Appeal No.	 EAT/231/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 May 2000
Judgment delivered on 7 November 2000

Before
THE HONOURABLE MR JUSTICE NELSON
LORD DAVIES OF COITY CBE
MR T C THOMAS CBE

ZAHRA ARUBE	APPELLANT

DEVON PROBATION SERVICE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS IJEOMA OMAMBALA
(of Counsel)
Commission for Racial Equality
Elliott House
10-12 Allington Street
London
SW1E 5EH	
For the Respondents	MR NICHOLAS SPROULL
(of Counsel)
The County Solicitor
Devon County Council
County Hall
Topsham Road
Exeter
Devon
EX2 4QD	

	MR JUSTICE NELSON:	

1.	The appellant commenced employment with the Devon Probation Service in September 1991. She was the first black probation officer to hold office in Devon. By an originating application dated 11th September 1996 she complained that she had been subjected to unlawful racial discrimination from the commencement of her employment up to and including the date of the formal warning she received on the 14th June 1996. The Employment Tribunal sitting at Exeter found that three of the ten matters of which she complained constituted unlawful racial discrimination, the first being raised res judicata, but nevertheless dismissed her complaint on the basis that it was out of time and that it would not be just and equitable for them to exercise their discretion to extend time.

2.	The appellant appeals against that decision, contending that the Tribunal’s findings were either erroneous or perverse, that her claim was in time as the evidence had established the existence of a discriminatory practice policy or regime which constituted a continuing act of discrimination extending over the whole period of her employment, and that even if the claim was out of time it was clearly just and equitable on the facts for the Tribunal to exercise their discretion to extend time.

3.	The respondent contends that the Employment Tribunal heard the case over some ten days and delivered a detailed and careful decision which reveals no errors in law or the exercise of discretion or perversity in the findings of fact.

4.	The appellant had issued an earlier application on the 1st December 1995 complaining of discrimination dating back to November 1993. She withdrew this application on the 11th February 1996 but purported to make that withdrawal conditional by reserving the right to use the information contained in the application in any future claim against the Devon Probation Service. That application was dismissed on the 14th February 1996 but in 1998 the appellant sought a review of that decision. The Employment Tribunal found on the 10th November 1998 that the appellant was estopped from litigating upon the claims raised in her first application of the 1st December 1995 as they were res judicata, but that she would be permitted to lead evidence of matters raised in her first application as background to the claims which she made in her originating application of the 11th September 1996.

5.	The appellant did lead evidence of the matter which had been found to be res judicata as one of the ten matters of which she made complaint. The Tribunal heard evidence, and made findings upon that complaint even though they had already found that it was res judicata. They also heard evidence of a complaint about an evaluation of the appellant’s performance by Mary Mitchell dated the 6th March 1992 even though that had not been a head of complaint in the originating application. They noted that the applicant relied upon that matter as evidence of a practice or policy of discrimination.

6.	The Employment Tribunal noted in paragraph 2 of its decision that the appellant alleged that all the matters of which she complained were part of a continuing act of discrimination, taking into account the complaint that had been found to be res judicata and the complaint which had not been included in the originating application. In paragraph 5 of their decision the Employment Tribunal noted that the appellant asked them to find that all the matters of which she complained were properly to be treated as a continuing act extending over a period of time, continuing up to and beyond the date of the last specific matter of which she complained. They noted that she invited them to find that the whole of her application was in time, alternatively that it would be just and equitable for them to consider her complaint notwithstanding it was out of time. It is therefore clear on the face of the decision that the Employment Tribunal heard and considered evidence of the whole span of the appellant’s employment from the evaluation of her performance for confirmation in post on the 6th March 1992 to the formal warning in June 1996 and did so for the purpose of assessing whether the complaints that she made constituted a practice or policy of discrimination, or a continuing act.

The Tribunal findings.  

7.	The ten complaints made by the appellant are set out in paragraph 3 of the decision. In the three cases where they found that there had been racial discrimination the Employment Tribunal made their findings in strong and clear terms. Indeed their findings throughout are carefully considered and clear.

8.	In view of the allegations of perverse findings it is necessary to consider the facts in some detail. The findings in relation to each of the ten complaints are as follows:-

(i)  	The evaluation report by Mary Mitchell.

9.	The Tribunal rejected the appellant’s contention that the discrimination against her began with an over critical evaluation of her performance by Mary Mitchell at the end of her six month probationary period at the end of which she was not, at that stage, confirmed in post. The appellant alleged that the report contained negative overtones and that such positive comments as were made were expressed grudgingly. Comparison with reports on two other officers who were in a similar position to herself confirmed her suspicions. The Tribunal rejected the “powerful criticism” directed against Mary Mitchell’s report stating that they were quite unable to find that it was generally negative in its tone or that it was unbalanced in its assessment of the applicant. Instead they found that although criticisms were made, the assessment portrayed the applicant favourably. This was the first matter relied upon by the appellant as evidence of a practice or a policy of discrimination against her.

(ii) 	The court room incident.

10.	The appellant’s work was criticised by a judge of the Crown Court. The appellant was told to go to Court but not informed of the detail of the criticism which the judge had made. When she arrived at Court she was not assisted by fellow probation officers who distanced themselves from her and when she went to give evidence was questioned by the judge as to why she was affirming rather than taking the oath. This caused her considerable embarrassment. She complained of lack of support from her colleagues in failing to inform her of what the criticisms of her report were, or were likely to be, in distancing themselves from her in court and in failing to discuss the matter properly with her afterwards.

11.	The Tribunal found that the appellant was summoned to court by a fellow probation officer, Elizabeth Bailey who did not tell her the reason for her attendance. Ms Bailey did not sit next to her in court. After the court appearance Ms Bailey was apparently discussing the matter with Mr Chown, a senior probation officer, but the applicant was not invited to join in and felt excluded and marginalised. The appellant gave evidence on this matter and Mr Moore, a senior probation officer, gave evidence on behalf of the respondent. There was no evidence from either Ms Bailey or Mr Chown before the Tribunal.

12.	The Employment Tribunal stated that they were unable to find on the evidence before them that Ms Bailey knew the criticisms that were to be made of the appellant when she was summoned to court, but that in failing to sit beside her in court she had failed to provide the support that the applicant would have expected from colleagues. They said that they found it impossible to make a finding about Ms Bailey’s reasons for acting as she did and further concluded that common-sense and good practice required that the applicant should have been involved in the subsequent discussion between Ms Bailey and Mr Chown.

