Khan v Royal Mail Plc

Under the Race Relations Act 1976, protection against discrimination can extend to conduct during an internal appeal after dismissal. That principle assists only where discriminatory conduct in the appeal process forms part of the claim.

An Employment Appeal Tribunal may refuse a represented party permission to raise for the first time on appeal a jurisdictional point decided below on evidence. Such a new point should be admitted only in exceptional circumstances.

Mrs Yasmin Khan was summarily dismissed by Royal Mail on 8 October 2001 and pursued internal appeals, the last of which was refused on 23 January 2002. She brought proceedings alleging race discrimination and victimisation. The employment tribunal held the claim out of time under section 68(1) of the Race Relations Act 1976 and refused an extension under section 68(6).

The Employment Appeal Tribunal dismissed her appeal. The Court of Appeal considered whether the originating application or the proceedings below had included a claim concerning discriminatory conduct during the internal appeals, so that time ran from the final appeal decision rather than dismissal.

1. Disposition. Permission to appeal was refused because there was no real prospect of showing that the employment tribunal had erred in law. The second originating application remained dismissed for want of jurisdiction.
2. The court accepted that statutory protection under the Race Relations Act 1976 could extend to discrimination or victimisation during an internal appeal after dismissal, even though the claimant had ceased to be an employee. That was the effect of Rhys-Harper v Relaxation Group plc [2003] 4 All ER 1113. The earlier decision in Adekeye v Post Office [1997] ICR 110 had been overruled. The issue, however, was whether such a claim had actually been made.
3. The originating application focused on the dismissal, alleged victimisation for earlier proceedings and pre-dismissal treatment. It contained no specific allegation of discrimination or victimisation in the internal appeals. The agreed list of issues omitted such a complaint, and the evidence did not identify discriminatory conduct in the appeal process. The argument that time ran from the final appeal decision was therefore a new point raised on appeal.
4. The Employment Appeal Tribunal was entitled, in the exercise of its discretion, to refuse a represented party permission to raise for the first time a point of law going to jurisdiction where the issue had been decided below on evidence. Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719 and Kumchyk v Derby City Council [1978] ICR 116 supported that approach. A new point should not be admitted absent exceptional circumstances, as stated in Jones v Governing Body of Burdett Coutts School [1999] ICR 38. None existed.
5. Time therefore ran from the dismissal on 8 October 2001. The application of 12 April 2002 was out of time, and the tribunal could not entertain it.

• Court of Appeal (Civil Division) refused permission to appeal on the point concerning the end of the internal appeals process: [2006] EWCA Civ 2.
• Employment Appeal Tribunal dismissed the appeal at a preliminary hearing on 30 September 2004 and refused permission to appeal.
• Employment Tribunal held that the race discrimination and victimisation claim was out of time and refused to extend time on the just and equitable ground.