The claimant brought several claims against the respondent, including two complaints of direct race discrimination. The last act of discrimination occurred in September 2004 but the claimant's first ET1 was not lodged until May 2005, thus outside the 3 month limitation period. The ET allowed the extension, saying that when the claim was presented it was at a stage where the respondent had been carrying out significant investigations into a complaint 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, and the respondent was therefore in a position to have some insight into the complaints made by the claimant, even when presented in 2005. The respondent appealed.

The EAT allowed the appeal. There was no finding of primary fact by the Tribunal that supported the conclusion that the investigations by the respondent concerning complaints 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.
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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)

JOHNSON (RESPONDENT)

Transcript of Proceedings

JUDGMENT

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)

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.

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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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."

1. 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.

1. 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.

1. 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.

1. The appeal is allowed and the matter remitted to the same Tribunal for re-consideration of the limitation issue.