13.	The Tribunal stated that they had to make their findings based upon the evidence of the applicant and upon such contemporaneous documentation as they had seen. This documentation (trial bundle 146, 151) and Mr Moore’s evidence (EAT bundle 133) showed that the judge’s concern about the appellant’s work was that no action had been taken when it was known that a client was in breach of a bail condition and the probation order. This was a serious criticism of a probation officer in the performance of one of the fundamental tasks of the probation service. The Employment Tribunal state in paragraph 9 of their decision that Ms Bailey’s and Mr Chown’s conduct was undoubtedly bad manners, but not less favourable treatment of the appellant:-

"what had occurred in court in relation to the report submitted by the applicant appears to have placed the Probation Service in a bad light and, in our view, both Ms Bailey and Mr Chown wished to distance themselves from the applicant. We are not persuaded that they would have treated differently any other probation officer who in their eyes had let the Service down in a similar fashion. Accordingly we are unable to uphold this head of complaint."

14.	When the appellant was being cross-examined about the professional concerns which had arisen from the investigation into Judge Taylor’s criticism of her the Chairman’s note records her as saying “in Court Liz Bailey could have briefed me as to what Judge Taylor wanted. She knew and decided to sit away from me not because I am black but it left me feeling very marginalised.” (EAT 61)

(iii) 	The Chown memorandum.

15.	The Tribunal found that this document was written after it had come to Mr Chown’s attention that the court duty officer had offered an apology in court for a report that had been written by the appellant. Mr Chown wrote a hand-written memorandum of the 29th November 1993 to Mr Moore, the appellant’s line manager, annexing the report and stating:-

"This is the pre-sentence report that was presented to court today for which the court duty officer had to apologise. This is something that is occurring with repeated frequency and all court duty officers are losing patience and tolerance. Furthermore, solicitors are quite blunt in their criticism and clients .. are very dismissive of her intervention."

16.	The Tribunal accepted the appellant’s evidence that the normal procedure in such circumstances where there was a problem with a report would be for the court duty officer to contact the probation officer to discuss the problem and only if problems persisted would the matter be dealt with through the officer’s line manager. There had been no discussion with the court duty officer and no copy of the memorandum was sent to the appellant. Mr Chown had not therefore followed the normal procedure.

17.	The appellant instituted the respondents’ grievance procedure in respect of Mr Chown’s note on the 21st February 1994. Mrs Horsman, an assistant chief probation officer, was appointed on the 5th May 1994 to investigate the matter. There were considerable delays in the preparation of this report, and it was not until the 14th November 1994 that a preliminary report was produced. As a consequence Mr Vizard, another assistant chief probation officer was appointed to investigate the grievance set in motion on the 21st February 1994 and he reported on the 22nd March 1995.

18.	He concluded that level and tone and quantity and quality of the criticisms made of the applicant’s pre-sentence reports were disproportionate. He concluded that the quantity and quality of criticism of Mrs Arube by the managers of the service contained a discriminatory element but was very clear in his view that this was neither intentional nor conscious. He did however consider that there was a basical cultural level of discrimination which was engaged to some degree in the pattern of criticisms. He concluded that the memorandum was improper; it was an insensitive and sweeping indictment of the appellant without specific evidence which could have been examined and tested. He recommended amongst other things that Mr Chown should make a written apology to the applicant, that conciliation through, for example, the appointment of an independent black consultant was needed, and that the race awareness training programme of the Probation Service needed to be reviewed. The respondents accepted Mr Vizard’s findings.

19.	The Tribunal said that but for the fact that this head of complaint was res judicata, they would have had little difficulty in finding that the applicant was subjected to less favourable treatment and it would have been impossible to avoid drawing the inference that the reason for that discrimination against the applicant was her race. Mr Chown was not called to provide any justification for his actions and many of the respondent’s witnesses sought to distance themselves from the memorandum. But for the fact that the matter was the subject of an earlier complaint which they had dismissed the Tribunal said that they would have found for the applicant on this point.

(iv) 	The first grievance - 21st February 1994.

20.	The grievance procedure was instituted because of the delay in producing Mrs Horsman’s report. The Tribunal found that during the summer of 1994 Mrs Horsman had reason to believe that she might have been suffering from a very serious medical condition which resulted in her taking time off work and that appears to have been why she was so slow in making progress with her investigations. The difficulties being experienced by Mrs Horsman should have however come to the attention of the chief probation officer Mr Read, and action taken, if necessary by appointing someone else to undertake the investigation.

21.	The Tribunal had no hesitation in finding that the manner in which the respondent dealt with this grievance was indefensible. This may have been due to lack of experience, or training in relation to discrimination, but that did not excuse the fact that it took them nine months to produce a preliminary report. They had no hesitation in concluding that the manner in which the first grievance was dealt with amounted to discriminatory treatment of the applicant. Everyone was well aware that the appellant was complaining of racial discrimination and the failure to deal with the matter promptly led to the Tribunal stating that they were driven to infer that the reason for the treatment received by the applicant was her particular status within Devon Probation Service, namely that she was the only black probation officer. The Tribunal therefore concluded that in its manner of dealing with the applicant’s first grievance the respondent unlawfully discriminated against her. 

(v) 	The threat to kill.

22.	The appellant was responsible for a young client of the probation service who had been admitted to a psychiatric unit. On the 10th August 1994 the father of the client went to the unit and removed his son saying to the staff “its all that black bitches fault. I am going to wait in an alleyway when she goes home and kill her.” The applicant was not present when this was said but the threat was reported to the probation service because of its seriousness and because the client’s removal from the unit amounted to a breach of his probation order.

23.	The appellant was instructed to attend court the next day to obtain a warrant for the arrest of the client but was not at that stage warned of the threat. Notes made by the appellant of these events on the 11th August indicate that she was later told that the client’s father had made a threat to kill her in an ugly way. 

24.	Mr Moore contacted her at home on the evening of the 11th August to ask if she was all right. Mr Ruffles, the acting assistant chief probation officer, also contacted her at home the same evening. The appellant commented to him that it was unusual she had received two calls in one day from senior probation officers. Mr Ruffles sought to persuade the police to prosecute the man who had made the threat and he eventually succeeded in doing so.

25.	In her note of the 15th August the appellant records a meeting taking place between her and the parents of the client with the appellant noting that the parents “indulged themselves in their usual hysteria which frankly proved to be tedious.”

26.	The appellant continued to work until the 22nd August when she took a pre-arranged period of leave. During that time she let it be known that she did not wish to be contacted at home. From the end of the leave, on the 8th September, she was away from work suffering from an acute anxiety reaction due to the death threat she had received at work. She was then away from work for an extended period.

27.	The respondent had in place a risk management procedure for dealing with acts of violence against probation officers. The procedure covered assault or threats of violence, injury or verbal abuse (including racist remarks or sexual harassment) or other anti-social behaviour. The Employment Tribunal found that the risk management procedure was designed to be used where there was a risk to a probation officer from a client of the Service and not a risk emanating from a third party. They did however consider the complaint of lack of support on the evidence before them and concluded that at the time the appellant wrote her note of the 15th August referring to the parents usual hysteria which proved to be tedious, she was indicating that she was neither afraid nor unduly upset. The Tribunal found that she was reasonably resilient and coping professionally with the situation in which she found herself albeit that might have changed by the time she went on leave on the 22nd August 1994. There was nothing in the evidence to suggest to the Tribunal that the change of attitude occurred before she went on leave or that before she left work the applicant said anything to indicate that her feelings had changed and that she was then afraid and in need of support. They did not therefore accept her criticism of the respondent in relation to this allegation, but found that it was not well founded and rejected her assertion that she was subjected to less favourable treatment.

