Veitch Penny LLP - Exeter | Crediton, Devon

Case

Robertson v Bexley Community Centre (trading as Leisure Link)
Court of Appeal (11 March 2003)

Issues

(1) Racial discrimination
(2) Complaint out of time
(3) Exercise of discretion to revive complaint out of time

Facts

The employee, Francis Robertson, was employed as a plant technician in early 1999. He worked at three leisure centres. He was of black Caribbean origin. Another technician, Don Pankhurst, was nearing retirement and was asked to train Robertson to take over after his departure.

Robertson complained to his employer in April 1999 following incidents of racial abuse from Pankhurst. Following a disciplinary hearing in which Pankhurst provided a written apology, Pankhurst was given a formal written warning. He then took sick leave for three and a half months.

Shortly after, Robertson was suspended following the discovery of high levels of chemicals in one of the leisure centre pools. Whilst he was exonerated from any involvement in the incident, his probationary period was extended. This was because he could not complete his training whilst Pankhurst remained on sick leave.

Robertson made a complaint to the Tribunal in October 1999 in that he had been racially discriminated against. In his complaint, he referred to his suspension, the extension of his probationary period and the behaviour of Pankhurst. The next day, during a reconciliation meeting between the two employees, Pankhurst was racially abusive. Pankhurst resigned before any further disciplinary action could be taken.

The Employment Tribunal found that Robertson’s suspension and the extension of his probationary period did not amount to racial discrimination. Whilst the claim in respect of the earlier behaviour of Pankhurst did have merit, the Tribunal found that it was outside the three-month time limit for claims to be initiated.
The Employment Tribunal held that it was not just and equitable to revive his complaint against Pankhurst, under section 68(6) of the Race Relations Act 1976.

Robertson’s appeal against the decision was allowed. The Appeal Tribunal held that the original tribunal should have exercised its discretion to allow Robertson’s complaint out of time. The Appeal Tribunal found Pankhurst’s behaviour to be a continuing act of discrimination. The Tribunal’s original decision not to exercise its discretion had gone to the heart of the case and tainted its rejection of other claims of racial discrimination that had not involved Pankhurst. All the claims considered together might have amounted to a continuing act of unlawful discrimination on the part of the employer.

The employer appealed the decision.

Decision

The Court of Appeal allowed the appeal. It confirmed that the Appeal Tribunal had been incorrect in allowing the appeal against the original Tribunal’s finding that Robertson’s complaint was out of time. When determining whether the complaint was out of time, the Appeal Tribunal had been incorrect to find a continuing act of discrimination. In order to make such a finding, it had had to take into account the racially discriminatory remarks made the day after the complaint had been entered, which it was not entitled to do.

In order to establish a continuing act, it must be demonstrated that the employer had a practice, policy, rule or regime governing the said act said to constitute it. In this case, there was no basis upon which to find a continuing act, as the employer had not condoned the employee’s behaviour at any time.

Comments

The Employment Tribunal had a very wide discretion in determining whether it is just and equitable to extend time. It is fully entitled to consider any relevant circumstances. However, time limits are strictly exercised in the Employment Tribunal, and it is the exception to use its discretion, rather than the rule.

As a result, an appeal against a Tribunal’s refusal to consider an application that is out of time should only be successful where the Appeal Tribunal can identify that the Tribunal was incorrect due to an error of law or principle. In this case, the original Tribunal had given the matter careful consideration and had reached a reasoned decision. This meant that the Appeal Tribunal had no jurisdiction to overturn the original decision.