Appeal No. EAT/539/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 11th November 1993
	Judgment delivered on 8th March 1994

	Before

	HIS HONOUR JUDGE J BULL QC

	MR P DAWSON OBE

	MR J H GALBRAITH CB

MR N MARKOS	APPELLANT

SIMIA FARRA & CO	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR F A SIDDIQI
(of Counsel)
Mr M Javaid
Principal Legal Officer
Commission for Racial Equality
Elliott House
10/12 Allington Street
LONDON SW1E 5EH

For the Respondents	MR F A LARGE
(Legal Adviser)

HIS HONOUR JUDGE BULL QC       This is an appeal by Nicholas Markos against the Decision of the Industrial Tribunal sitting at London (North) on 16th July 1991 by which, upon a preliminary issue it declined jurisdiction to hear the claim by Mr Markos that he had been discriminated against contrary to the Race Relations Act 1976.  Full Reasons for that decision were sent to the parties on 8th August 1991.

	By his Originating Application, Mr Markos complains that the decision to select him for redundancy was racially motivated.  The preliminary issue before the Industrial Tribunal was whether his Originating Application was received within the time limit specified by S.68(1) of the Race Relations Act 1976 which provides:
	"An Industrial Tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done."

	....

	(6)  A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

	We accept the submission of Mr Siddiqi on behalf of Mr Markos that where dismissal is the act of discrimination, then the time-limit runs from the date upon which the employee found himself out of a job and not upon the date when he was given notice, see per Balcombe J. in Lupetti v. Wrens Old House Ltd [1984] ICR 348 at 351C.  It is properly conceded that S.68(7)(b) has no application to the facts of the present case.

	There appears to be a little dispute upon the chronology of the events.  On 18th January 1991 Mr Markos was orally informed that he was to be made redundant.  That oral notice was confirmed by a letter dated 22nd January 1991.  The date of termination was calculated in the letter of 12th February 1991 to be 16th February, but it is plain from the letter of 3rd May 1991, and not disputed by Mr Markos, that he did present himself for work during the period of his notice until Monday 11th February when, as many recall, the country was blanketed in snow and Mr Markos asked to be released from the remaining period of his notice.  It has been argued on behalf of the employers that we ought to take the date of Monday 11th February as the date upon which Mr Markos was "out of a job", but we consider that the correct date applying the decision in Lupetti is midnight on the 15th February 1991.  Applying therefore the statutory limit of three calendar months, the Originating Application to the Industrial Tribunal should have been received by midnight on 15th May 1991.  By paragraph 3 of the decision of the Industrial Tribunal it is clear that the Originating Application was received by the Tribunal on 18th May 1991.  It follows therefore, that although by a different route, we are obliged to uphold the finding of the Industrial Tribunal that the Originating Application in this case was not presented to the Tribunal within the time-limit prescribed by S.68(1) of the Race Relations Act 1976.

	We are next asked to consider the provisions of S.68(6), the "just and equitable" proviso.  In Hutchison v. Westwood Television Ltd [1977] ICR 279, this Tribunal emphasised that this statutory provision gave the Industrial Tribunal a very wide discretion and the onus of displacing the exercise of such discretion is a heavy one depending upon a demonstration that the Tribunal had either erred in law or had reached a perverse decision.  Despite differing from the Industrial Tribunal upon the way in which they arrived at their conclusion, we do not find that it has been shown that the Industrial Tribunal either erred in law or reached a decision which no reasonable Tribunal could have reached upon the facts in coming to their conclusion that it was not just and equitable in the circumstances of this case for this claim to be allowed to proceed by an application of the proviso contained in S.68(6).

	For these reasons, despite the able and helpful arguments of Mr Siddiqi, we are unanimous in our view that this appeal must be dismissed and we do dismiss it.