England and Wales Court of Appeal (Civil Division) Decisions

1. LORD JUSTICE HOBHOUSE: This is an application for leave to appeal to this court from a decision of the Appeal Tribunal in respect of the applicant's (Mr D'Souza) complaint that the Industrial Tribunal refused to accept his complaint. His complaint was made on 3rd March l996. It made an allegation of sexual discrimination contrary to the Sex Discrimination Act and it related to his employment by the respondents, London Borough of Lambeth, which terminated on l6th January l99O.

2. Mr D'Souza had been employed as an information systems group manager for a period of time by the local authority. Unhappily he got into dispute with them which led to his dismissal on that occasion. In l99O he had brought and pursued claims for wrongful dismissal and matters of racial discrimination and related matters. He was successful and he obtained a decision in November l992 substantially in his favour from the Industrial Tribunal, but he did not obtain relief in respect of non-reinstatement. The authority declined to reinstate him and there that matter had to rest.

3. Both in l99O and in l992 there had been on the fringes of the matter questions of whether there was sexual discrimination as well. It clearly was one of the things that was considered in l99O by Mr D'Souza with his solicitors at that stage although he did not make a complaint on the basis of sexual discrimination. However, in l992 he saw an article in The Daily Telegraph for Saturday 24th October l992 which referred to a Miss Emma Lewis, who also had made a claim for wrongful dismissal against the same council. That claim for wrongful dismissal had been rejected by the Tribunal, it so stated in the article, but there was a recommendation that a grievance procedure should follow. That resulted in the council considering her grievance further. Happily for Miss Lewis she continued to be paid in the meanwhile as if she had not been dismissed and eventually she was only dismissed when she over a period of five years repeatedly refused offers of alternative posts. So, as the article said, she was paid £2O,OOO a year to stay at home. Mr D'Souza considered that she was very favourably treated and indeed that was the thrust of the article. Apparently he believes that that gives him a basis for alleging that contrary to the l975 Act he has been discriminated against on the grounds of sex. He is a man, Miss Lewis is a woman. He did not achieve as satisfactory a result as Miss Lewis.

4. Of course those statements are just the starting point and they do not demonstrate that there has been discrimination on the grounds of sex. However, in l992, whilst his existing proceedings before the Tribunal in respect of his wrongful dismissal and related matters were still pending and before they had finally been determined, he read this article. He took the advice of his solicitors, Messrs Lawford, who are a leading firm in this field. What is more, he wrote a letter promptly on 25th October enquiring, and effectively interrogating the council, about this point and how Miss Lewis had been treated. The council either declined or failed to respond to that letter.

5. The position at that time was that, having taken advice, Mr D'Souza chose not to add that complaint to the complaints that he was then pursuing before the Industrial Tribunal. As I have already observed, he was successful in establishing that he had been improperly and unfairly dismiss but he did not obtain all the relief arising from that which he had hoped. On the merits of the case he was substantially successful and it may be doubted whether or not to add that other complaint would have made a significant difference to the situation. But that no doubt was something that was considered at that time in conjunction with the question whether or not he could make out the complaint in any event.

6. In fact matters continued. There were further proceedings in the same matter, the original l99O complaint, and those continued apparently until April l995 on various peripheral or consequential matters following the main decision.

7. However, Mr D'Souza chose to revert to this matter in February l996. On the 23rd of that month he wrote to the council saying that two days ago he had received information which led him to believe that his dismissal also constituted unlawful sex discrimination. He did not elaborate on what the information was or what the nature of the unlawful discrimination was. That was not responded to. He served a questionnaire of very considerable length, asking questions about the case of Miss Lewis and innumerable other cases as well, because the questions were generally expressed. When he did not get a response to that, within a mere matter of days he commenced these proceedings.

8. I have already said what he alleged. The allegation related to his dismissal on 6th January l99O and "other earlier acts". I refer to the fact that the sex discrimination questionnaire had been served. It was served on 23rd February l996 and states that it had not been responded to. He made a formal application that it should be treated in respect of sex discrimination under the l975 Act or the EEC equal treatment directive. It continued:

9. He then went on to refer to the case of Marley UK Ltd v. Anderson , which at that stage had only been reported in The Times, apparently dated 2Oth December l995, and the question of newly discovered information and to the position under the community law as determined by the European Court of Justice.

