Shand v Leicestershire County Council & Anor

A tribunal considering an issue of its own motion must ordinarily give the parties a fair opportunity to address it by submissions and, where necessary, evidence. Whether fairness required that opportunity depends on the particular circumstances. Where the issue was plainly before the tribunal, the represented party had advanced a sophisticated argument engaging with the relevant statutory discretion, and did not seek to rely on that discretion, the tribunal could decide the point on the material before it. A tribunal minded to grant an extension of time would, however, generally need to hear the other party before doing so.

Mr Shand appealed to the Court of Appeal from the Employment Appeal Tribunal, which had upheld an Employment Tribunal’s decision concerning a race-discrimination complaint. The Employment Tribunal held that allegations predating the May 1998 appeal hearing were out of time under section 68 of the Race Relations Act 1976 and declined to extend time under section 68(6). It confined the substantive case to whether the May 1998 appeal hearing itself was discriminatory.

The Employment Appeal Tribunal rejected the challenge to the refusal to extend time. Before the Court of Appeal, Mr Shand principally alleged procedural unfairness because the Employment Tribunal had raised section 68(6) of its own motion without inviting further submissions or evidence.

1. Appeal dismissed with costs. The court unanimously upheld the decisions below.
2. A party is ordinarily entitled to be heard on an issue which a court or tribunal will determine, whether the issue was raised by the tribunal itself or by another party. The principle applies to both submissions and evidence where evidence is necessary. The court referred to Hoecheong Products Co Ltd v Cargill Hong Kong Ltd [1995] 1 WLR 404.
3. Procedural fairness is assessed in the particular circumstances. The application of section 68 of the Race Relations Act 1976 was plainly before the Employment Tribunal. Mr Shand was represented by a union official whose submissions showed familiarity with the relevant issue and who advanced an argument requiring consideration of the original allegations. The representative did not apply for an extension of time or complain when the decision was announced that he had not been given an opportunity to address section 68(6).
4. In those circumstances, the Employment Tribunal did not act unfairly by considering section 68(6) of its own motion and deciding that an extension was not just and equitable on the material before it. The tribunal dealt with the issue by way of completeness, and the appeal could not succeed on procedural unfairness.
5. Conversely, if the Employment Tribunal had been minded to grant an extension under section 68(6), procedural fairness would have required it to invite submissions from the employers before doing so. That observation was expressly tied to the circumstances identified in the case.

• Court of Appeal (Civil Division): appeal from the Employment Appeal Tribunal dismissed with costs.
• Employment Appeal Tribunal: dismissed Mr Shand’s appeal from the Employment Tribunal and upheld the refusal to extend time under section 68(6) of the Race Relations Act 1976.
• Employment Tribunal: held that the earlier allegations were out of time, refused an extension of time, and confined the remaining issue to the alleged discrimination at the May 1998 appeal hearing.