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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Husain v. Avon & Somerset Police & Ors [2002] UKEAT 1404_01_1807 (18 July 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/1404_01_1807.html Cite as: [2002] UKEAT 1404_01_1807, [2002] UKEAT 1404_1_1807

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APPEARANCES

 

For the Appellant	MR A GUMBITI-ZIMUTO (of Counsel) Instructed by: Cardiff Law Centre 41/42 Clifton Street Adamstown Cardiff CH24 1LS


 


JUDGE J R REID QC

1. This is the preliminary hearing of an appeal against a Decision of an Employment Tribunal held at Cardiff on 20 September last year. By that Decision the Tribunal unanimously decided that it had no jurisdiction to hear a complaint of discrimination contrary to the Race Relations Act made by Mr Husain against the South Wales Police. I should say that the title to the Decision, and indeed to the appeal refers also to the Avon & Somerset Police and the Kent County Constabulary, but neither of those police forces are concerned with this appeal.
2. The Decision that the Tribunal reached was that it was not just and equitable to extend time for the presentation of the Applicant's Originating Application. The very brief facts, so far as this particular application is concerned, are that in May 2000 Mr Husain applied for the post of Principal Analyst with the South Wales Police Force. When that application went in, certain enquiries were made and on 31 May a Detective Constable White made a report to Detective Inspector Cotterell about Mr Husain's application. That report, it is I think accepted, was not accurate.
3. By 30 June Mr Husain had become aware that he had not been shortlisted for the post of Principal Analyst. He had also previously applied for an analyst's post with Kent Police and he subsequently applied for a post as an analyst with the Avon & Somerset Police.
4. On 10 January 2001 he was arrested by officers of the Avon & Somerset Police, questioned and had his home searched and was then bailed to return to Rumney Police Station. The basis of the questioning was a suspicion that he was attempting to obtain pecuniary advantage by deception by making false claims in his various application forms. Those allegations were subsequently dropped.
5. It was shortly after his arrest that he made his application to the Employment Tribunal against, amongst others, the South Wales Police. The Tribunal took the view that that application was out of time and that it was not just and equitable to extend time first, because as of 30 June, Mr Husain felt himself aggrieved and subject to unlawful discrimination of which he complained to his colleagues, but did nothing until after 10 January and therefore the time at which his complaint crystallised was no later than 30 June. Secondly, it would be unjust to extend time because the South Wales Police had a policy of destroying documentation such as application forms and CVs and related documents after three months.
6. The Tribunal said that although the delay itself was not particularly excessive, the explanation for not pursuing the matter properly was, in essence, simple reluctance on the part of the Applicant and that the destruction of the relevant documents would be a prejudice to the Respondent because it was their case that Mr Husain's application was the subject of attention merely because of its unusual characteristics.
7. They went on to take the view that there was serious prejudice combined with a failure to give adequate reason (as opposed to an explanation) for the delay. Therefore they did not think it right to exercise their discretion to extend the period for presentation of the Originating Application.
8. Before us, the substantial points taken by Mr Zimuto, who has appeared on behalf of Mr Husain, were that the Tribunal was in error in finding that there was prejudice and that the Tribunal were also in error in the way in which they looked at the reasons or explanations that Mr Husain gave for not having begun his proceedings any earlier.
9. So far as the first of those points is concerned, there were two sets of documents, the destruction of which appears to have exercised the Tribunal's mind. The first was those of the person to whom the job was eventually offered. So far as those documents are concerned, it seems to us there is an arguable case for saying that the Tribunal was wrong in law in thinking that any prejudice could emanate from the destruction of those documents. So far as the second set of documents is concerned, namely the documents comprising Mr Husain's application form and CV, it seems to us arguable that the Tribunal erred in law in taking the view, given the explanation being given by the Police, that there was any real prejudice flowing to the Police as opposed to the Appellant from the absence of those documents. We also had some concerns as to whether the Tribunal had properly addressed the possibility that those documents might have been recoverable from other sources. It may be that between now and a full hearing, further investigations can be made as to whether those documents could be recovered from some other source.
10. So far as the second ground is concerned, it seems to us that the Tribunal, arguably, did not address the question of whether Mr Husain had good reason for not bringing his proceedings earlier than he did, given that it was only following his arrest when he became aware of the inaccurate report by D C White that he felt that he had a basis upon which he could, realistically, mount the claim which he now seeks to mount.
11. It seems to us that that is a point, again, which is worthy of consideration on an inter partes hearing. Mr Zimuto's Skeleton Argument went on at paragraph 6 and 7 to raise two other variants on those two grounds. It seems to us that the first of those was rightly abandoned by him and the second of those, which I think it is fair to say Mr Zimuto had some difficulty in supporting in front of us, are not grounds which ought to trouble a full hearing.
12. We therefore propose to give leave for this matter to go to a full hearing on the two grounds that we have indicated and we think it would probably be helpful if the grounds of appeal were reformulated to limit the appeal in that way, within fourteen days. We will suggest this should be listed in Category B for half a day.