Race against time

Aniagwu v London Borough of Hackney Case 116/98 unreported

Some reprieve may be available to applicants in discrimination cases where the Originating Application is lodged out of time due to an ongoing internal appeal. The Employment Appeal Tribunal in Aniagwu v London Borough of Hackney allowed Mr Aniagwu's race discrimination case to proceed even though it was lodged outside the usual three month's time limit.

Mr Aniagwu claimed that he had been discriminated against on the grounds of his race when his grievance was dismissed by his manager. The decision was taken on 20 March 1997, but the result was only communicated to him on 26 March 1997. He subsequently lodged an internal appeal against this decision, but the Council delayed in dealing with the appeal, so eventually he decided to proceed with a Tribunal claim for race discrimination. He lodged his Originating Application on 26 June 1997.

The Employment Tribunal dismissed his case on the grounds that it was out of time, the three month time limit running from 20 March 1997. They declined to exercise their discretion to allow the late claim on the grounds that it was not just and equitable to do so.

The Employment Appeal Tribunal overturned this decision. They agreed with Mr Aniagwu's argument that the three month time limit should run from the date on which he had been notified that his grievance was rejected. The employee should be able to identify his detriment and he could only do that once he had been notified that his grievance had been dismissed. But even taking this into account, the Originating Application was still one day out of time.

Nonetheless, in the circumstances of this case, the Employment Appeal Tribunal concluded that the original Tribunal had erred in not exercising their discretion to allow the case to proceed on just and equitable grounds. The claim was only one day late, and the Respondents had not been able to demonstrate any prejudice by reason of this one day delay.

Further, the reason for the delay was that the Council had been slow in dealing with the appeal, and the applicant had been hoping that the matter would be resolved by the appeal. "This was a responsible and proper attitude for someone to take, albeit that he had an extant complaint of race discrimination. He was looking to have his grievance resolved rather than go to law."

In considering the implications of this decision, the specific facts are important: the Originating Application was only one day late, there was no evidence of prejudice suffered by the Council, they were the ones who were responsible for the delay in dealing with the internal appeal, and the reason for not lodging the claim sooner was due to Mr Aniagwu's desire to see if the matter could be resolved internally. It is not often that these circumstances apply, and indeed the basic position remains that internal appeals do not stop the clock from running. Therefore the usual method of dealing with this situation is to lodge the Originating Application and then to apply to the Tribunal to have the claim stayed pending the outcome of the appeal.

However, if an applicant is in the position of having lodged a late claim, then this case is a useful reminder to Tribunals that they must properly address the issue of whether it is just and equitable to allow the claim to proceed, and the existence of an on-going internal appeal may in fact be a factor that works in favour of the applicant.