10. The statutory position is, as he stated it, that there is a time limit of three months under section 76 but that may be disapplied by the court whenever they consider it just and equitable to do so in all the circumstances of the case. This is a point which goes to the jurisdiction of the Industrial Tribunal to hear the complaint and it involves an exercise of discretion on their part. The respondents, the London Borough of Lambeth, pointed out that there was no jurisdiction unless his time was extended. They submitted that it should not be extended. They also pointed ought the paucity of the particulars in the application and they had in fact made a request for additional information. There was a bit of tit-for-tat in that aspect because they had declined to answer the questionnaire and the applicant declined to answer the particulars.

11. The important point is the question of whether or not it was just and equitable in all the circumstances that the applicant's time should be extended. The Industrial Tribunal concluded that it was not. Mr D'Souza submits that they made an error of law in arriving at that conclusion. If he is right in that, then he was entitled to have that error of law recognised by the Appeal Tribunal, and in fact he proceeded to the Appeal Tribunal but the Appeal Tribunal dismissed his appeal at the outset because they said that there was no error of law disclosed in the Industrial Tribunal's decision. There is only an appeal to the Appeal Tribunal on the grounds of error of law.

12. Not content with that Mr D'Souza has made the application to this court, which again has to be made on the basis of error of law, because he submits that the Appeal Tribunal's refused to recognise that there had been an error of law and the decision of the Industrial Tribunal itself discloses an error of law. The logic of that is impeccable but it all depends upon whether or not there was an error of law by the Industrial Tribunal.

13. As I said earlier, the matter is a matter for the assessment by the Industrial Tribunal itself. There may be situations in which they are entitled to come to one conclusion or another. Both conclusions would be consistent with the law on a proper exercise of their powers. What Mr D'Souza has to make out is that, as a matter of law, it was not open to them to conclude as they did that it was not just and equitable in all the circumstances of the case to extend the time. It is quite clear that the Industrial Tribunal did consider the material circumstances. They also considered the question of European law and I should shortly refer to that first.

14. The position under European law is that there have to be effective and non-discriminatory remedies granted to persons such as Mr D'Souza. Any time limits that are imposed must not be discriminatory nor must they be such as to deprive him of effective remedies. But provided that is the case, then the domestic law time limits and provisions governing the time within which complaint must be brought can be applied. The law relating to that is clearly laid down by the European Court in the case of Fisscher (case C-l28/93) and is discussed and confirmed in the judgment of Lord Justice Schiemann in the case of Preston [l997] I.C.R. 899 particularly at p.9O9. So there is nothing contrary to European law in the decision of the Tribunal.

15. The points that he then raises, with regard to whether or not the decision they arrived at was one which was properly open to them, range over a number of considerations. He points out that press reports may give him an inadequate basis to proceed before the Tribunal, that his subjective view of the situation should be taken into account, and that he should not be penalised because he was wrongly advised by lawyers. He drew our attention to the case of Keeble [l997] IRLR 336 and what is said there by Mrs Justice Smith, sitting as chairman at the Appeal Tribunal, and the factors which have to be taken into account. He points out that the Tribunal were willing as an additional ground to strike out the claim as being inadequately particularised, although that was not the basis upon which they decided the matter. He generally stresses the breadth of the discretion that is open to the Tribunal and relies again on the case of Marley.

16. It is quite clear in my judgment that all these matters were considered and properly considered by the Industrial Tribunal. The applicant had a difficult case to make out. This point of sex discrimination had been something which he had been aware of at an earlier stage. He had remedies which he could have pursued at that earlier stage. He had pending proceedings then against the council on which, as he points out, relying on Marley, he could have attached this complaint to the ones that he was already making at that time. But the fact remains that he did not add it at that stage. He did not take the appropriate steps to compel the authority to provide him with the information which he says that he ought to have had. He did not invite the Tribunal to draw inferences from the failure to provide information.

17. The overall picture is, I regret to say, clear. There were no real grounds upon which he could contend persuasively that it was just and equitable that his time should be extended. I am not surprised by the view that the Appeal Tribunal took when they expressed a similar opinion. But in any event what Mr D'Souza has to persuade a court or an Appeal Tribunal of is that the discretion of the Industrial Tribunal was not one which was lawfully open to it. As I have said throughout, this was a matter for the Industrial Tribunal to assess and, in the circumstances of this case a very large delay, the fact that the matter had already surfaced at an earlier stage, the fact that there is no clear case of any actual or sexual discrimination having occurred being made out, the Industrial Tribunal was fully justified in arriving at the conclusion which it did and it discloses no error of law.

18. In my view there is no point which would justify giving leave to appeal to this court and therefore this application ought to be refused.

19. Order: Application refused.