(vi) 	The second grievance procedure - 28th October 1994.

28.	The substance of this grievance was the manner in which her first grievance was being handled. Both grievances were upheld but the appellant contended that the respondent had failed to consider or implement disciplinary or capability procedures with respect to her superiors who had been found at fault, and failed to implement a recommendation to appoint a black consultant to assist the applicant.

29.	The Tribunal found that Mr Read, the chief probation officer upheld the grievance and acknowledged that the Service’s failure to deal promptly with the first grievance was a serious matter. He apologised to the appellant and appointed Mr Vizard to take over the investigation of the first grievance. After Mr Vizard had reported on the 30th March 1995 Mr Read wrote to Mr Rogan, the trade union representative assisting the appellant, commenting in detail on the recommendations made by Mr Vizard both in relation to appellant’s personal situation and the broader issues about the Service. Correspondence then took place about the appointment of an independent black consultant and the cost of engaging such a consultant. The appellant complained to the Tribunal that the fees offered were quite inadequate. The Tribunal found that that may have been so although they had heard no evidence one way or the other. Neither the appellant nor her representatives made any alternative proposals and the Tribunal found that they did not feel that the preponderance of the blame for failing to secure the appointment of the consultant rested with the respondent; the appellant’s consent and co-operation in such an appointment was required but very little came by way of response from her side.

30.	The respondent required Mr Chown to write a letter of apology to the appellant in accordance with Mr Vizard’s recommendation. He did so. The Tribunal having considered the matter concluded that their firm view was that the matter did not merit Mr Chown’s dismissal from the Service. As to whether he should have been given a formal warning, the Tribunal concluded that the protracted procedures following Mr Chown’s memorandum culminating in the instructions to write a letter of apology amounted to the clearest possible warning as to the inappropriateness of what he had done and the discriminatory tone of his memorandum. The Tribunal concluded that the appellant had not been subjected to less favourable treatment and rejected this head of complaint.

(vii) 	The audit into the appellant’s claim for expenses.

31.	In the course of a routine investigation in which he checked the records of all the probation officers in the team for the mileage they had claimed for similar journeys, Mr Moore found a significant number of discrepancies in the appellant’s claims. Expenses had been claimed in respect of home visits where none appeared to have been made and some 72 out of 100 client contacts had not been properly recorded by the appellant. There was no criticism of Mr Moore about the way he had uncovered the facts but it was said that an investigating officer should have been appointed rather than referring the matter to auditors. The Tribunal concluded however that in the case of the investigation of financial irregularity the involvement of auditors to establish the facts in a professional manner was a sensible step to have taken. They rejected this head of complaint and that finding is not appealed against.

(viii) 	Suspension pending the investigation.

32.	On the 24th November 1995 Mrs Culverhouse, assistant chief probation officer, wrote to the appellant informing her of the inconsistencies and discrepancies which Mr Moore had found and stated that they were sufficiently serious to warrant further investigation and that she therefore proposed to ask audit staff of Devon County Council to investigate. Although she was absent from work due to illness at the time the appellant was also suspended until further notice.

33.	In their findings the Employment Tribunal said:-

"although the local disciplinary procedure gave Mrs Culverhouse the right to suspend the applicant, Mr Rogan, whose evidence we found most persuasive upon this point, told us that it was a breach of custom and practice to suspend an officer whilst he or she was away sick. He knew of no other instance in which an officer had been suspended in those circumstances. We accept that and find that the applicant’s suspension amounted to less favourable treatment of her."

34.	The Tribunal were of the view that if the appellant returned to work during the course of the audit and that this created a problem, it was open to the respondent to suspend her immediately on her return to work. They concluded:-

"we have in mind the background against which this matter was now proceeding. We have in mind Mr Vizard’s very clear findings. In the absence of a persuasive explanation from the respondent, we draw the inference that the reason for the applicant’s suspension was her race and accordingly we uphold this head of her complaint."

35.	The auditors reported on the 19th December 1995 confirming Mr Moore’s initial findings. They found that mileage had been claimed on five occasions when the appellant was on sick leave as verified by the report of absence form, leading to a claim for a total of 180 miles amounting to £57.06p claimed when she was off sick. Mileage had been claimed for five home visits on the same dates when the clients were recorded in the visitors book as having visited the probation office, and numerous examples were found of home visits being claimed but no entry recorded on the probationer’s case records. On at least fifteen occasions the appellant claimed for several home visits on the same day whereas there would have been no reason for the appellant to return to the probation office between visits. The auditors concluded that as the appellant’s records could not be guaranteed the mileage claimed for each visit were probably incorrect. (Trial bundle 86)

(ix) 	The capability procedure.

36.	On the 25th January 1996 Mrs Culverhouse wrote to the appellant stating that after giving the matter careful consideration she was prepared to accept that the discrepancies identified did not constitute a deliberate attempt to defraud the Service. Serious deficiencies in professional practice had however been identified which needed to be resolved as a matter of urgency. On the 7th February 1996 a meeting was held and attended by Mrs Culverhouse, other representatives of the respondent and the appellant and Mr Rogan. Mrs Culverhouse stated that the options were either disciplinary proceedings or the capability procedure avenue, and that she had decided to opt for the capability route. The appellant and Mr Rogan are recorded in the minutes of the meeting of the 7th February 1996 as approving the choice of the capability route and the suggested outline process and Mr Rogan confirmed the appellant was more than prepared to address the shortfall in her practice but would not feel able to do so without being given the opportunity of a fresh start. The pressures of resuming work after a prolonged absence and the stress arising from the matters highlighted in Mr Vizard’s report on the grievance procedure were matters which Mrs Culverhouse wanted to keep separate from those to be addressed in the capability procedure but she pointed out that the choice of the capability route was in itself an acknowledgement of previous difficulties being a contributory factor to the appellant’s performance shortfalls. It was recorded in the minutes of the 7th February 1996 meeting that there was a consensus on the fact that the appellant’s practice had fallen short in the following areas:- record keeping of contact, mileage claim accuracy, reliability of information on record, quality and frequency of contact, planning / partnership with secretary, timeliness / meeting of deadlines.

37.	The Tribunal note that a review of the capability procedure was held on the 13th June 1996 when a report prepared by Mr Moore on the appellant’s performance was discussed. The review was extended for a further period of three months but the appellant was told, and this was confirmed in a letter of the 14th June 1996 that if she failed to meet the standards of performance outlined during the course of the meeting Mrs Culverhouse may have to conclude that there was no alternative but to recommend termination of her employment on the grounds of lack of capability. Mr Moore had concluded in his report that the applicant had not demonstrated a sustained and consistent improvement during the proceeding three months, having made due allowance for the fact that the applicant had been absent from work for periods of time, but against that had returned to work on a reduced workload.

