Appeal No. EAT/365/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 July 1993
	Judgment delivered on 30th July 1993

	Before

	THE HONOURABLE MR JUSTICE KNOX

	MR A D SCOTT

	MRS P TURNER OBE

CATERING & ALLIED SERVICES (LONDON) LTD	APPELLANTS

C HOWELL	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR A KORN
	(Representative)
	Messrs Paisner & Co
	Solicitors
	Bouverie House
	154 Fleet Street
	London EC4A 2DQ

For the Respondent	MR M WESTGATE
	(of Counsel)
	Catherine Gardner
	Solicitor
	Camden Community Law
	              Centre
	2 Prince of Wales Road
	London NW5 3LG

	MR JUSTICE KNOX:    The appeal before us is brought by Catering and Allied Services (London) Ltd ("the Company") from an interlocutory order by a chairman of Industrial Tribunals on 5 April 1993 whereby she refused the Company's application for a preliminary hearing.  There were other directions in the Order but they were made by consent and are not the subject of the appeal to this Tribunal and therefore need no further mention save that the substantive hearing was fixed for 10 days, 15 to 16 November 1993.  The Order contained the following, so far as relevant, under the heading "REASONS" 

	"The application was refused. The dates of the allegations are clearly set out in Section 10 of each of the Originating Applications.

	Case 51982/92 was presented to the Tribunals on 12 October 1992. Therefore only those complaints which fall after 13 July 1992 can be considered as substantive, having regard to the provisions of Section 68(1) of the Race Relations Act 1976.

	Case 1192/93 was presented on 7 January 1993. Only incidents which occurred after 8 October 1992 can be found of(sic) complaints of racial discrimination.

	If the Applicant wishes incidents which occurred before 13 July 1992 or 8 October 1992 to be considered other than as evidence then it is for him to make an application to the Tribunal hearing the case or at another Interlocutory hearing for an extension of time. The Tribunal can then consider whether their direction [semble this should be "discretion"] under Section 68(6) of the Act should be exercised."
 	Although there are three Originating Applications between the parties only the first one, numbered 51982/92/LN/A, is relevant to this appeal.  It contains a long list of allegations of racial discrimination in connection with the employment of the applicant Mr C. Howell by the Company going back to July 1989, to the beginning of his employment, as opposed to the training which preceded it. Mr Howell was employed as the Company's name suggests in the catering trade.  The Company's application for a preliminary hearing was for it to be held in order to identify which of the numerous matters of complaint in the Originating Application which occurred before 14 July 1992 were, in the exercise of the Industrial Tribunal's discretion under 68(6) of the Race Relations Act 1976 ("the 1976 Act"), matters which it would be just and equitable to consider as substantive complaints notwithstanding that they were out of time under subsec (1) of that Section which reads:
	"An Industrial Tribunal shall not consider a complaint under Section 54 unless it is presented to the tribunal before the end of three months beginning when the act complained of was done."
	It will be convenient at this stage to mention that the passage in the Order under appeal which states that only those complaints in this Originating Application that fall after 13 July 1992 can be considered as substantive would not have the effect of excluding any 

complaint which was based on a continuing act within s.68(7) of the 1976 Act and was thereby to be treated as done at the end of a period ending after 13 July 1992.  That seems to us very clear and we only mention the point because some doubts about it were expressed in the course of the argument before us.  There remains a long catalogue of complaints based on acts which were done before 14 July 1992 and in respect of which it is at least arguable that no question of an act extending over a period ending on or after that date could arise.  In relation to those it was the Company's case before the Industrial Tribunal chairman, and before us, that the Company as respondent was entitled to know which the Tribunal would treat as substantive and which might merely be evidence of past discrimination.  It was common ground before us that although acts of discrimination outside the three months limitation period under s.68 (1) of the 1976 Act cannot, unless the Industrial Tribunal exercises its discretion under s.68(6), be relied upon to justify an award in themselves, they may be taken into account in determining whether there has been discriminatory conduct within the limitation period because they may be relevant in showing that the action taken within that period was taken on racial grounds. Eke v Commissioners of Customs and Excise [1981] I.R.L.R.334.  Another matter which is not in dispute is that there are acts of which complaint is made which were done after the 13th July 1992 and in respect of which the Originating Application is not out of time.  That is not to say that there is an admission that the acts in question constituted discrimination on racial grounds, only that there are complaints which are not on any view out of time.  Racial discrimination is denied and is therefore in issue throughout.  It follows that in this case all the acts alleged to amount to unlawful discrimination are potentially relevant even if the discretion under s.68(6) to extend time is not exercised, either as being within the limitation period whether because they were done, or under s.68(7)(b) are to be treated as done, within the three months before the presentation of the Originating Application or, if outside the period, as evidence of discrimination within the period.  No doubt the further back one goes in the three year period between the start of Mr Howell's employment in July 1989 and the start of the three months limitation period in July 1992 the less likely it is that an isolated act will be of significant evidential value in connection with acts done between 13 July 1992 and 13 October 1992, but the possibility exists that they will be of some value.

