Appeal No.	 EAT/628/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 October 1997

Before
THE HONOURABLE MR JUSTICE MAURICE KAY
MR L D COWAN
MS B SWITZER

MR C RAMFUL	APPELLANT

(1) NW MENTAL HEALTH NHS TRUST (2) MR D BRETTLE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR PAUL EPSTEIN
(of Counsel)
ELAAS	

	MR JUSTICE MAURICE KAY:   This is the preliminary hearing of an appeal by Mr Ramful against a decision of an Industrial Tribunal at London (North) on 18th March 1997. Mr Ramful was alleging discrimination. His case was that on 16th June 1996 he had been interviewed for upgrading in his post in circumstances where he thought that the interview was not necessary, and the entirety of his complaint related to that interview process.

	He did not present his application to the Industrial Tribunal until 6th December 1995. The tribunal found that the discrimination was not in relation to a continuing state of affairs, but was confined to 16th June 1995. It follows from that there being a three month time limit, the time limit expired in September 1995, and the application in December was some two to three months late. There is under the statute a discretion vested in the tribunal to extend time “if, in all the circumstances of the case, it considers that it would be just and equitable to do so”. The Industrial Tribunal considered extension of time as a preliminary issue, but declined to extend time.

	It did not hear evidence from Mr Ramful, not least because it seems to be that he chose not to be present on that occasion. He was represented by his union representative. It seems that the case advanced by his union representative was that Mr Ramful, through the union, had been seeking to go through the grievance procedure until November 1995. That in itself, does not excuse the omission to present an application in time. 

	The last two paragraphs of the decision read as follows:

“5	On behalf of the Respondents however Mr Ward points out that it was not until November 1995 that any suggestion of race discrimination was made and secondly he points out that the Applicant is aware of the time limit because he was involved in a previous application to the tribunal on 11 January 1991 and that application was dismissed on the preliminary point that it was out of time.
6.	Balancing the needs of the parties and all other matters we come to the very clear conclusion that it would not be just and equitable to extend the time limit and so the conclusion is that this tribunal does not have jurisdiction to proceed with this claim.”

	The appeal to this appeal tribunal is on the basis of documents prepared by Mr Ramful himself, but he has been ably represented here this morning by Mr Epstein through the ELAAS scheme. Mr Epstein has rightly and inevitably conceded that the findings of the tribunal require us to proceed on the basis that the act or acts complained of were not continuing beyond June 1995, and he again rightly and inevitably concedes that time did begin to run in June of 1995.

	He seeks to advance two grounds of appeal. The first is that in his submission the wording of the decision shows that the Industrial Tribunal applied the wrong test or took into account an irrelevant factor or factors. He draws attention in particular to the words in paragraph 6 of the decision “balancing the needs of the parties”. He has helpfully referred us to the treatment of the subject in Harvey and to the well-known formulation in Hutchison v Westward Television Ltd [1977] ICR 279, where this tribunal observed that the words conferring the discretion give an Industrial Tribunal “a wide discretion to do what it thinks is just and equitable in the circumstances ... They entitle the industrial tribunal to take into account anything which it judges to be relevant”.  Mr Epstein also draws our attention to the following paragraph in Harvey, paragraph 278 and the emphasis in the wording “in all the circumstances of the case”. 

	It is well-known that this appeal tribunal very rarely interferes with the discretion of an Industrial Tribunal on these questions of extension of time. It will of course interfere or allow an argument that it should do so, if there is something legally remiss about the approach of the Industrial Tribunal. In our judgment, Mr Epstein is seeking to apply far too pedantic approach to the words “balancing the needs of the parties”. It seems to us that the approach of the Industrial Tribunal here was entirely in accordance with the words of the statute and the discretion thereby conferred as explained in the Hutchison case. The Industrial Tribunal was taking into account “anything which it judges to be relevant”. Accordingly, we are of the unanimous conclusion that that ground of appeal would be doomed to fail if it were permitted to go to a final hearing.

	The second ground is that Mr Epstein submits that the language of the tribunal, to which we have referred, contains insufficient reasons to enable Mr Ramful to know why he lost. He couples with that a submission to the effect that the Industrial Tribunal did not find material facts. The contention he makes is that paragraph 5 of the decision, for example, is simply a repetition of what the respondents’ advocate had been submitting, rather than a finding of fact that that was correct.

	That again seems to us to be taking an unduly demanding approach to the way in which the decision is set out. As it happens, it was not denied on behalf of Mr Ramful that he had lost a previous application on a similar point as being out of time some years earlier, and Mr Ramful has not suggested in any of his documentation that that was not the case. As we understand the approach of the tribunal, what happened was that the two parties made their submissions by the union representative and by Counsel on behalf of the respondents; it was not a case of disputed evidence and there was no opposition to what was being put forward on both sides. In these circumstances, it seems to us, that the Industrial Tribunal assumed the contents of paragraph 5 to be correct, and were entitled to do so. It is abundantly clear from the decision why Mr Ramful received an adverse outcome. Again, we have come to unanimous conclusion that there is nothing in the grounds of appeal which are sought to be put forward which would merit rehearsal at a final hearing. 

	It follows that, notwithstanding the capable submissions of Mr Epstein, that this appeal is dismissed at this stage.