38.	The Employment Tribunal stated that they had subjected Mr Moore’s review of the applicant to detailed and critical analysis. They were unable to accept the suggestion that the report was generally negative in its tone and found that Mr Moore’s comments were properly reasoned. They were unable to accept the general proposition that the report was slanted against the applicant or that Mr Moore was anything other than objective in his approach. They concluded that if Mr Moore’s assessment of the applicant was that she was continuing to perform at an unsatisfactory level, then he had no alternative but to say so.

39.	The appellant contended before the Employment Tribunal that in view of the stress that had been suffered by her as a result of the issues highlighted by the grievance procedures it was not appropriate to institute a capability procedure. Furthermore all these matters had had a significant detrimental effect upon her performance during the capability procedure.

40.	The Employment Tribunal concluded that the respondent’s decision to implement a capability procedure was reasonable and rejected the suggestion that it amounted to less favourable treatment of the appellant. 

(x) 	The formal warning.

41.	The Employment Tribunal found that Mr Moore’s report, which they considered was a fair and reasonable assessment of the appellant after three months of the capability procedure, showed that the appellant was not improving in certain key respects, particularly in relation to the administrative side of her work. The appellant contended that part if not all of her poor performance was caused by stress in the grievance procedure. The Employment Tribunal were unable to say whether this was so or not but found that the respondent had reduced the appellant’s workload and it was difficult for them to imagine what more could have been done to help her improve her performance. They found that the respondent was correct in not instituting any disciplinary procedure in relation to the discrepancies and in not warning the appellant at the outset of the capability procedure that failure to improve might lead to dismissal. They concluded that they were quite unable to find that the respondent’s warning to the applicant at that time could be categorised as less favourable treatment. Instead they found that in the circumstances it was wholly appropriate for the applicant to be warned that if her performance did not improve her continued employment could be in jeopardy. They therefore rejected that head of complaint.

The time limit.

42.	The Employment Tribunal found that the appellant’s complaint was out of time. They stated that only the last head of complaint was presented within the time limit prescribed by section 68(1) of the Act. They considered the appellant’s contention that the matters of which she complained amounted to an act extending over a period which was to be treated as having been done at the end of that period by virtue of section 68(7)(b) and set out the authorities to which they had been referred, in particular, Barclays Bank -v- Kapur [1991] IRLR 137 and Owusu -v- London Fire & Civil Defence Authority [1995] IRLR 574. They found that the argument under section 68(7)(b) did not assist the applicant in view of the fact that they had rejected the only complaint that did fall within the time limit prescribed by section 68(1). They continued:-

"had we found otherwise in relation to that complaint, we should still have had considerable difficulty in categorising that act of alleged discrimination and the other matters in respect of which we found in her favour as an act extending over a period of time, within the meaning of section 68(7), as explained by the authorities to which I have referred."

The exercise of discretion.

43.	The Employment Tribunal declined to extend time under section 68(6). They considered the application that in all the circumstances of the case it would be just and equitable for them to extend time and said that three matters seemed to them to be of particular relevance to the exercise of that discretion. Firstly that they had heard no evidence as to why the appellant delayed until September 1996 in lodging the application, secondly, there were no material facts concealed from her and thirdly she had had most able assistance from Mr Rogan and assistance and encouragement from the Association of Black Probation Officers.

44.	They noted that all but one of the applicant’s complaints was presented out of time and several of the complaints very significantly out of time. In the absence of any explanation for that delay they concluded that it would not be a proper exercise of their discretion to allow the application to proceed out of time.

The Submissions and our findings.

45.	The appellant contends that the Employment Tribunal’s decision is fundamentally flawed, both in its assessment of important factual issues, and in its failure to consider the factual matrix in the round both generally and when considering whether the time limit had expired. It is in the circumstances appropriate to consider the Employment Tribunal’s approach to the facts before turning to the areas of law alleged in relation to the time limit, and the exercise of its discretion as to whether to extend the time limit.

The Employment Tribunal’s findings - perversity and misdirection.

(i) 	General - failure to consider the appellant’s complaints as a whole.

46.	In paragraph 7 of their decision the Tribunal stated that they had addressed themselves to each of the applicant’s several complaints. The appellant submits that this demonstrates that they looked only at each complaint separately whereas they should have looked at the picture overall. They were required to consider the complaints by having regard to the totality of the circumstances rather than considering each isolated incident. Reed -v- Steadman (1999) IRLR 299. This criticism of the Tribunal’s approach to the evidence, is a general criticism but also relates in particular to the manner in which they assessed the argument as to the time limits under section 68(7)(b) of the Act. As to the general criticism, a Tribunal must certainly consider not merely each act complained of in isolation but the picture as a whole. If they do not do so there is a danger that a pattern linking the various individual complaints, and throwing different light upon them, will be overlooked.

47.	A proper reading of the decision however demonstrates that the Employment Tribunal did not fall into this error. It is stated at the outset of the decision that the Tribunal heard evidence relating to almost the entire period of the appellant’s employment in view of the fact that she complained that she suffered unlawful discrimination from the commencement of her employment up until the date of the formal warning, and that all those matters were part of a continuing act of discrimination. They therefore considered the Chown memorandum, even though they had earlier found that that was res judicata, and also considered the Mary Mitchell evaluation even though that was not part of any head of complaint. They took this course because they were aware of the need to consider the whole of the appellant’s employment. The fact that they were conscious of the need to consider all the matters of which the appellant complained because she alleged that they were part of a continuing act is clear not only from paragraph 2 of their decision but also from paragraph 5. It was against that background they state in paragraph 6, that they made their findings of fact. Their appraisal of the facts is detailed and thorough, and considers in chronological order the appellant’s complaints through the whole of her employment. The fact that they were constantly aware of the need to look at the picture as a whole and be aware of any connection between the complaints is clearly demonstrated by the inference which they drew, that the reason for the appellant’s suspension was her race. They came to this conclusion because they said:-

"we have in mind the background against which this matter was now proceeding. We have in mind Mr Vizard’s very clear findings."

48.	Thus they cross referenced the report of Mr Vizard in relation the first grievance and the Chown memorandum, with the complaint about the suspension.

49.	We are satisfied that when read properly the decision of the Tribunal shows that they considered not merely each of the appellant’s several complaints but also those complaints within the context of the whole of the appellant’s employment by the respondent, and each complaint with reference to the other complaints made. We are satisfied that the Tribunal did indeed consider the totality of the circumstances.  

(ii) 	The courtroom incident.

50.	The Tribunal found that the appellant’s colleagues failed to sit beside her in court when she was waiting to be questioned by the judge who had criticised her report, and they failed to involve her in their discussions about what had transpired afterwards. The appellant submits that these findings demonstrated prima facie different treatment which the Tribunal itself recognised by stating that her colleagues had failed to provide the support that the appellant would have expected from them.

