Employment Cases Update

London Borough of Waltham Forest v Martin UKEAT/0069/11/SM

Date published: 07/08/2011

Appeals against the refusal by the ET to strike out the claimant’s claim of race discrimination and against a ruling that it was just and equitable to hear the claimant’s second claim which had been brought out of time. Both appeals allowed and the just and equitable issue remitted to the Tribunal.

The claimant, a black man, was employed as a part-time bus driver by the local authority as well as being a local resident. It was decided that part-timers, who did not earn bonuses unlike full-timers, should in fact be granted a bonus, including a bonus going back several years. The claimant, who was also receiving state benefits, did not declare the back pay or the increase in future wages. The local authority brought criminal proceedings in its capacity as a prosecuting authority against the claimant in his capacity as local resident, for benefit fraud. In its capacity as his employer, the local authority gave the claimant in his capacity as an employee a final written warning lasting for 2 years for making false claims for benefit. The claimant claimed that the decision to prosecute him, rather than imposing an administrative penalty instead, and the length of his written warning, amounted to acts of race discrimination. The ET ruled that it had jurisdiction to hear the claims of race discrimination despite the respondent arguing that the ET only had jurisdiction over claims of race discrimination in the employment field, and the respondent's decision to prosecute and not to impose an administrative penalty instead, even if discriminatory, were not in the employment field. He was being prosecuted as a local resident who was alleged to have failed to declare his true income, not as an employee.

The EAT considered the case of Ministry of Defence v DeBique, which held that it was not necessary for an employee to prove that a discriminatory PCP had to have been applied to the claimant by the employer acting in its capacity as employer. However, this did not mean that because the discriminatory provision, criterion or practice does not have to be applied by the employer in its capacity as employer, therefore the detriment to which the employee was subjected as a result of the application of the discriminatory provision, criterion or practice does not have to have been in the employment field. In the opinion of the EAT the fact that the decision to prosecute may have consequences for the employee's future employment did not bring the decision to prosecute within the employment field. The ET decision to allow the claim relating to the length of the written warning was remitted to the EJ for him to decide, in the light of the changed circumstances, whether it would be just and equitable for the Tribunal to consider the claim.

__________________

Appeal No. UKEAT/0069/11/SM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 June 2011

Before

THE HONOURABLE MR JUSTICE KEITH (SITTING ALONE)

LONDON BOROUGH OF WALTHAM FOREST (APPELLANT)

MR E MARTIN (RESPONDENT)

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant
MR ROBERT MORETTO (of Counsel)

Instructed by:
London Borough of Waltham Forest
Waltham Forest Town Hall
Forest Road
Walthamstow
London
E17 4JF

For the Respondent
MR MIKE JERVIS (Representative)

SUMMARY

RACE DISCRIMINATION – Discrimination by other bodies

The Claimant was employed by the local authority as well as being a local resident. In its capacity as a prosecuting authority, the local authority brought criminal proceedings against the Claimant in his capacity as a local resident over his claims for housing benefit and council tax benefit. In its capacity as his employer, the local authority gave the Claimant in his capacity as an employee a final written warning to last for 2 years for making false claims for benefit. The Claimant alleged that the decision to prosecute him (and not to impose an administrative penalty instead) and the length of his warning amounted to acts of race discrimination. It was held that the alleged acts of discrimination to prosecute him (and not to impose an administrative penalty instead) could not amount to acts of discrimination in the employment field, and that the Employment Tribunal had no jurisdiction to consider them.

THE HONOURABLE MR JUSTICE KEITH

Introduction

1. The Claimant, Easton Martin, is black. He was employed at part time by the Respondent, the London Borough of Waltham Forest, as a bus driver in 1997. He was given 12 weeks' notice of his dismissal on 15 January 2010. On 11 April 2010 Mr Martin presented a claim to the Employment Tribunal. It included complaints of unfair dismissal, breach of contract, sex discrimination, disability discrimination and race discrimination. The complaint of disability discrimination was subsequently withdrawn, and on 3 June 2010 Mr Martin was reinstated in his employment following an internal appeal. A pre hearing review of his claims took place at the East London hearing centre on 3 November 2010. Following that hearing, Regional Employment Judge Lamb ordered that the complaints of breach of contract and sex discrimination, as well as the complaints of unfair dismissal, be struck out.

