Robertson v Bexley Community Centre

JurisdictionEngland & Wales
JudgeLORD JUSTICE AULD,LORD JUSTICE CHADWICK,MR JUSTICE NEWMAN
Judgment Date11 March 2003
Neutral Citation[2003] EWCA Civ 576
CourtCourt of Appeal (Civil Division)
Docket NumberA1/2002/1759
Date11 March 2003

[2003] EWCA Civ 576

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Before:

Lord Justice Auld

Lord Justice Chadwick

Mr Justice Newman

A1/2002/1759

Bexley Community Centre
(Trading as LEISURE LINK)
Appellant
and
Francis Robertson
Respondent

MISS W OUTHWAITE (instructed by CRIPPS HARRIES HALL, Seymour House, 11–13 Mount Ephraim Road, Tunbridge Wells, Kent TN1 1EG) appeared on behalf of the Appellant

MR ROBERTSON APPEARED IN PERSON

LORD JUSTICE AULD
1

This is an appeal by the Bexley Community Centre against the decision of the Employment Appeal Tribunal quashing the decision of an Employment Tribunal. By its decision the Employment Appeal Tribunal: 1) dismissed Mr Francis Robertson's claim for racial discrimination on the ground that it was outside the three months limitation period for making it, and 2) held that it would not be just and equitable to consider the complaint out of time, as provided respectively by section 68(1) and section 68(6) of the Race Relations Act 1976. The Appeal Tribunal also remitted his claim for redetermination by a differently constituted tribunal.

2

The facts giving rise to the claim and to the appeal are as follows. In early 1999 Mr Robertson, who is of black Caribbean origin, began employment with the Community Centre on a probationary basis for six months as a plant technician based at one of its three leisure centre sites. There were three other established technicians, one of whom was Mr Don Pankhurst, who was due to retire shortly. The Community Centre's intention was that Mr Pankhurst should have a part in training Mr Robertson to operate the plant at all three sites so that, on Mr Pankhurst's retirement, he could take over his duties, sharing them with the others on a permanent basis.

3

Almost from the very start of Mr Robertson's probationary employment, Mr Pankhurst allegedly subjected him to racially discriminatory treatment. In April 1999 Mr Robertson complained to the Community Centre about Mr Pankhurst's behaviour towards him. In doing so, he stated that he simply wanted Mr Pankhurst to stop that behaviour, not that he should be dismissed for it.

4

On 29th May 1999 the Community Centre convened a disciplinary hearing at which Mr Pankhurst produced a letter stating that he was sorry if his remarks had caused offence and that he would be more than happy to assist in Mr Robertson's training. In view of that apology and promise for the future, the Community Centre decided to deal with the matter by giving Mr Pankhurst a formal warning, which it did, and seemingly did with Mr Robertson's concurrence. Shortly afterwards, however, Mr Pankhurst took sick leave. He remained away from work until mid-September of that year, that is, for some three-and-a-half months.

5

The Community Centre had hoped to arrange a reconciliation meeting between Mr Robertson and Mr Pankhurst, but in view of Mr Pankhurst's long illness that had to wait. In the meantime, and in Mr Pankhurst's absence, Mr Robertson continued with his probationary employment. In the course of it there occurred a number of incidents of which he was later to complain.

6

The first was an investigation in early September 1999 by the Community Centre into an inappropriately high level of chemicals found in the teaching pool at one of the leisure centres for which Mr Robertson was then responsible. As part of that investigation, a member of the Community Centre sought to interview him. Unfortunately, at the time requested for interview, Mr Robertson himself was sick and, because the matter was unresolved, the Community Centre decided that it would be wise to suspend him from duty until he returned to work and could be interviewed. That took place on 10th September. As a result of the account given by Mr Robertson in interview, the Community Centre found him not to be culpably responsible for the high level of chemicals in the pool and took no disciplinary action against him.

7

A day or two after that, when Mr Robertson had either just returned from work from being ill or was just about to do so, the Community Centre decided that, because of the inability, through Mr Pankhurst's long illness, to complete Mr Robertson's training, his probationary period would have to be extended. It decided also to relocate him to another of its leisure centres in order to make sure that there would be no opportunity for difficulty between Mr Pankhurst and Mr Robertson when Mr Pankhurst returned, as he was about to do, from sick leave in the middle of that month and before the reconciliation meeting between them that was still planned by the Community Centre. So Mr Robertson was transferred temporarily to work at that other site until the meeting could be arranged.