51.	As the appellant was the only black probation officer the respondent needed to call evidence to rebut the inference that the different treatment she received was because she was black. They failed to call any such evidence and the Tribunal was not therefore entitled to draw the inference that they did, namely that the report submitted by the appellant appeared to have placed the Probation Service in a bad light and hence Ms Bailey and Mr Chown wished to distance themselves from the appellant. 

52.	The respondent submits that the Tribunal heard the appellant and Mr Moore give evidence on this issue and saw the substantial documentation. It was not challenged that the appellant’s report was legitimately criticised by the judge. Where a serious criticism was being made of the Probation Service it was an entirely common sense inference for the Tribunal to draw that the other officers might wish to distance themselves from the appellant whose report had been criticised. It may have been bad manners as the Tribunal found but was not discrimination. Having heard the evidence the Tribunal concluded that the respondent would not have treated differently any other probation officer who in their eyes had let the service down in a similar fashion.

53.	Furthermore the respondent submits the evidence demonstrates that the appellant herself did not consider that her colleagues decided to sit away from her because she was black. Upon this evidence, and the evidence as a whole the respondent submits that the Tribunal’s conclusion was entirely justified.

54.	We are satisfied that the Employment Tribunal’s finding was not perverse. They heard the evidence of the appellant and Mr Moore and were able to consider the contemporaneous documentation which established that the criticism of the appellant was serious in that no action was taken when a client was in breach of a probation order and a bail condition. The Tribunal were, upon the evidence, entitled to find that the breach was such that they were not persuaded that any other probation officer would have been treated differently. The appellant’s own evidence that her colleagues had sat away from her, not because she was black, gave support to the view that this was not a case of racial discrimination.

55.	We are satisfied that the Employment Tribunal was best placed to make a decision on the facts of this particular complaint. Their conclusion in relation to the court room incident was certainly not one which no reasonable Tribunal on a proper appreciation of the facts or law could have reached.

(iii)  	The threat to kill.  

56.	The appellant submits that firstly, the respondent did not follow their own risk management procedure and secondly that they failed to provide the appellant with any appropriate support after she had received the threat to kill.

57.	As to the first submission the purpose of the risk management procedure was to protect members of the Probation Service from assault or the threat of violence or injury in the course of their work. It would be contrary to that purpose if the procedure was only intended to apply to such violence or threat from the offender himself as opposed to such violence or threat from the offender’s family or friends. Whilst the intention of the procedure may have been primarily to apply to clients it is not so limited, and the reference under the Introduction to “have to respond to members of the public who feel angry or hurt or frightened..” is one of several passages in the procedure which demonstrates that this so. We therefore conclude that the Employment Tribunal erred in finding that the procedure applied only to risks emanating from a client of the service and not from third parties.

58.	The Tribunal nevertheless considered whether there was in fact a lack of support and concluded that there was not. The appellant submits that the Tribunal failed to ask itself the question as to whether she was treated any differently but concentrated on the issue of whether she was upset or not. They were therefore looking at the consequences of the treatment she received rather than at whether or not it was discriminatory. The fact that she was “neither afraid nor unduly upset” did not mean that she did not take the threat seriously. There was no consideration given to whether or not the management procedure would have been implemented differently if the subject of the threat were a white member of staff. The respondent failed to follow para. 6.10.2 and para. 6.10.3 of their own procedure by not responding appropriately to the appellant’s problems. Whilst the evidence may have established that she coped initially she certainly did not thereafter, and there is no other explanation for her lack of support than her race.

59.	The respondent submitted that the Tribunal had before it the evidence of Mr Moore as well as that of the appellant upon this issue. The appellant appeared to be at that stage untroubled by the threat; she did not formally report the incident, and made the note about the parents indulging in their usual hysteria which “frankly proved to be tedious”. Shortly after this had happened the appellant went on holiday and objected to Mr Moore phoning her again at home. In fact Mr Moore, as the Tribunal found, had phoned her on the evening after she had discovered the threat to ask if she was all right and Mr Raffles also phoned her that evening. Given the fact that at that stage she did not seem troubled by the matter, even if she later became so, it is not true to say that she was not appropriately supported.

60.	The risk management procedure refers under para. 6.10.2, to the fact that the degree of distress and length of time before confidence returns depends upon the seriousness and circumstances of the attack itself and other related factors. A swift and appropriate response from managers is required to alleviate distress, reduce the period of shock and anxiety and sustain the personal confidence of the member of staff. Care, concern and support must be shown. Immediate support may best be given by colleagues of the same grade, race, team or gender.

61.	The Tribunal plainly had to determine the nature of the threat and its effect upon the appellant. The degree of stress and lack of confidence she showed would determine both in good sense and under the procedure the steps necessary in order to support her. It was therefore appropriate for them to consider, as they did, the following factors: that she remained at work for a further eleven days until she went on a holiday which had already been planned, that she did not complain or give any indication that she was treating the matter in any other way than with reasonable resilience and coping professionally, and that her own notes indicated that she was neither afraid nor upset in view of the nature of the reference she made to her meeting with the parents and them behaving in a manner which she found tedious.

62.	It was open to the Employment Tribunal to find upon the basis of this evidence that the appellant did not appear to need any greater support than that which she in fact received during the weeks immediately following the threat, namely phone contact to ascertain that she was all right. Thereafter it is clear that she did suffer stress as a result of this incident, producing to the respondent medical certificates from her GP certifying that this was so.

63.	We have considered this criticism of the findings of the Employment Tribunal with care. We are particularly conscious of the fact that the Employment Tribunal heard the evidence and is best placed to make the decision as to what distress the appellant suffered, how Mr Moore responded and whether that was appropriate in the circumstances that they found. We do not consider that it can properly be said here that the Tribunal misdirected itself in law in approaching the evidence or in concluding, as it did, that the appellant was not subjected to less favourable treatment. Nor do we consider that the finding was perverse.

(iv) 	The capability procedure.

64.	The appellant submits that she was offered no alternative to the capability procedure apart from disciplinary action. This decision was based on her performance which had suffered because of the discrimination she had received and was therefore tainted by racial discrimination.

65.	The capability procedure was therefore quite inappropriate given the fact that the significant and effective cause, if not the sole cause, of it being instituted was earlier unlawful discrimination.

66.	The respondent submits that it was never disputed that there were serious shortfalls in the appellant’s performance both in relation to her financial procedures and her practice as a probation officer. The professional concerns about her work as a probation officer were expressed on the 29th November 1993 after the criticism of her report and work had been made by the Crown Court judge. Those concerns were, professional judgment on her responsibility as a probation officer when clients offend, her need to respond and record responses to information from colleagues, her ability to appreciate colleagues need for information from her on her clients, the need for greater understanding of deadlines and not leaving disproportionate amounts of work until the last minute, the need to keep records up to date and key documents on file, and the need to examine the openness of response to criticism from colleagues. (Trial bundle 151)

67.	The allegations of financial irregularity could not have been regarded as anything other than serious. 72 out of 100 records made by the appellant were found to contain inaccuracies. In the circumstances the respondent had no other option than to follow the capability route. This was of benefit to the appellant as it gave the option to her to improve her practice which the disciplinary action would not have done.