2. Mr Martin's sole remaining complaint, of race discrimination, was refined at that hearing, and three acts of discrimination were identified. The council argued that two of them could not amount in law to discrimination of the kind that the Tribunal had jurisdiction to consider, and it argued that those allegations within Mr Martin's complaints of race discrimination should be struck out. The Employment Judge refused to strike them out, and although he held that the complaint in respect of all three acts of race discrimination had not been presented within the relevant time limits, he ruled pursuant to section 68(6) of the Race Relations Act 1976 that it was nevertheless just and equitable for the Tribunal to consider it. The effect of that was that Mr Martin's complaints of race discrimination would proceed to a full hearing on its merits in respect of all the acts of discrimination which Mr Martin had identified. The council now appeals against the Employment's Judge's refusal to strike out the parts of the complaints of race discrimination which it claims should have been struck out, as well as the Employment Judge's ruling that it was just and equitable for Mr Martin's complaints of race discrimination to be considered by the Tribunal. There is no cross appeal by Mr Martin.

The facts

3. Mr Martin lived in Waltham Forest. In his capacity as a local resident rather than as an employee of the council he was receiving housing benefit and council tax benefit. There came a time when he was investigated by the council for claiming benefits to which he was not entitled. The allegation arose out of an historical anomaly. Part time bus drivers had not been paid weekly bonuses, unlike their full time counterparts. That was rectified in August 2003; part time bus drivers were awarded a pay settlement which resulted in them receiving bonuses backdated to August 2000 and being entitled to bonuses in the future. The backdated bonuses were paid to Mr Martin in August or September 2003 and from then on he received bonuses as and when they became payable. The allegation for which Mr Martin was being investigated was that he did not declare to those administering the benefits either the backdated bonuses which he had received or the increase in his income in the future. Following this investigation it was decided that Mr Martin should be prosecuted for benefit fraud. That decision, and the subsequent instigation and pursuit of the criminal proceedings against him, constituted the first act of race discrimination alleged by Mr Martin. The allegation is that the person who made that decision was Paul Verdin, the Manager of Internal Investigations within the council's Corporate Audit and Anti Fraud Team (which I shall refer to as the CAAFT), and that he did that because Mr Martin was black.

4. The second act of race discrimination of which Mr Martin complains is linked to it. The council had the power to impose an administrative penalty on Mr Martin instead of prosecuting him; it decided to prosecute him instead. That decision is also alleged to have been made by Mr Verdin, and it is claimed that he made that decision as well because Mr Martin was black. It is unclear from the papers that I have been provided with when it is alleged that these decisions were made, but they are likely to have been made shortly after 2 March 2006, because that was when Mr Verdin wrote to Mr Martin informing him that the CAAFT would shortly be passing their investigation papers to the council's Department of Legal Services to consider prosecution action; and before 18 September 2006, because that was when Mr Martin was summonsed to appear before the Magistrates' Court on 29 September 2006. That rather suggests that the decisions to prosecute Mr Martin and not to impose an administrative penalty instead were made by someone other than Mr Verdin. That is a matter for evidence at the full hearing if these complaints of race discrimination survive the challenge to the Employment Judge's decision. If they do, it may be that the complaints will have to be refined further to allege that the discriminatory acts consist of Mr Verdin recommending that Mr Martin be prosecuted instead of an administrative penalty being imposed.

5. Indeed, I note from paragraph 13 of the Reasons for his decision that the Employment Judge proceeded on the basis that the CAAFT prepared what he described as an investigation report. Although I have not been provided with a copy of it, the Employment Judge said that the investigating officer had been Neil Casey and that the report was described as having been reviewed by Mr Verdin. Since that report concluded, according to the Employment Judge, that there should be a prosecution of Mr Martin, that rather suggests that Mr Verdin's role was recommending that Mr Martin be prosecuted rather than deciding that he should be.

6. On the other hand, Mr Mike Jervis, a friend of Mr Martin, who has represented Mr Martin today with great skill, maintains that the ultimate decision to prosecute lay with the CAAFT, because the function of the council's Department of Legal Services was merely to advise whether there was an arguable legal case for prosecution. Following that, I was told by Mr Robert Moretto, for the council, that that was correct, and the allegation therefore is that Mr Verdin played a part in that decision.

