Darko v Canute Distribution Ltd

A tribunal which has already determined at a preliminary hearing that it is just and equitable to extend time cannot revisit that determination at the merits hearing unless it has been set aside. A claimant need not adduce further evidence to obtain an extension already granted.

On remission, the appellate tribunal should consider the existing findings, the advantage held by the original tribunal, any properly established concern about fairness, and proportionality. An oversight capable of correction on appeal does not, without more, establish bias.

The Claimant, a black lorry driver, brought claims of direct race discrimination and harassment after a fellow employee used a racist insult. A preliminary hearing had ruled that, although the complaint was out of time, it was just and equitable to extend time.

At the full merits hearing, the Employment Tribunal found that the remarks had been made but dismissed the complaint as out of time, reasoning that the Claimant had supplied no evidence for an extension. It also made an alternative indication on remedy.

The Claimant appealed. The Respondent accepted that the time-limit issue had already been determined. The remaining issues were the proper remission tribunal and costs.

1. Appeal allowed. The full merits tribunal erred by deciding afresh whether it was just and equitable to extend time. Employment Judge Harding had already made that determination at the preliminary hearing. The Claimant was therefore not required to provide further evidence on the issue. The dismissal was set aside and substituted with a ruling that the claims of race discrimination and harassment were made out in respect of the remarks found.

2. The remedy issue was remitted to the same Employment Tribunal, so far as practicable. Applying the factors in Sinclair Roche & Temperley v Heard and Anor [2004] IRLR 763, that tribunal was best placed to deal with remedy because it had heard the evidence and made the relevant factual findings. Its findings had not been fundamentally flawed, save for the time-limit oversight.

3. The Claimant had not advanced an appeal ground of bias, unfair hearing or improper conduct. Case-management directions, adverse factual findings, and an error through oversight did not themselves establish bias. The fact that the tribunal had found for the Claimant on aspects of his case also undermined the asserted inference of hostility.

4. Under the Employment Appeal Tribunal Rules 1993, the Claimant had succeeded and could seek recovery of his appeal fees. However, his refusal to engage with the Respondent's reasonable proposal for remission to the same tribunal was unreasonable and caused avoidable expense. The appropriate order was that each party bear its own costs.

• Employment Appeal Tribunal: Appeal allowed. The dismissal of the time-barred discrimination and harassment complaint was set aside, the complaint was upheld, and remedy was remitted to the same Employment Tribunal.
• Employment Tribunal, Birmingham: Judgment sent on 25 March 2015. The tribunal found the racist remarks proved but dismissed the claims as out of time, notwithstanding an earlier preliminary ruling extending time.
• Employment Tribunal preliminary hearing: On 11 August 2014, Employment Judge Harding ruled that it was just and equitable to extend time for the identified matters.