68.	Furthermore both the appellant and Mr Rogan, albeit with some reservation that issues had not been addressed under supervision, approved the choice of capability procedure. Even if Mr Rogan preferred disciplinary action it had no mechanism by which the appellant could improve her practice.

69.	The evidence before the Tribunal of Mr Macklin (EAT 70), Mr Moore (EAT 74), Mrs Culverhouse (EAT 79) were all effectively saying that poor performance was not in their opinion due to illness. The respondent therefore submits that it could not be said on the facts as a whole that the Tribunal should have found that the appellant’s mistakes were due solely to her ill health.

70.	We are satisfied that there was clear evidence before the Employment Tribunal justifying their finding that the decision to implement the capability procedure was reasonable. Shortfalls in her performance had been noted in November 1993 prior to her being off work through ill health. Those included keeping records up to date and key documents on the file. The allegations of financial irregularity made in November 1995, which included inaccuracies in 72 out of 100 records, were serious allegations indicating a continued failure to record matters and keep records up to date. There was ample evidence before the Tribunal that the capability procedure was appropriate and their conclusion on this was properly fortified by the fact that Mr Rogan and the appellant had themselves agreed to it.

(v) 	The formal warning.

71.	The appellant submits that the Employment Tribunal failed to ask itself the central question of how a white employee would have been treated in similar circumstances and hence approached this head of complaint incorrectly. Further, it is submitted that the evidence established that Mr Rogan said that it was not the custom or practice to give a formal warning in circumstances where the employee had made significant improvements under a capability procedure. This evidence went to the heart of the question of whether the appellant was discriminated against under this head of complaint. The fact that the Tribunal had accepted evidence of custom and practice from Mr Rogan in relation to the suspension by the same officer who subsequently issued the formal warning demonstrated the force of the evidence. This submission however depended upon the recollection of counsel then appearing for the appellant at the Employment Tribunal hearings. He had no notes of his own re-examination when he thought that Mr Rogan had confirmed the custom and practice of not issuing a formal warning where significant improvements had been made, but recollected that he asked the question, and Mr Rogan confirmed that it was the custom and practice. The Chairman’s note however makes no mention of this and counsel’s and the solicitor’s clerk’s note of Mr Rogan’s cross-examination relied upon by the appellant’s counsel are not entirely clear upon the matter. The respondent’s recollection is that Mr Rogan did not say that it was custom and practice for an employee who had made progress under the capability procedure not to be formally warned. Their contemporaneous notes are consistent with no such answer having been given, as are the Chairman’s note.

72.	In these circumstances it is difficult for the appellant to put forward a positive case upon this matter. The evidence is not clear and the Chairman’s notes must prevail.

73.	The respondent submits that the evidence establishes that although there had been some improvement, the appellant’s work still not up to the appropriate standard. Mr Moore’s report, which the Tribunal found was properly reasoned and objective, concluded that the appellant had not demonstrated the sustained and consistent improvement he would have wanted to have seen even though she had been on a reduced workload. There were still examples of significant mistakes or omissions to reinforce the concerns about capability, and the lack of preparation and attention to advice demonstrated by the manner in which she dealt with a breach by a client was particularly disappointing. There were continued doubts about her capacity to deliver under the normal supervision and appraisal process.

74.	The respondent submitted that upon these facts the Employment Tribunal were entitled to find, as they did, that a formal warning was wholly appropriate. The appellant’s submission that the Tribunal misdirected itself by not asking whether a white employee would have been treated the same in similar circumstances is, the respondent submits, without merit. The Tribunal had to find the facts first which they did. They concluded as they were entitled to, that they were quite unable to find that the warning to the appellant could be categorised as less favourable treatment. Indeed they found that it was wholly appropriate for her to be warned that if her performance did not improve her continued employment could be in jeopardy. On these findings there was no further question for the Tribunal to ask.

75.	We are satisfied that the Tribunal approached this matter in the correct way and came to conclusions which were entirely justified upon the evidence before it. We see no error in law in their approach to this head of complaint and there was clearly evidence before them upon which they could make the finding that a warning was wholly appropriate and could not be categorised as less favourable treatment.

The Time limit.
(i) 	Section 68 of the Race Relations Act 1976. 

76.	The time limit for a complaint under the Act is three months from when the act complained of is done. (Section 68(1))

77.	Section 68(7) provides that:-

"(b) any act extending over a period shall be treated as done at the end of that period"

78.	An act will extend over a period of time if it takes the form of some policy rule or practice in accordance with which decisions are taken from time to time. (Owusu -v-London Fire & Civil Defence Authority [1995] IRLR 574). The application of a discriminatory policy or regime pursuant to which decisions may be taken from time to time is an act extending over a period. There does not have to be a formal or written policy. ( Cast -v- Croydon College [1998] IRLR 318.)

79.	Whilst there is a distinction between a one off act or a series of one off acts and a continuing act, (Barclays Bank plc -v- Kapur [1991] IRLR 136), a succession of one off acts can indicate the existence of a discriminatory practice by policy or regime which in turn can constitute a continuing act of discrimination extending over a period of time.

80.	Where such a practice policy or regime exists, the existence of the policy may be a continuing act of discrimination regardless of its most recent application. In those circumstances the three month period would not begin to run until the practice policy rule or regime ceased. (Cast -v- Croydon College at 322).

81.	The appellant submits that the lack of support given to the appellant and the failure to deal with her claims expeditiously are evidence of the existence of a practice or regime which was discriminatory.

82.	The failure to alert the appellant of the reasons for her attendance at court, and the failure of Ms Bailey to sit next to her in court or involve her in the discussion afterwards with Mr Chown, were all indications of a tacit policy or regime which had been allowed to take hold and exemplified itself in the failure of the appellant’s fellow probation officers to support their black colleague.

83.	Mr Vizard’s finding that there was a cultural level of discrimination, and Mrs Horsman’s preliminary finding that there were organisational deficits within the Probation Service showed the nature of the problem. Another example was the failure to inform the appellant that the threat to kill had been made.

84.	The real failure however, the appellant submits, lay in allowing lack of support, failing to address it, and failing to put in place proper procedures to eliminate it. This was evidence that there was a discriminatory practice, but the Tribunal did not consider this aspect of the case properly. They found that as they had rejected the single complaint that she made which fell within the time limit section 68(7)(b) did not assist her, when they should have considered the whole of her complaints and not just the last act. As a consequence not only did they fail to consider the matter properly, they failed to give adequate reasons for their decision.