7. The investigation report is relevant for another reason. According to the Employment Judge, the report stated that, although its objectives were to establish whether Mr Martin had declared relevant changes to his income and whether he had committed any offences, it also stated that another of its objectives was to establish if there was a case to answer under the council's code of conduct, which is agreed to be a reference to the code of conduct for the council's workforce. The Employment Judge went on to say that the reports concluded that disciplinary proceedings against Mr Martin should be considered. In fact disciplinary proceedings were commenced against him, and it was concluded that he had failed to disclose both the backdated bonuses and the increase in his income.

8. In those disciplinary proceedings Mr Martin had argued that he had not been aware that his backdated bonuses had affected the benefits he previously received, and that since the council, as his employer, knew about the increase in his income, he had assumed that the council would have adjusted his benefits accordingly. When it came to the increase in his income the Employment Judge expressed the view that it would have been reasonable for Mr Martin to have thought what he claimed he did. That presupposed that it was reasonable for Mr Martin to assume that the staff who administered the benefits knew what the staff who were administering the council's payroll were doing, especially in the case of someone who was both an employee of the council and a local resident. That may be questionable, but that was for the council to decide in the disciplinary proceedings, and the outcome of those proceedings was that Mr Martin was issued with a final written warning to remain on his personal file for two years with effect from 22 March 2007. It had been accepted that Mr Martin may not necessarily have set out to be dishonest, but when the opportunity presented itself Mr Martin had decided not to declare the increase in his income. Mr Martin appealed his final written warning, but he was notified on 4 June 2007 that his appeal had been dismissed. The length of the final written warning is the third act of race discrimination relied upon by Mr Martin. His case is that other people had such a warning left on their personal file for only one year, and the reason why his was as long as it was was because he was black.

9. Mr Martin was committed to Snaresbrook Crown Court for trial. His trial was due to start on 12 July 2007. It was adjourned for a week or so because the council, in its capacity as the prosecuting authority, agreed to offer, and Mr Martin agreed to accept, an administrative penalty instead. However, the amount of the administrative penalty could not be agreed, because Mr Martin disputed the council's assessment of the amounts of the overpayments of benefit he had received. Accordingly, the criminal trial was adjourned pending Mr Martin's appeal against that assessment. On 17 March 2008 his appeal against the assessment was dismissed by the Appeal Tribunal.

10. We can now fast forward in time. In common with other members of the council's workforce Mr Martin was required to have a clean bill of health every three years from the Criminal Records Bureau. Mr Martin's previous check expired in 5 October 2009, and so Mr Martin was required to complete the application form authorising the Criminal Records Bureau to disclose any information about him to the council. Mr Martin duly completed that application form. Unfortunately, when the Criminal Records Bureau processed the application and checked Mr Martin's details on the Police National Computer, the record of a person with similar identity details with those of Mr Martin was found. It is not clear why that was. It may have had something to do with the fact that the council, in its capacity as the prosecuting authority in the criminal proceedings, had sent Mr Martin the summonses which had originally required him to appear at the Magistrates' Court, but which had incorrectly referred to him as "Martin Easton", not "Easton Martin". Those summonses were amended when the error was pointed out to the council, but, whatever the reason was for the information which the Police National Computer came up with, the Criminal Records Bureau wanted Mr Martin's fingerprints so that he could be eliminated as the person to whom the entry on the Police National Computer referred to. Mr Martin was asked to provide them; he refused to do so, on the ground that the request breached his human rights. That resulted in an impasse; the absence of a valid authorisation from the Criminal Records Bureau prevented Mr Martin from carrying out his duties as a bus driver, and disciplinary proceedings were commenced against him.

11. In the meantime Mr Martin had appealed to the Upper Tribunal against the dismissal of his appeal over the assessment of the overpayments made to him. That appeal was also heard in October 2009. The Upper Tribunal's decision was signed on 26 November 2009, and it allowed that part of Mr Martin's appeal relating to the assessment of the backdated bonuses. It held that the backdated bonuses that had been paid to him had been payments of capital not income, and they should not have been taken into account in the assessment. However, permission to appeal had not been given in respect of the assessment of the overpayments, which consisted of bonuses paid to Mr Martin as income after August 2003, and so the appeal was remitted to the council for the overpayments to be reassessed in the light of the Upper Tribunal's Judgment. In the light of that Judgment the council decided to offer no evidence in respect of the criminal proceedings, and when the case was listed again on 8 January 2010 I assume that verdicts of not guilty were entered, because that is what normally happens when the prosecution offers no evidence.

