London Borough of Southwark v Afolabi

An employment tribunal has a broad discretion to extend the three-month time limit for a racial discrimination complaint where that is just and equitable in all the circumstances. It need not determine the substantive complaint first or follow the checklist governing personal injury limitation. A delay approaching nine years will justify an extension only in a wholly exceptional case.

Direct discrimination may be inferred where the facts establish less favourable treatment connected with racial difference and the employer supplies no acceptable non-racial explanation. A tribunal may reach an answer which differs from either party’s formulation, provided it remains within the substance of the pleaded issue and the respondent has a fair opportunity to address the relevant evidence.

The employer appealed from an Employment Appeal Tribunal order dismissing its challenge to findings by an Employment Tribunal. The Tribunal had extended time for a complaint concerning the employee’s appointment at Grade 6 rather than Grade SO2 nearly nine years earlier. It found direct racial discrimination in that appointment and in the employer’s later handling of a Hay grading exercise.

The appeal raised three issues: whether the exceptional extension of time was lawful; whether the inference of racial discrimination in the original appointment was sustainable; and whether the grading finding concerned an unpleaded complaint or otherwise infringed natural justice.

1. Appeal dismissed. The court was unanimous on the limitation and appointment issues. Sedley and Rix LJJ formed the majority on the Hay grading issue; Peter Gibson LJ dissented on that issue.

2. The statutory question under section 68(6) of the Race Relations Act 1976 was broadly whether an extension was just and equitable in all the circumstances. A tribunal may decide that question before hearing the merits. There is no single preferred procedural course. An appellate court should not second-guess a tribunal which has appreciated the available options and their implications. The checklist in section 33(3) of the Limitation Act 1980 may be useful, but it is not a mandatory sequence for every discrimination case. The nine-year interval made the extension highly exceptional. Nevertheless, the employee had acted within three months of discovering material showing an arguable claim, while the employer had produced no evidence establishing unequal forensic prejudice.

3. The Tribunal was entitled to infer direct discrimination in the original appointment. The employee was interviewed for the higher grade despite his known lack of the qualification later said to be essential. He performed best, was recommended for the higher grade by one interviewer and was given no contemporaneous explanation based on qualification. The Tribunal rejected both the employer’s explanation and other possible explanations before inferring that race was the reason. Per Sedley LJ, this was a rounded assessment of less favourable treatment and racial difference under section 1(1)(a) of the Race Relations Act 1976, consistent with King v Great Britain-China Centre [1992] ICR 516.

4. On the grading issue, the majority held that the Tribunal had remained within the substance of the defined complaint. A claim to Grade 10 by comparison with white employees included the lesser conclusion that the relevant posts were properly Grade 9 but that the employer had treated the employee less favourably when implementing the assessment. Events through December 1999 were part of the evidential working-out of the continuing grading grievance. The employer had an opportunity to explain its conduct and suffered no procedural unfairness.

5. The finding concerning the ring-fenced promotion of one comparator was erroneous, because ring-fencing complied with the employer’s procedures. The remaining evidence concerning the delayed implementation of the employee’s Grade 9 assessment and the restoration of another comparator to Grade 10 nevertheless sustained the discrimination finding. The appeal was dismissed with assessed costs of £388.58.

1. Court of Appeal (Civil Division): The employer’s appeal was dismissed. The court unanimously upheld the extension of time and the finding concerning the original appointment. By a majority, it also upheld the Hay grading finding.

2. Employment Appeal Tribunal: The EAT dismissed the employer’s appeal on all three grounds. Permission to appeal was refused by the EAT but subsequently granted by Mummery LJ.

3. Employment Tribunal: The Tribunal extended time and found unlawful racial discrimination in the failure to appoint the employee at Grade SO2 and in his treatment during the Hay grading exercise. It rejected the separate victimisation complaint concerning the transfer of his post to an outside contractor.