85.	Ms Omambala in his helpful and succinct submissions on behalf of the appellant stated in his written submissions that the Tribunal appeared to believe their findings of one off acts of discrimination were inconsistent or incompatible with the existence of a discriminatory practice, policy or regime and further failed to appreciate that a succession of one off acts can indicate the existence of a discriminatory practice, policy or regime. 

86.	The respondent submits that it was right for the Tribunal to consider the last complaint together with the “other matters” in respect of which they had found in her favour. Whilst it was right to consider the evidence as a whole it was inappropriate to take into account those instances where they had found that the respondent had behaved perfectly properly. It could not conceivably be the case that seven failed allegations might make one good one. They only needed to look at those which they had found were established.

87.	This case is to be contrasted with the cases of Owusu and Barclays Bank; in the former there was a continuing failure to regrade over a period and in the latter a continuing failure to give appropriate pension rights over a period. Both cases plainly related to a continuing act. By contrast, in the present case, there were three distinct acts involving different people at different times. It cannot properly be said that on the evidence the Tribunal came to the wrong conclusion in making the findings that they made.

88.	Furthermore, the respondent submits, paragraphs 2 and 5 show that the Tribunal had firmly in mind the fact that the appellant’s case was that there was a continuing act. When they said that they would have “considerable difficulty” in categorising the discrimination as a continuing act they were in effect finding that the appellant had not satisfied them that the complaints they had upheld were part of a discriminatory regime as opposed to isolated acts. Given the nature of the acts, the different personnel involved and the time scale, the respondent submits that the Tribunal were correct in their conclusion.

89.	The Tribunal found that there was no act of unlawful discrimination within the time limit prescribed by section 68(1) and in that event the appellant was unable to argue that the matter she complained of amounted to an act extending over a period under section 68(7)(b). They then continued:-

	"had we found otherwise in relation to that complaint, we should still have had considerable difficulty in categorising that act of alleged discrimination and the other matters in respect of which we found in her favour as an act extending over a period of time within the meaning of section 68(7) as explained by the authorities to which I have referred."

90.	When coming to this conclusion it is clear from paragraph 19 of the decision that the Tribunal had considered the relevant authorities of Barclays Bank -v- Kapur and Owusu -v- London Fire & Civil Defence Authority and the appellant’s submissions on those authorities. The Tribunal carefully considered the complaints over almost the whole period of the appellant’s employment and did so because, as they make clear in paragraph 2, the appellant alleged “that all the matters of which she complains were part of a continuing act of discrimination.” In paragraph 5 of the decision the Tribunal again refer to the fact that the applicant asks all the matters of which she complains to be treated as a continuing act extending over a period of time, up to and beyond the date of the last specific matter of which she complains. In paragraph 3(i) of the decision the Tribunal expressly consider the evaluation by Mary Mitchell even though it did not form the subject matter of any complaint in the originating application, because the appellant relied upon the matter as evidence of a practice or policy of discrimination.

91.	We are satisfied that the Tribunal had the appellant’s case firmly in mind when hearing the evidence and making their decision. They were fully aware that it was being alleged that there was a continuing act and a practice or a policy of discrimination, and had in mind the relevant authorities. As the appellant submits, the Tribunal clearly believed that their findings of one off acts of discrimination were inconsistent or incompatible with the existence of a discriminatory practice policy or regime and furthermore appear to have considered that the one off acts of discrimination which they had found, when taken together, did not indicate the existence of a discriminatory practice policy or regime and hence that there was no continuing act of discrimination extending over time.

92.	Whilst they might have expressed themselves somewhat more clearly we are satisfied that the Tribunal were rejecting the appellant’s contention that there was a practice or policy of discrimination or that there was a continuing act extending over a period of time. Were they right to come to these conclusions on the evidence before them?

93.	As we have already found, the Tribunal in the course of considering the appellant’s complaints, clearly had regard to the whole picture: indeed they analysed almost the whole of the appellant’s employment in a comprehensive and thorough manner and assessed the respondent’s conduct throughout that period, having taken account of the reports of Mr Vizard and Mrs Horsman which commented upon the respondent’s actions and attitudes.

94.	We do not consider that the Tribunal were correct in finding that once they had rejected the single complaint within the time limit the continuing act argument under section 68(7)(b) did not assist the appellant. A Tribunal in such circumstances should then go on to consider whether there is a practice, regime or policy existing in accordance with which the decisions are taken from time to time, and in doing so consider whether there is evidence of a succession of specific instances which could indicate the existence of such a practice. That is, they should consider the and apply the principles expressed in Owusu and the other relevant authorities.

95.	This however is what the Employment Tribunal did in this case, albeit on a hypothetical basis, when they considered what the position would have been if they had found that the giving of a formal warning was discriminatory and then considered whether that and the three matters which they had in fact found amounted to unlawful discrimination together.

96.	We are satisfied that the Tribunal were entitled to conclude, as they did by rejecting her argument under section 68(7)(b), that there was no continuing act and no practice, policy or regime in accordance with which the respondents were taking decisions. There was evidence upon which they could properly find that the unlawful discrimination which they concluded had taken place, was neither intentional nor conscious and did not arise from any practice of discrimination, or policy to discriminate, or regime in which discrimination was encouraged or acceptable. The evidence permits findings that the discrimination they found arose from three separate acts of discrimination by different people, at different times, and were not acts which indicated the existence of a practice, or decisions taken in accordance with any practice.

97.	We are very conscious of the fact that the Tribunal heard the evidence on this matter for many days and had an excellent opportunity to form a clear view from listening to the appellant and many witnesses from the respondents as to whether there was a practice policy or regime in accordance with which decisions were taken.

98.	Their findings in paragraph 19 could have been expressed more clearly but the rejection of the appellant’s claim under section 68(7)(b) as explained by the authorities was plain and there was no misdirection in law. We remind ourselves that it is not appropriate for the reasoning of a Tribunal to be construed as if it were a statute. As the Court of Appeal said in the case of Jones -v- Mid Glamorgan County Council [1997] IRLR 685:-

"..if the Tribunal has directed itself correctly in law and reached a conclusion which is open to it on the evidence, the use in other passages of its reasons of language inappropriate to the direction it has properly given itself should not be allowed to vitiate the conclusion unless the relevant words admit of no explanation save error of law."

99.	Nor do we consider that the Tribunal erred in taking into account under section 68(7)(b) only those acts of unlawful discrimination which they had found proved. We reject the appellant’s contention that they should have considered all the complaints even those which, after careful consideration, they had rejected. Once such complaints had been considered and assessed in the context of the appellant’s employment as a whole, as they were here, to ensure that no linking pattern emerges which shows that what at first sight may be a doubtful claim is in fact a good one, they should not be reconsidered again in relation to the time limit. If they were, as the respondent submits, several complaints which have properly been found to be unjustified, might be said to amount to a justified complaint for the purposes of considering the time limit.