12. I turn finally to the disciplinary proceedings which were commenced over Mr Martin's unwillingness to provide his fingerprints. A disciplinary hearing took place on 13 January 2010 following which he was dismissed with 12 weeks' notice, because the council could not continue to employ him in his current post without a Criminal Records Bureau check. He appealed against that decision, and that appeal was eventually allowed. He was reinstated on condition that his duties did not require him to drive or have any personal contact with service users.

The parties' cases and the law

13. I deal first with the council's contention that the decisions to prosecute Mr Martin for benefit fraud and not to impose an administrative penalty instead could not amount in law to acts of discrimination which the Tribunal had jurisdiction to consider. The Employment Judge described the argument as being to the effect that the council had been wearing more than one hat when it came to the acts of discrimination identified by Mr Martin. It had been acting as the prosecuting authority when pursuing criminal proceedings in respect of the decision to prosecute Mr Martin and not to impose an administrative penalty instead, and acting as employer when it came to the decision to give Mr Martin a final written warning. The Employment Judge said that he was being asked to disregard the former. He did not state the basis upon which he was being asked to disregard the former, but he declined to do so since he thought that:

"The decisions to prosecute and the decisions to discipline were inextricably linked. Connecting all three of them was the decision that there had been an overpayment of benefits to Mr Martin and that he was not entitled to those benefits, which he should have declared."

14. Mr Moretto did not represent the council before the Employment Judge, and it may be that the argument has been developed today in a way that it was not before the Employment Judge. In a nutshell, an Employment Tribunal only has jurisdiction over claims of race discrimination under part II of the Act; part II applies to discrimination in the employment field, and the council's decisions to prosecute Mr Martin and not to impose an administrative penalty instead, even if discriminatory, were, so it is argued, not in the employment field. He was being prosecuted as a local resident who was alleged to have failed to declare his true income, not as an employee. Any claim that the decisions to prosecute him and not to impose an administrative penalty instead were discriminatory had to be brought in a County Court under part III of the Act, which applied to discrimination in other fields. The fact that there was no reference in the Employment Judge's Reasons to the difference between parts II and III of the Act rather suggests the argument was not developed before him in that way, but, since the argument goes to the jurisdiction of the Tribunal, the fact that the argument may not have been developed as it is now does not mean that it cannot be developed in this way on the appeal.

15. The starting point has to be section 54 of the Act, because that is the section that gives Employment Tribunals jurisdiction over claims of race discrimination. Section 54(1) provides, so far as is material:

"A complaint by any person ('the complainant') that another person ('the respondent')—

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part II [...]

may be presented to an industrial tribunal."

16. There is no other provision in the Act conferring jurisdiction on Employment Tribunals over claims of race discrimination, and its jurisdiction must therefore be regarded as limited to the claims of race discrimination that are rendered unlawful by part II and the other sections referred to. The other sections referred to are not material for present purposes. It follows that Mr Moretto is correct when he argues that the Tribunal did not have jurisdiction over those aspects of Mr Martin's claim for race discrimination that cannot be said to have been acts of discrimination in the employment field.

17. Section 4(2) of the Act provides:

"It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee—

(a) in the terms of employment which he affords him; or

(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

(c) by dismissing him, or subjecting him to any other detriment."

18. Section 4(2) is within part II of the Act, but it cannot be argued that the phrase "any other detriment" is wide enough to refer to detriment outside the employment field, because in Shamoon v Chief Constable of Royal Ulster Constabulary [2003] ICR 337 it was held that the words "any other detriment" in the equivalent legislation in Northern Ireland, which has identical language, relates to detriment in the employment field. As Lord Hope said at paragraph 34:

"The statutory cause of action which the appellant has invoked in this case is discrimination in the field of employment. So the first requirement, if the disadvantage is to qualify as a 'detriment' within the meaning of article 8(2)(b), is that it has arisen in that field. The various acts and omissions mentioned in article 8(2)(a) are all of that character and so are the words 'by dismissing her' in section 8(2)(b). The word 'detriment' draws this limitation on its broad and ordinary meaning from its context and from the other words with which it is associated. [...] As May LJ put it in De Souza v Automobile Association [1986] ICR 514, 522G, the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work."

