Appeal No.	EAT/1429/98 
		EAT/143/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 April 1999

Before
HIS HONOUR JUDGE H J BYRT QC
MR I EZEKIEL
LORD GLADWIN OF CLEE CBE JP

MR D CHRISTIAN	APPELLANT

TASKCROWN EMPLOYMENT AGENCY & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR 
REPRESENTATION 
BY OR ON BEHALF OF 
THE APPELLANT	

	JUDGE JOHN BYRT:	This is a preliminary hearing in an appeal against a decision promulgated on 26th October 1998 of an Employment Tribunal Chairman sitting alone at Southampton.  By that decision the Chairman considered an application for an extension of time in which the Applicant, Mr Christian, might pursue a case of racial discrimination and he refused the application.  Mr Christian, the Applicant, appeals.

1	Mr Christian alleged that he was racially abused on Friday, 7th November 1997 by a Mr Bowles, the Second Respondent, who was an employee of the First Respondent, and on 10th November, by three unnamed employees of the Third Respondent.  On Monday 10th November 1997, Mr Christian was dismissed by the First Respondent, for reasons which he alleges amount to further evidence of racial discrimination.  Therefore in order to comply with the time limits of the Racial Discrimination Act, he needed to file his originating application by 10th February 1998.  In fact, the originating application in this case, was received by the Employment Tribunals on 24th July 1998 and therefore, clearly the application was filed out of time and he therefore needed leave to enable his case to proceed.  Whether the extension of time was granted or not was in the discretion of the Tribunal Chairman, who, by reason of the fact that leave was required, had to considered whether it was just and equitable to grant the extension.  As to what is “just and equitable” is for the Chairman himself.  As he decided that it was not just and equitable to extend time, our function is to review his reasonings for that decision.  It is not for us to say whether we agree or disagree with those reasons.  Our function is to review his reasons to see whether they disclose an error of law.

2	Thereafter, Mr Christian having failed in his application to the Employment Tribunal, applied for a review of the decision.  On the 16th November 1998, the Chairman, again, refused that application for a review.  

3	Mr Christian appeals that review decision as well.

4	Mr Christian’s explanations for the delay which took place between February and July are various.  He says that he consulted a solicitor under the Legal Aid Green Form Scheme some time on the day, 10th November the same day on which he was dismissed.  The solicitor, very shortly afterwards, sent both the First and Third Respondents the appropriate questionnaire and received back the replies in early December.  In December or January, Mr Christian had a meeting with his solicitor, but thereafter, apparently nothing happened.  It was suggested that possibly, there had been a problem arising on the Green Form - the emergency certificate for Legal Aid.  Mr Christian says that he was not worried by the delay because he was familiar with Crown Court proceedings and was merely awaiting the trial date.  But then there came a time when even he was getting concerned about the delay which was happening, as he was hearing nothing from the Court.  Accordingly, he went to see his solicitor and discovered for the first time that nothing was being done.  He says for that reason he changed his solicitor.  That probably was a date in July because he says that thereafter he was advised to go promptly and enter an appeal against the Tribunal decision and apply for an extension of time in which to do so.  Indeed, there was a hand delivery of the application and of the appeal dated 24th July, some 5½ months by then out of time.  It was not signed.  It was not dated and contained no particulars of the racial abuse which he was alleging.  Accordingly, the Tribunal wrote a letter to the solicitor, named as representing Mr Christian and the Tribunal received back a letter to the effect that the solicitors were not instructed in the matter.  Mr Christian was then asked for the particulars of the racial abuse he was alleging and also, he was asked for the names of the three employees of the Third Respondents, so that they, in due course, could be served as well.  

5	The explanation first tendered by Mr Christian for the delay was that he was attributing everything to the negligence of the first solicitor consulted. He says that he deliberately delayed processing his case at the instigation of the police, with whom he, Mr Christian, had a running feud because he had refused to be a police informer.

5	Mr Christian’s second reason for delay was that he had made allegations against the police to the Home Secretary, who was investigating them as also was his Member of Parliament.  He was awaiting the results of those investigations before he proceeded with his appeal because he thought that the police were at the root of the racial abuse on 7th November.  

7	The Employment Tribunal refused the extension.  The reasons of the Chairman were that the application was 5½ months out of time.  Whilst he accepted that that was not a conclusive factor in the matter, there were other reasons as well.  He says that there was no good reason why Mr Christian was unaware of the time factors because at the appropriate time he was being advised by a solicitor.  The Chairman also found that he was receiving advice from the Local Council for Racial Equality.  He evaluated the explanations tendered by Mr Christian, in particular, the allegation that the solicitor had deliberately delayed his application at the instigation of the police, and he found that a better reason for the delay was that the solicitor whom Mr Christian first consulted had seen difficulties in the way of processing the case after reviewing the answers to the questionnaires which had been sent in by the Respondents.

8	The Chairman thereafter, went on to consider possible prejudice to the Respondents were he to grant an extension of time, and he came to the conclusion that the basic allegation, being made by Mr Christian was that there was a conspiracy between the police, the solicitors, and the employees involved, that it was still not known what was the abuse upon which Mr Christian relied and that it would be unfair to allow the case to proceed when Mr Christian declined to make known the essential, crucial factors relating to the charges he had brought.

9	The last point the Chairman took into account was the merits of the case.  He said it was essentially, Mr Christian’s word against that of Mr Bowles.  Whilst Mr Christian said he was awaiting the supporting evidence to come from the Home Secretary, there was in fact no evidence the Home Secretary was doing anything about Mr Christian’s complaint.  Accordingly, he came to the conclusion that it would not be just and equitable to allow the extension of time.

10	So far as the jurisdiction of this Tribunal is concerned, it is not for us to say how we would have exercised our discretion had we been considering the matter afresh.  Our function is to review the Chairman’s exercise of discretion and the reasons he gave for the way he exercised it to see whether there was an error of law.  The Tribunal Chairman heard the evidence of Mr Christian and was in a position to evaluate his evidence.  He came to the conclusion that there was no proper explanation for the delay.  Equally, he exercised his discretion again when he was asked to review his previous decision.  Essentially, he came to precisely the same decision.  

11	Having regard to all the facts found in the reasons and Mr Christian, not being present to argue this matter before us so that we could take into account any additional points he might wish us to consider, we are not able to say the reasons of the Chairman disclose any arguable error of law.  It is therefore our duty to stop this case at this stage by dismissing the appeal.  That is the course we propose.  We therefore dismiss the appeals.