	The acts in question which, disregarding the operation of s.68(7)(b) of the 1976 Act, fall outside the three months period from July to October 1992 have been variously estimated at between 14 and 16 in number.  The exact number is of no great significance.  They are numerous and include such matters as failure to promote Mr Howell, denying him training and subjecting him to disciplinary hearings and warnings as a result thereof.

	Another matter upon which the parties were agreed was that the jurisdiction of this Tribunal in relation to interlocutory orders made by Industrial Tribunals was to be exercised on the same basis as the jurisdiction in relation to final orders. See Adams v West Sussex C.C. [1990] I.C.R.546  at 550 where Wood J. said:
	"In giving its decision in interlocutory proceedings an industrial tribunal is exercising its discretion, but that discretion must be exercised within the powers given to the industrial tribunal on that issue and within the relevant legal principles which have been evolved largely through decisions of appellate courts. It is the exercise of a judicial discretion. It seems to us desirable, and indeed we would have expected, that the same principle would apply to interlocutory appeals as for final appeals even though the former will in the main be the result of the exercise of a discretion. Thus, in examining an interlocutory order of an industrial tribunal or of a chairman sitting alone we would define three issues: (a) Is the order made one within the powers given to the tribunal? (b) Has the discretion been exercised within guiding legal principles? (e.g. as to confidential documents in discovery issues); (c) Can the exercise of the discretion be attacked on the principles in Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 K.B.223?"
	A difficulty which arises in the present appeal in giving effect to this decision is that the reasons of the Industrial Tribunal Chairman for her decision are not explicit.  Mr Westgate for Mr Howell was constrained to accept that the decision under appeal does not contain any statement of reasons why the preliminary hearing was refused as opposed to a statement of the general position regarding lapse of time if the discretion under S.68(6) was not exercised. It is clear that any such exercise of discretion was left for the future, whether at an interlocutory hearing if the applicant so applied, or at or perhaps immediately before the substantive trial fixed in November of this year.  It was made clear to us at the hearing that there is no intention on Mr Howell's behalf to make an interlocutory application for a preliminary hearing on the issue of extension of time and that it is intended on his behalf to apply at the substantive hearing to have all the alleged acts of discrimination of which complaint is made treated as substantive complaints by an exercise of the discretion to extend time under s.68(6) of the 1976 Act, where that is necessary.  It is evident from the terms of the "reasons" in the order under appeal that the first of those two tactical decisions on behalf of Mr Howell was not made clear to the Industrial Tribunal Chairman and it is at least doubtful whether the second was.

	Mr Westgate submitted that the Industrial Tribunal at the substantive hearing will have three options open to it when the application under s.68(6) of the 1976 Act is made, as we know it will.  First, the question whether and to what extent the discretion under s.68(6) should be exercised could be taken before and separately from the hearing of the substantive issues.  Secondly, it could be decided after the applicant, Mr Howell's, evidence on all issues has been taken and, thirdly, it could be dealt with at the same time as the substantive issues so that all the evidence on both sides would be heard together.

	Mr Westgate submitted that the decision under appeal was essentially a listing decision and therefore peculiarly within the discretion of the Industrial Tribunal Chairman.  Both sides submitted that time and therefore costs would be saved by the decision for which they respectively contended.  For Mr Howell it was pointed out that there is no possibility of the decision on the preliminary issue, if taken separately, disposing of the case altogether because of the issues regarding acts done within the limitation period which will have to be dealt with in any event.  For the Company it was submitted that there is a substantial difference between the issues to be tried on the preliminary hearing if there is one and the substantive issues.  The preliminary issues would be concerned with the question whether time should be extended so that questions why no application was made within the three months period and the validity of any such reason would be the subject of the preliminary hearing at which the probability was that the Company would not need to call evidence at all, since those questions are all matters for Mr Howell to deal with.  Secondly, it was submitted that it was a fundamental principle of natural justice that a respondent should know what are the substantive complaints before the Tribunal hearing on those complaints takes place.

