Appeal No.	EAT/0847/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 January 2002

Before
MR COMMISSIONER HOWELL QC
MS S R CORBY
MR I EZEKIEL

MR G R POMMELL	APPELLANT

1)	BIRMINGHAM CITY COUNCIL 2) JULIA GARRETT 
3)	HOWARD WOLFENDEN	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR N LAWRENCE
(Of Counsel)
Messrs Bailey Wright & Co Solicitors
3rd Floor, Guildhall Buildings
Navigation Street
Birmingham
B2 4BT

MR COMMISSIONER HOWELL QC
1.	In this appeal which is before us today for a preliminary hearing, Mr Gilbert Roland Pommell seeks to have set aside as erroneous in a point of law the interlocutory decision of the Employment Tribunal sitting at Birmingham on 26th February 2001 limiting the proceedings before the Tribunal at an adjourned hearing they then directed, to issues they identified. The Extended Reasons for that decision on 26th February were set out in considerable detail in the statement sent to the parties on 2nd May 2001 which is at page 4-8 of the appeal file before us. 

2.	The appeal, in which Mr Lawrence has appeared on Mr Pommell’s behalf before us today with the aid of a helpful skeleton argument, is against the refusal of the Tribunal to exercise its discretion under Section 68(6) of the Race Relations Act 1976 to admit as issues in the existing proceedings, certain allegations of discrimination made by Mr Pommell against the Respondents, the Birmingham City Council and two of the managers in its Social Services Department where he has been a long standing employee. Those additional allegations, it is common ground, were only sought to be introduced into the proceedings outside the normal time limit of three months under the Race Relations Act 1976. 

3.	The proceedings themselves were brought by three Originating Applications, the first of which was presented to the Tribunal on 21st December 1998 and the other two at different dates in the year 2000. The proceedings by Mr Pommell alleged discrimination on various grounds on the part of the City Council and the two named managers in the Social Services Department where he was most recently employed as a team manager in the residential services division. 

4.	The first Originating Application referred in particular to two incidents on 4th and 9th December 1998, which were specified in the Originating Application. There is no dispute that the proceedings were quite properly directed to go ahead in relation to those and the other complaints in the three Originating Applications that had been made in time. The hearing was estimated, at the time we are concerned with, to last 5 days and had been fixed to come on for hearing in October 2001. 

5.	The decision of the Employment Tribunal under appeal to us goes in comprehensive detail through the additional complaints sought to be introduced or pursued in the proceedings. Those complaints had been scheduled in a skeleton argument by Counsel for the Respondents which was conveniently used at the Employment Tribunal hearing as a working document for the purposes of identifying the various complaints in issue. The determination of the Tribunal, as regards the complaints with which we are concerned, was that it would not exercise its discretion to admit the majority of those out of time complaints, for detailed reasons it gave in relation to them individually.

6.	Before us today Mr Lawrence conceded that the possible grounds of appeal in the Notice of Appeal before us, dated 12th June 2001, relate only to issues of whether the Tribunal erred in law in the manner in which it exercised its discretion under Section 68 to admit claims out of time. It is not, as he rightly conceded, a matter of considering whether the particular complaints referred to amount to a “continuing act” for the purposes of identifying acts of discrimination. As Mummery LJ observed in Owusu v London Fire and Civil Defence Authority [1995] IRLR 574, at paragraph 21 

“The position is that an act does not extend over a period simply because the doing of the act has continuing consequences.” 

7.	The issue we are concerned with in particular is a suggestion of constant harassment which is racially motivated, dealt with by the Tribunal in paragraph 4.3 of their Extended Reasons. Mr Lawrence accepting that the “course of action” complained of, relating to a period ending in March 1998, had ceased, the question is whether the discretion should be exercised to admit that complaint of constant harassment over a period all out of time. 

8.	Mr Lawrence referred us to four points, relating first to the complaint dealt with in paragraph 4.3 of constant harassment where the Tribunal held, after acknowledging that this was a serious allegation but taking into account that the Applicant was an intelligent person and that there had been no evidence of any impediment to prevent the Applicant from pursuing his claim, that on balance it would not be an appropriate exercise of their discretion to allow the allegations to proceed to the substantive hearing. 

9.	The Tribunal reached similar conclusions in relation to the second, third and fourth major complaints to which Mr Lawrence directed our attention. The second was that dealt with in paragraph 4.4 of the Tribunal’s Extended Reasons, which was an issue about Mr Pommell having been discriminated against in relation to taking time off in lieu. Again the Tribunal’s conclusion was that, as Mr Pommell was an intelligent man and there had been no apparent explanation for his failure to pursue matters more vigorously, the Tribunal did not believe they had any basis for exercising their discretion in his favour. 

10.	Paragraphs 6.2 and 6.3 of the Tribunal’s extended statement of reasons referred to acknowledged failures to lodge complaints by way of Originating Application or otherwise after Mr Pommell had the benefit of advice and/or representation from solicitors. The Tribunal again declined to exercise their discretion to admit the complaints dealt with in those paragraphs out of time, taking into account as a factor that the failure to lodge these complaints in time was a matter which could be taken up by the Applicant with his solicitors; the fact that there might have been some failure on their part was not a matter which should cause the Tribunal to exercise their discretion in his favour. 

11.	Again we have taken account of all the arguments which Mr Lawrence has helpfully addressed to us, but our conclusion is all of these decisions were matters of discretion for the Tribunal, and their detailed reasons, to which we have referred, show the decision not to admit these additional claims was reached on reasonable grounds. 

12.	In our judgment, in relation to the last two complaints, it is permissible for a Tribunal to take into account as a material factor that the fault, if there was a fault, appears to be on the part of lawyers and is a matter that can be taken up between the Applicant and them. It is apparent from the Tribunal’s statement of reasons that careful consideration was given to the arguments both for and against admitting these complaints out of time and their statement of reasons explains their conclusions, in our judgment, very clearly and adequately. 

13.	For those reasons we have not been satisfied that arguable grounds have been shown to warrant us directing that this appeal should go forward to a full hearing of the Employment Appeal Tribunal and we accordingly now unanimously dismiss this appeal.