19. Has this principle been undermined by the recent case of Ministry of Defence v DeBique [2009] All ER (D) 258? The facts of the case are relatively complicated, but it was a case in which the employee claimed that she had been subjected to indirect discrimination on the ground of her sex. The Employment Appeal Tribunal, Cox J presiding, held at paragraph 135 that it was not necessary for an employee to prove that a discriminatory "provision, criterion or practice," to use the words of section 1(2)(b) of the Sex Discrimination Act 1975, had to have been applied to her by the employer acting in its capacity as employer. It should be noted that this was an aside, because the Employment Appeal Tribunal found at paragraph 138 that the discriminatory provision, criterion or practice had been applied to the Claimant in its capacity as her employer. But the important point for present purposes is that DeBique is not authority for the proposition that because the discriminatory provision, criterion or practice does not have to be applied by the employer in its capacity as employer, therefore the detriment to which the employee was subjected as a result of the application of the discriminatory provision, criterion or practice does not have to have been in the employment field. That issue simply did not arise in DeBique because there could not have been any dispute about whether the Claimant had been subjected to a detriment in the employment field; she was unable to work because her childcare responsibilities prevented her from complying with the requirement that she had to be available for duty 24 hours a day, 7 days a week.

20. The provisions in part II of the Act have to be contrasted with the provisions in part III of the Act. Sections 57(1) and (2) of the Act provide, so far as is material:

"57. (1) A claim by any person ('the claimant') that another person ('the respondent')—

(a) has committed an act of discrimination against the claimant which is unlawful by virtue of Part III [...]

may be made the subject of civil proceedings in like manner as any other claim in tort [...].

(2) Proceedings under subsection (1)—

(a) shall, in England and Wales, be brought only in a designated county court [...]."

21. Part III of the Act is headed "Discrimination in Other Fields," to contrast it with "Discrimination in the Employment Field," to which part II relates. Part III includes section 19B(1), which provides, "it is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination." A particular field to which part III expressly applies is criminal prosecution. That is because section 57(4), which is in the part of the Act headed "Enforcement of Part III," limits the remedies which are available when the alleged discriminatory act was done by a person in carrying out functions as a public prosecutor and which is unlawful by virtue of section 19B. It follows that an allegedly discriminatory decision to prosecute someone for criminal offences is outside the employment field, and within the field of allegedly discriminatory decisions made by public authorities, for which the remedy is a claim in the County Court.

22. Subject to the arguments advanced today by Mr Jervis, that must apply in my opinion even in those cases where the public authority happens to be the employee of the person against whom the prosecution is to be brought. If it were otherwise it would mean that employees of those public authorities who have prosecutorial powers would have additional rights over other members of the public who are prosecuted, because they, unlike the latter, would be able to pursue claims of discrimination in the Employment Tribunal. It would also mean that employees of those public authorities, which have other powers (for example, local planning authorities), would have additional rights over other members of the public who have their planning applications refused, because they, unlike the latter, would be able to bring claims of discrimination in connection with the processing of their planning applications in the Employment Tribunal. Parliament could not have intended that to happen.

23. I acknowledge of course that if an employee of an employer that is also a prosecuting authority is prosecuted by that authority the prosecution might have an indirect impact on his employment, because the fact of his prosecution is more likely to come to the attention of his line managers than if his employer was not the prosecuting authority, and that may result in action being taken against the employee. In the present case it resulted in disciplinary proceedings being brought against Mr Martin. It indirectly caused Mr Martin not to get a clean bill of health from the Criminal Records Bureau, and it was that which ultimately led to Mr Martin's dismissal, even though he was subsequently reinstated. That was one of the points powerfully made today by Mr Jervis, but in my opinion the fact that the decision to prosecute may have consequences for the employee's future employment does not bring the decision to prosecute within the employment field.

