Mohammed & Anor v Gillette Group Ltd

An employment tribunal’s decision whether to extend the statutory time limit for a discrimination claim is discretionary. An appellate court should intervene only where the discretion was plainly wrong in law or wholly perverse.

Where a claimant expressly concedes before the tribunal that he is not an employee, the tribunal may proceed on that agreed basis. It need not later determine an alternative employment-status argument raised on appeal. Failure to investigate that alternative is not an error of law, and a non-employee has no entitlement to redundancy payments.

Two agency workers brought race discrimination claims against their former workplace after it closed. They also sought redundancy payments, arguing on appeal that an implied contract made them direct employees. The Employment Tribunal found that employee status had been expressly conceded, declined to extend the time limit for the discrimination claims, and dismissed the claims. The Employment Appeal Tribunal dismissed the appeal under rule 3(10) on 20 September 2007. The central issues were whether the tribunal had wrongly refused an extension of time and whether it had erred by failing to determine employee status.

Application refused. The renewed applications for permission to appeal were dismissed. The court also declined to extend time for the proposed appeal.

1. Discrimination claim. The alleged refusal of direct employment occurred in October 2001, while the claims were presented in June 2006. The Employment Tribunal correctly recognised the difficulty under section 68 of the Race Relations Act 1976, which imposed a three-month time limit. It considered the applicants’ delay, the substantial prejudice to the respondent, and the reasons given for the delay before refusing an extension under section 68(6). That was a discretionary decision. The Court of Appeal could intervene only if the tribunal had acted patently wrongly in law or totally perversely. No such error was shown.
2. Employment status and redundancy. The tribunal expressly recorded that it was agreed that the applicants were not employees. That concession was the agreed starting point for its decision. It was therefore unnecessary for the tribunal to investigate further whether an implied contract of employment existed. The concession was fatal to the redundancy claim, and the tribunal’s failure to determine the alternative argument was not an error of law.
3. Permission to appeal. The Employment Appeal Tribunal had correctly concluded that there was no error of law in the tribunal’s approach. The Court of Appeal agreed with the earlier refusal of permission and found no realistic prospect of a successful appeal.

• Court of Appeal (Civil Division) On 3 July 2008, the renewed applications for permission to appeal were refused: [2008] EWCA Civ 847.
• Employment Appeal Tribunal On 20 September 2007, HHJ Pugsley dismissed the appeal under rule 3(10), finding no reasonable grounds for appeal and no error of law.
• Employment Tribunal On 9 November 2006, the tribunal refused to extend time for the race discrimination claims and rejected the claims. It proceeded on the agreed basis that the applicants were not employees.