - as I have summarised above, but there is no appeal before me on the ground of bias, fair hearing or improper conduct. More generally, complaints about case management decisions during a trial are always difficult to make good, and an appellate Tribunal cannot second guess decisions made by an Employment Judge during the trial, in particular as to the content of a bundle or as to how parties might be directed to answer questions or make submissions relevant to the issues that the ET had to determine. For the Respondent, Mr Self has stated (on instructions) that he understands there were difficulties of case management below but no proper basis for objecting to the decisions made by the Employment Judge. He further makes the point that there has been no appeal before me in that respect.
  1. Having carefully considered the objections made by the Claimant, I can see no proper basis on which I could form a view that the ET erred in its conduct of the hearing. As for the objection that it must have been biased or in some way hostile to the Claimant because it made findings against him, or did not properly listen to his case, or made the error in respect of the time limit point, I do not consider that I can reach that conclusion. First, because the ET obviously did listen to the Claimant's case; it found for him on certain aspects of that case. Second, cutting answers short or directing submissions as a part of appropriate case management is not an error of law and does not evidence bias. Third, making findings adverse to a party on the evidence at trial is similarly not evidence of bias. Fourth, an error through oversight in respect of the time limit issue is simply that, an error through oversight. It was capable of remedy by way of appeal and has been remedied; it does not evidence bias.
  1. I also consider it is relevant that this was a three-member ET and the Claimant makes no complaint about the other two members. An ET is one body and the Employment Judge simply the voice of the ET at the hearing and in drawing up the Judgment. The fact that the Claimant apparently has confidence in the two lay members of the Woffenden ET means he has confidence in the majority of that ET.
  1. So, having had regard to the factors laid down in Sinclair Roche & Temperley v Heard and Anor [2004] IRLR 763, I am satisfied this matter should be remitted to the Woffenden ET, insofar as that remains practicable. That ET's findings have not been found to have been fundamentally flawed; in all but one matter - which seems to have arisen through human oversight rather than anything else - those findings have been seen as not open to challenge. It is plainly proportionate to send this matter back to the same ET: the Full Merits Hearing took place a little over a year ago, but the facts are such that the ET is likely to be able to recollect this matter fairly speedily once it has re-read its notes and may well - I do not prescribe this; it will be a matter of case management for the ET - be able to make its final decision on remedy on the papers without the need to hear further evidence. I so rule.
  1. Mr Self, for the Respondent, has made an application for costs against the Claimant; specifically, under Rule 34A(1) of the EAT Rules, that the Claimant had been unreasonable in the conduct of the appeal. The Respondent had indicated in advance that it would not contest the appeal and had made sensible proposals for remission to the same ET. The Claimant's response - to reject such a course - was unreasonable and put the Respondent to the cost of having to attend today. That said, Mr Self accepts that, to the extent that the Claimant had to pay fees to lodge and pursue this appeal to Full Hearing, he would be entitled to seek those costs against the Respondent under Rule 34A(2A) of the EAT Rules. Due to partial fee remission the Respondent understands the Claimant had to pay £1,015. That being so, the Respondent limits its application to that sum; thus the costs would be neutral.
  1. For his part, the Claimant resists the Respondent's application and argues that, having accepted that the appeal should be allowed, it should pay all his costs, not just the fees that he has had to incur but also his travel and other expenses in having to attend today.
  1. The Claimant having succeeded on his appeal, he was entitled to seek to recover the fees he had incurred, reduced due to partial remission, of £1,015 (Rule 34A(2A)). The Respondent puts forward, however, good reason why it should not have to pay those fees, alternatively why it should itself be awarded costs, given it was put to unnecessary expense by the Claimant's unreasonable conduct.
  1. The appeal had only been permitted to proceed on a very limited basis and there was no point before this court in terms of bias, improper conduct or fair hearing. In those circumstances, it can properly be said to have been inevitable that this matter would be remitted to the same ET and this hearing could thus have been avoided. It was, accordingly, unreasonable for the Claimant to refuse to engage with the Respondent's proposals for the appeal. That being so, I consider that the appropriate course is for the parties to bear their own costs and it is academic whether that outcome is achieved by my allowing the Respondent's application for its costs in the sum of £1,015 but similarly allow the Claimant's application under Rule 34A(2A) in the same sum, or by my simply saying that the Claimant, in these circumstances, is not entitled to recover his fees.

Published: 02/06/2016 11:12

Sign up for free email alerts

Email address
First name
Last name
Receive daily
Receive weekly
I agree to this site's terms and conditions