8

It seems that the investigation and the interviewing of Mr Robertson about the high level of chemicals in one of the pools, the extension of his probationary period, and his temporary relocation to another of the leisure centres, led him to believe that his employer was racially discriminating against him.

9

On 23rd September 1999 Mr Robertson completed an originating application to the Employment Tribunal in which he complained about those matters and also about the earlier behaviour of Mr Pankhurst. He filed it with the Tribunal on 4th October 1999. In his application he also complained about the Community Centre's failure to deal adequately with Mr Pankhurst in the meantime in respect of that earlier behaviour.

10

On the following day, 5th October, the planned reconciliation meeting between the two men took place. But it was a dismal failure. Mr Pankhurst was racially abusive to Mr Robertson and refused to shake his hand. The Community Centre immediately set in train procedures to discipline him for that, but he pre-empted that outcome by resigning on the following day. Those events of 5th and 6th October, postdating, as they did, Mr Robertson's application to the Employment Tribunal, were not and could not be considered as part of his application. If he had wished to have them considered, he could have issued a fresh application asking the Tribunal to dispense with service and hear the complaints in both applications at the same time. But he did not do that.

11

The Tribunal, when it met to consider the complaints of Mr Robertson, considered first the merits of all of his complaints, not just those occasioned by Mr Pankhurst's behaviour in early 1999. It considered the complaints about the investigation into the abnormally high levels of chemicals in the pool, the extension of Mr Robertson's probationary period and the temporary relocation of him to another leisure centre.

12

Having heard all the evidence going to those complaints, the Tribunal reserved its decision. However, it subsequently re-opened the matter to enable the parties to address it on issues of limitation under sections 68(1) and 68(6) of the 1976 Act, with specific reference to the complaints about Mr Pankhurst's conduct. Having heard argument on those issues, it then decided that the only candidate for a finding in his favour was Mr Pankhurst's undoubtedly racially discriminatory behaviour towards him in early 1999, but that that was clearly barred under section 68(1) as having arisen more than three months before he presented his claim to the tribunal. It also decided that in the circumstances it would not be just and equitable to extend that period or to consider his claim outside it under section 68(6).

13

As to Mr Pankhurst's conduct, the tribunal found that it did not form part of a continuing act of discrimination, and that the other matters of which Mr Robertson had complained were of a wholly different nature from, and independent of, Mr Pankhurst's conduct. It found that it was not just and equitable to consider the complaint out of time, because Mr Robertson had urged the Community Centre not to dismiss Mr Pankhurst, so that a written warning was a sufficient sanction in May 1999, and because, in its view, the Community Centre had acted reasonably in issuing such a warning and proposing the reconciliation meeting. This is how the tribunal expressed that reasoning in paragraph 33 of its decision:

"We find that the Respondent acted appropriately and responsibly once the Applicant had brought the matter to its attention in April 1999. The matter was thoroughly investigated by the Respondent and the Applicant was informed by letter dated 21 April 1999 … of the steps which were being taken in relation to the matter. The letter also informed the Applicant that his postscript to his complaint had been noted, namely that the Applicant only wanted acceptance from Mr Pankhurst that they could work together. The Applicant had made it clear that he did not wish to see Mr Pankhurst dismissed and in the circumstances we do not find that the Respondent's disciplinary sanction against Mr Pankhurst involving a formal written warning amounted to unlawful racial discrimination. The Applicant himself never expressed any dissatisfaction with the disciplinary action taken against Mr Pankhurst and we do not consider that it would be just and equitable to extend the time limits in respect of the Applicant's complaint involving the behaviour towards him by Mr Pankhurst. The Applicant himself accepted that he was familiar with the Race Relations Act 1999, and at the time he made his complaint to the Respondent in April 1999 he went out of his way to be constructive and to keep the matter as low key as possible by his declared wish not to see Mr Pankhurst dismissed and by his acknowledgment that he...

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