	So far as our jurisdiction is concerned we consider that before we can properly interfere with the decision under appeal it has to be shown to our satisfaction that that decision was wrong in principle.  We are of course handicapped in ascertaining the reasoning upon which it was based by the absence of anything which can accurately be called a reason for the decision.  We appreciate that Chairmen of Industrial Tribunals are extremely busy, particularly of late with the present heavy case load and, to put it no higher, no superabundance of judicial manpower, but it is in our view highly desirable that particularly when an interlocutory application is opposed, a short (and it may be very short) statement of reasons for the decision should be given.

	Neither side challenged what was said by Phillips J. regarding the parallel provision to s.68(6) of the 1976 Act, that is to say s.76(5) of the Sex Discrimination Act 1975, in Hutchinson v. Westwood Television [1977] I.C.R. 279.  In relation to an argument that the reference in both sub-sections to "all the circumstances of the case" involved the Industrial Tribunal in hearing the substantive application before deciding whether to extend time he said at p 282:
	"The words "in all the circumstances of the case" refer, as we think, to the actual facts of the matter in so far as they are relevant to the matter under consideration in Section 76(5). "The case" does not refer, we think, to the entire complaint which, if time were extended, would have to be investigated. The words refer to the actual facts so far as relevant to the matter in hand."
Later on the same page he also said:
	"Because it is such a wide discretion conferred upon an industrial tribunal, the task which the 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 they took into account facts which they ought not to have done, or that they failed to take into account facts which they 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."
	As Dillon L.J. said in Munir v. Jang Publications Ltd [1989] I.C.R.1  at 6:
	"There are many occasions when it is a convenient course to have a preliminary issue decided in advance of the main hearing of a complaint where it is felt that the decision on the preliminary issue will shorten the main hearing. If that is so, it can save time for the industrial tribunal and help listing to have a preliminary issue decided. An obvious instance is where there is an issue entirely separate from the disputes on the merits of the complaint as, for instance, whether the complaint was lodged in due time or not."
	In that particular case armed with that advantage, which appellate courts often enjoy over tribunals of first instance, especially at an interlocutory stage, known as hindsight, he said it was plain that it would have been better if there had been no preliminary issue.  The issues there were quite different from those in the appeal before us.

	In our view the combination of the right of the Company as respondent to know before the case ends what the substantive issues in the proceedings are and the prospect of shortening the proceedings overall does make it in principle wrong in the context of a three year period outside the permitted three months in which there are of the order of 15 separate acts complained of, not to ensure that the substantive issues are identified before the case is tried.  We do not think that it is overstating the entitlement of the Company to say that it has a right to know what the substantive issues are.  There is an important difference both in principle and in practice between a substantive claim on the one hand and an issue which may have an evidential bearing on later events on the other.  There are two separate processes involved in trying the case. S.68(6) reflects that in its terms:
	"A.......tribunal may nevertheless consider any such complaint.....which is out of time if in all the circumstances of the case, it considers that it is just and equitable to do so."
	The two processes of considering are separate.  Whether it is just and equitable to extend time is one question that needs to be considered and the complaint itself is another that needs to be considered.  We therefore conclude that it was in principle wrong to leave open as a possibility all three of the options which Mr Westgate identified as open to the Industrial Tribunal as mentioned above.  Conversely, we regard the second and third options as highly unsatisfactory and objectionable in principle.

	On the other hand we do not think it right to compel the Industrial Tribunal to hold a separate interlocutory hearing if in its discretion it thinks it preferable to hear both the issues as to the exercise of the discretion under s.68(6) of the 1976 Act and the substantive case consecutively and with such adjournment if any, between the two stages as the Industrial Tribunal thinks fit.  We should mention that Mr Korn, for the Company, accepted that any such adjournment need not be a lengthy one, two or three days would, he thought, suffice. Accordingly we will allow the appeal and substitute a direction that the issues arising under any application made by the applicant for the Industrial Tribunal to exercise its discretion in his favour under s.68(6) of the 1976 Act be heard before the substantive hearing of the Originating Application with liberty to both parties to apply if so advised to the Industrial Tribunal for further directions.