24. Two other points were made by Mr Jervis. First, the officers in the CAAFT were out to get Mr Martin, and Mr Jervis spent some time this morning attempting to show that their abuse of power, as he characterises it, was committed in the course of the employment, and they were liable to be disciplined for that abuse of power by the same disciplinary process as Mr Martin could be disciplined by as an employee. I do not regard that as relevant to whether the decision to prosecute Mr Martin and not to impose an administrative penalty instead were within the employment field. It is relevant only to whether Mr Martin could bring his claim against the council rather than against Mr Verdin by virtue of section 32(1) of the Act, which creates in effect vicarious liability for the statutory tort of race discrimination.

25. Secondly, Mr Jervis made the point that the difference between Mr Martin's income after August 2003 and the income which he had declared for the purpose of his entitlement to benefits only emerged when it was picked up by the computer at the National Audit Office, to which the council had sent details of Mr Martin's income (because as an employer it provided details of the sums paid to its workforce) and Mr Martin's benefits, because as a local authority it provided details of the benefits paid to local residents. The council was informed of that discrepancy, and that was how the CAAFT came to investigate the benefits that Mr Martin had received. The discrepancy would not have emerged had Mr Martin not been on the council's employment payroll. In my opinion the fact, if it be the case, that the information that caused the council to decide to prosecute Mr Martin was only acquired because Mr Martin was its employee does not bring the decision to prosecute him within the employment field.

Conclusions

26. For these reasons, I have concluded that the decisions to prosecute Mr Martin and not to impose an administrative penalty instead were not capable of amounting to acts of discrimination over which the Employment Tribunal had jurisdiction. In the circumstances, it is unnecessary for me to consider an additional argument advanced by Mr Moretto, and not argued before the Employment Judge or mentioned in the counsel's Notice of Appeal, that the decision not to impose an administrative penalty instead of prosecuting Mr Martin was expressly excluded from section 4(2) of the Act by section 4(4).

27. The other issue which the council's appeal raises relates to the Employment Judge's decision that it was just and equitable for the Tribunal to consider Mr Martin's complaint of race discrimination even though it had been presented out of time. The Employment Judge's decision has now to be considered in the light of my conclusion that the only act of race discrimination that Mr Martin alleges over which the Tribunal had jurisdiction was the complaint that the final written warning which Mr Martin was given on 22 March 2007 was for two years rather than one. However, it is simply not possible to tell whether the Employment Judge were to have considered it just and equitable for Mr Martin's complaint of race discrimination to be considered if the only feature of his complaint was the fact that the warning was too long. That is because, in concluding that it was just and equitable for Mr Martin's complaint to be considered, the Employment Judge focussed exclusively on the acts of discrimination constituted by the decisions to prosecute him and not to impose an administrative penalty instead, and the fact that they were inextricably linked with the decision to discipline Mr Martin. Take away the acts of discrimination over which the Tribunal had no jurisdiction and there was nothing left for the disciplinary proceedings in 2007 to be linked with. So with the foundation for the Employment Judge's decision having been removed, the Employment Judge's decision cannot stand, and has to be reconsidered.

28. Having said that, there were three features of the case that the Employment Judge regarded as highly relevant to whether it was just and equitable for Mr Martin's complaint of race discrimination to be considered, but which I regard as highly questionable. First, the Employment Judge plainly had in mind section 68(7)(b) of the Act, which provides that, "any act extending over a period shall be treated as done at the end of that period." He thought that the decision to prosecute Mr Martin was a continuing act which continued up to the time when the prosecution came to an end (that is, on 8 January 2010), and similarly that the decision not to impose an administrative penalty instead was a continuing act which ended when the alternative was in fact offered. If by that the Employment Judge meant an administrative penalty calculated in accordance with the Judgment of the Upper Tribunal, no such administrative penalty was offered to Mr Martin.