100.	We conclude that the Tribunal did not err in law in rejecting the appellant’s arguments under section 68(7)(b).

(ii) 	The discretion to extend time.

101.	The appellant submits that in refusing to extend time the Tribunal failed to take into account relevant evidence. There were in fact compelling reasons for her delay which they did not consider. She had been suspended from her employment when on sick leave, had been subject to an investigation by auditors followed by a capability procedure and was then off work, certified sick with stress and depression for which she received medication. She was off work for a considerable time. There was medical evidence before the Court from Dr John Challenor in a report dated 7th August 1998 and from Mr Lightbown in a report dated 19th August 1998. Both these reports were before the Tribunal, and both showed that she was suffering from clinical depression and anxiety over a number of years due to her employment difficulties. Dr Challenor’s report showed that she was suffering badly from anxiety panic attacks and depression in 1998 and that gave a cogent and compelling explanation, it is submitted, of her health as at August 1996.

102.	The appellant said in evidence that she was “just trying to survive” and that was relevant evidence which should have been taken into account. She was therefore obviously seriously stressed from her work but the Tribunal did not consider this. Furthermore the Tribunal did not consider the question of prejudice to the parties. They simply did not weigh this at all even though in accordance with the principles in DPP -v- Marshall the central issue to be decided in the exercise of discretion in a case such as this is whether or not there can still be a fair trial. The appellant submits that the respondent, who had investigated the matter by then, did not allege that they had suffered prejudice, and the Tribunal were able to hold a detailed hearing and uphold some of the complaints and dismiss others.

103.	The respondent submits that the Employment Appeal Tribunal should be very slow to interfere with the Tribunal’s exercise of its discretion. The phrase “all the circumstances of the case” under section 68(6) refers to acts relevant to the application to extend time and not facts relevant to the substantive merits of the complaint. Hutchinson -v- Westward Television Limited (1977) IRLR 69. The appellant did not put forward any reason in evidence for her delay, nor did anyone else. The Tribunal could not infer that health was the cause of the delay, as the appellant had been off work through stress having recently been suspended when she submitted her first originating application in December 1995. Nor did her health stop her from going through the capability process between the 8th February 1996 and the 26th June 1996. Nor did it stop her from appealing the capability procedure. In these circumstances it cannot be said to have been wrong for the Tribunal to find that the delay was not caused by stress the respondent submits.

104.	The respondent further submits, as the Tribunal found, that the appellant had the able assistance of Mr Rogan together with advice from the Association of Black Probation Officers. Whilst it is true to say that the Tribunal did not consider prejudice, which is a useful way of asking whether it is just and equitable in all the circumstances to extend time, they did, the respondent submits, look at all the circumstances as set out in paragraph 20 and 21 of their decision and hence followed the statute. In Owusu the Employment Appeal Tribunal found that it was sufficient for a Tribunal simply to state that it would not be just and equitable for them to hear the matter on the merits. It would have been better if they had given more detailed reasons but those were sufficient.

105.	We find that the Tribunal did consider whether to extend time under section 68(6). They were therefore obliged to consider all the circumstances of the case. They stated in their decision that no evidence whatsoever had been put forward as to the reason for the delay in lodging the application until September 1996, which no doubt is correct, but they did have before them a substantial body of evidence from the appellant herself stating that she was severely stressed, suffering from depression, just trying to survive, and that she underwent the capability procedure between February and June 1996.

106.	The medical evidence indicated that the appellant was off work with stress, certified by her GP in November and December 1995 and by June 1996 was certified as suffering from depression. Whilst neither the report from Dr Challenor nor Mr Lightbown deal expressly with the reasons for the delay in lodging the originating application, their evidence supports the appellant’s evidence that she was suffering from stress and or depression from about November 1995 onwards. The Tribunal did not take into account and indeed make no mention of the evidence of either Dr Challenor or Mr Lightbown.

107	The appellant’s poor health was in our view a factor which in considering all the circumstances the Tribunal ought to have taken into account. It was clearly a relevant factor in the exercise of discretion. They should have considered whether it played a part in the delay even though ill-health had not prevented the Claimant from issuing her first application in December 1995. We conclude that the failure to take into account the appellant’s evidence as to her health from the end of 1995 to September 1996, together with the medical evidence was a serious omission by the Tribunal in considering the exercise of discretion.

108.	The Tribunal should also have considered the fact that the Claimant withdrew her December 1995 application on the 11th February 1996 shortly after she had  commenced the capability procedure. Her preparedness to put aside her claim whilst seeking to prove that she was able to return to work by undergoing the capability procedure was another factor which should have been taken into account by the Tribunal but was not. The Tribunal should also have taken into account the fact that the appellant was undergoing the capability procedure between February and June 1996, during which time it was very unlikely that she would have put in a further claim, having previously withdrawn her 1995 claim shortly after commencing the capability procedure.

109.	We are also of the view that the Tribunal should have considered whether or not a fair trial could still take place. They should have considered the fact that they had conducted the hearing, and made detailed findings on the basis of the evidence of numerous witnesses. The respondent did not contend that they had suffered prejudice. It did not appear in these circumstances that the evidence to be called before the Tribunal was likely to be less cogent than if no delay had occurred in the filing of the originating application. The question of whether or not a fair trial could take place was a matter which should have been taken into account by the Tribunal and was not.

110.	We are conscious of the fact that the Employment Appeal Tribunal should not interfere with the exercise of the Tribunal’s discretion unless it can be shown that they demonstrably took a wrong approach in the matter or that they took account of facts which they ought not to have done or that failed to take into account facts which they should have done. On the facts of the present case we consider that the Tribunal should have taken account of the appellant’s health, the fact that there was a capability procedure between February and June of 1996 and whether or not the delay prejudiced a fair hearing. Their failure to take into account these factors in our view indicates that they did not exercise their discretion correctly.

111.	It is not appropriate in our judgment in the circumstances of this case to ask the Tribunal to reconsider the exercise of its discretion. We consider that we are able to undertake that task on the basis of the information before us. Having taken into account those factors which the Tribunal should have, but did not take into account, we conclude that it would be just and equitable to exercise the discretion under section 68(6) to extend the time so that those complaints which succeeded before the Tribunal and which are not res judicata, namely the first grievance and the suspension, are within time and go to a remedies hearing.

Conclusions.

1. 	None of the Tribunal’s findings were perverse nor did they misdirect themselves in law in dealing with any of the appellant’s complaints.

2. 	The Tribunal did not misdirect itself in rejecting the appellant’s contentions under section 68(7)(b) of the Race Relations Act 1976.

3. 	The Tribunal’s failure to exercise its discretion to extend time was based on an incorrect consideration of the relevant factors and was in all the circumstances unfair. We exercise the discretion and order that time be extended in relation to the appellant’s successful claim in relation to the first grievance and the suspension.

4. 	The matter should be remitted to a Tribunal for a remedies hearing solely in relation to the findings of unlawful discrimination in respect of the first grievance and the suspension.