Appeal No.	 EAT/673/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 January 2000

Before
HIS HONOUR JUDGE C SMITH QC
MR J R CROSBY
MR D A C LAMBERT

MS R DAVIES	APPELLANT

UNISON	RESPONDENTS

Transcript of Proceedings
PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	The Appellant neither present nor represented	

HIS HONOUR JUDGE SMITH QC

1.	We have had the benefit of being shown, very recently indeed, recent correspondence from the Applicant, Ms Davies.  She wrote to the Employment Appeal Tribunal on 10th January 2000 and asked that this matter of today’s application, which is her application to proceed to a full hearing of her appeal, should be adjourned for as long as a period as 3 months and she appears to rely upon the fact that she has not been well, she has had a cold, and she is concerned about the progress of another matter, one of her other claims against the Camden Training Centre, on which she says she is awaiting assistance in respect of that matter, with a view to going to the Court of Appeal in relation to that quite separate application.  Accordingly, she has asked the Employment Appeal Tribunal to postpone the hearing of the appeal against Unison, which is the matter with which we are concerned today, for at least 3 months.  The Registrar, in fact, has considered that application and directed that the matter should remain in the list for today’s hearing and we think that she was entirely right so to do and we have concluded, looking at the matter carefully, that we cannot allow this matter to be adjourned in all the circumstances, since we do not think that the grounds put forward establish a good reason for putting the matter off in the first place and secondly, for reasons we shall shortly give, we have unanimously concluded that there is no arguable ground of appeal here on the merits.  

2.	Thus having taken into account everything that was said in the papers by Ms Davies in support of her application, we reject the application that the matter should be adjourned today, and we proceed to consider the application.  It is an application by Ms Davies, who was the Applicant before the Employment Appeal Tribunal, for leave to proceed to a full hearing of an appeal against the unanimous decision of the Employment Appeal Tribunal, which was a full Tribunal, on a preliminary hearing before them, which was held at London North on 1st March 1999, and of which extended reasons were sent to the parties on 5th March 1999, whereby the Employment Tribunal held that the Applicant’s complaint of sex discrimination against Unison, the Respondent Trade Union, was out of time, having regard to the time limit contained in Section 76(1) of the Sex Discrimination Act (1975) and further the Tribunal held that it was not just and equitable to extend time.  We have, we repeat, carefully considered everything that is relevant in the notice of appeal at pages 1-4 in the bundle before us.  We have had to note with regard to the proposed grounds of appeal that, in consequence of the order of the Registrar of the Employment Appeal Tribunal dated 20th July 1999, the allegations sought to be made are based on bias and procedural irregularity against the Employment Tribunal, and seemingly the Chairman in particular, have been struck out of the notice of appeal and thus can no longer be relied upon by the Applicant in support of today’s application.  So it is with that in mind that we have considered the remaining matters in the notice of appeal.  

3.	We have reminded ourselves that the Applicant only has to show an arguable ground of appeal to proceed to a full hearing.  Much of the complaint in the notice of appeal is concerned with the refusal of the Chairman to review the Employment Tribunal’s decision, whereas we are solely concerned with the decision under appeal, and not with the refusal to review the same.  But since Ms Davies has been in person, we have obviously looked particularly at the decision itself, to make sure, to the best of our ability, that it does not contain any arguable error of law.  We have given it close consideration in that regard.  As appears from the decision of the Employment Tribunal, the Tribunal was concerned to decide whether the Appellant’s complaint of sex discrimination against the Respondent Unison was in time.  She had been dismissed from her employment with Camden Training Centre on 5th January 1998 and had received assistance from the Union in respect of that dismissal and the claim she made against Camden Training in respect of that matter.  The Employment Tribunal found as a fact that in early March 1998, Unison, by its officer Mr Coulson, had indicated to the Appellant that on the basis of such evidence as the Union Representative had seen, Unison would not be able to support her case.  The Employment Tribunal then found, in the course of its decision, that on 15th June 1998, Mr Coulson reiterated that advice to the Appellant on the telephone and the Tribunal found that the act of discrimination complained of by the Appellant centred on that telephone conversation on 15th June 1998.  This date differs slightly from the date relied upon in the IT1 where Ms Davies states

“The last and discriminatory/victimisation by my Union was on 17/6/98 I contend”

The difference is not material in our judgment and in any event, it was for the Tribunal to make a finding of fact with regard to when the alleged act of discrimination took place.  On their finding, this was the only act of discrimination because they found that this was not a case where there was any reliance upon any continuing discrimination.  

4.	In paragraph 8 of the decision, the Employment Tribunal found as a fact that the originating application against Unison was presented on 17th September 1998 and thus the application was out of time under Section 76(1) of the Sex Discrimination Act (1975), as was plainly correct on the findings of fact made by the Employment Appeal Tribunal.  In paragraph 9 the Employment Tribunal went on to consider whether it was just and equitable to consider the claim out of time in accordance with Section 76(5) of the Act.  It is very well established, in our judgment, that in deciding whether or not to extend the time limit in any given case, the Employment Tribunal has a very wide and unfettered discretion and its decision can only be challenged if it takes a demonstrably wrong approach or reaches a decision that was so perverse that no reasonable Tribunal could have reached such a conclusion on the evidence, see for example Hutchinson –v- Westwood Television Ltd (1977) ICR 279.  It is measured against that legal principle that we have to consider the decision of the Employment Tribunal.  

5.	The Employment Tribunal found that there was no good reason for the delay and they further found that between June and September 1998 the Appellant had had access to bodies who are associated with the provision of specialist advice.  They found as a fact that the Appellant knew of the 3 month time limit and that there was no excuse for the complaint being presented out of time.  Finally, they noted that the original decision of the Union not to support the Appellant’s case had been made as long ago as March 1998.  They also observed :-

“We are impressed by the fact that she has experienced difficulty in putting together the necessary particulars to support her case”, 

Thus to an extent the Employment Tribunal were there noting that there appeared to be a lack of particularised merit in the claim being made against Unison which was no doubt another factor which they took into account.  It was in all those circumstances that they exercised their discretion not to extend time.  

6.	In our judgment there was ample material before the Employment Tribunal to enable them properly, fairly and reasonably to exercise their discretion in the manner they did as an industrial jury.  It must be a matter for the Tribunal at the end of the day to decide whether it is just and equitable for an extension of time to be allowed.  In all the circumstances of this particular case, they decided that they could not extend time.  In our judgment their approach reveals no arguable error of law either by way of a demonstrably wrong approach or by way of any perversity in the conclusion they reached.  For those reasons we have concluded that this application will have to be dismissed.