29. Had the Employment Judge have appreciated that he would probably have found that the decision not to impose an administrative penalty continued until the outcome of the criminal proceedings made that no longer an option; in other words, also 8 January 2010. Since the ET1 was presented on 11 April 2010, which was only a few days after the expiry of the time limit for presenting the complaint of race discrimination on the Employment Judge's approach, it would have been much easier for the Employment Judge to find that it was just and equitable for the Tribunal to consider the complaint than if the delay in presenting it had been the period of almost two and a half years, from 4 September 2007 (that is, three months after Mr Martin was told that his appeal against the final written warning had been dismissed) to 11 April 2010. After all, the extent of the delay is always going to be a relevant factor when considering whether the time for doing something should be extended (see, for example, British Coal Corporation v Keeble [1997] IRLR 336, paragraph 8). What makes me question the Employment Judge's approach is that, for the reasons set out by Mr Moretto in paragraphs 32 44 of his skeleton argument, I have very considerable reservations about whether it really could be said that the decisions to prosecute Mr Martin and not to impose an administrative penalty instead could be said to be acts extending over a period; all the more so if Mr Martin's real case had been that the acts of discrimination had consisted of the recommendations which Mr Verdin had originally made.

30. Secondly, the Employment Judge thought that it would be unreasonable to expect Mr Martin to have commenced proceedings in the Tribunal until he had the Judgment of the Upper Tribunal on which he could rely, especially as the Judgment of the Upper Tribunal showed that the council's belief that Mr Martin had been overpaid benefits was wrong. That too is a questionable approach, for the reasons set out by Mr Moretto in paragraph 47.1 of his skeleton argument; but in any event the council's belief that overpayments had been made to Mr Martin was only partly wrong. The Judgment of the Upper Tribunal established that Mr Martin had not been overpaid benefits in the years prior to August 2003 but the decision of the Appeal Tribunal that he had been overpaid benefit in the years after that stood. It does not look as if the Employment Judge was alive to that; had he been, his approach to the question of what justice and equity required might have been rather different.

31. Thirdly, the Employment Judge said in paragraph 36 of his Reasons that:

"There is a strong public interest in ensuring that allegations of discrimination on the grounds of race, especially by a public sector employer, are properly considered."

32. I do not suppose that anyone would disagree with that, but it is questionable whether that can count as a relevant factor when considering whether justice and equity required Mr Martin's complaint of race discrimination to be considered. I say that for the reason set out in paragraph 47.2 of Mr Moretto's skeleton argument.

33. In the light of all this it is necessary for the Employment Judge to reconsider whether it would be just and equitable for the Tribunal to consider Mr Martin's one remaining complaint of race discrimination. He should bear in mind that it is not as if Mr Martin was always without legal advice. The Employment Judge found in paragraph 19 of his Reasons that in January 2009 Mr Martin was represented by solicitors and had then what the Employment Judge described as, "access to legal advice on all aspects of his situation". Mr Jervis, in his skeleton argument, says that that was wrong; Mr Martin had had legal advice and representation when it came to whether he had been overpaid benefits and on the criminal charges, but he had never had legal advice on any issues relating to his employment. Putting that to one side, the core point that the Employment Judge will have to address is whether Mr Martin really had to wait for the outcome of his appeal to the Appeal Tribunal and then to the Upper Tribunal over whether he had been overpaid benefits before presenting a complaint that alleged the length of the final written warning he had received had been infected by discrimination when compared to people of a different racial group, who had done what he was alleged to have done but whose final written warning had been shorter. It could be said that it would not be right for someone like Mr Martin, who believed that the warning he had was discriminatory, to ignore the three months' time limit and wait until the outcome of proceedings which would not actually decide whether the length of the warning, or anything else for that matter, had been discriminatory. Moreover, the warning expired on 22 March 2009, over a year before the presentation of the claim. Having said that, it is not for me to second guess the Employment Judge's thinking on the issue.

34. For these reasons, then, the council's appeal against the ruling of the Employment Judge, that the decisions to prosecute Mr Martin and not to impose an administrative penalty instead were capable of amounting to acts of discrimination over which the Tribunal had jurisdiction, must be allowed, and I record that they were not capable of amounting to acts of discrimination over which the Tribunal had jurisdiction. The council's appeal against the decision of the Employment Judge that it was just and equitable for the Tribunal to consider Mr Martin's one remaining complaint of race discrimination (namely, the length of his final written warning), notwithstanding that the timing before presenting the claim had expired, is allowed as well, and the issue is remitted to the Employment Judge for him to decide whether, in the light of the changed circumstances and the terms of this Judgment, it would be just and equitable for the Tribunal to consider Mr Martin's one remaining complaint of race discrimination.