England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge Peter Clark)

		Royal Courts of Justice Strand London WC2 Friday, 12th October 2001

Friday, 12th October 2001

1. LORD JUSTICE PETER GIBSON: The applicant, Mrs Collins, worked for the Respondent ("the Bank") from 19th November 1977 until dismissed on 29th June 1999 after being on sick leave from December 1996. She applied to an Employment Tribunal on 28th September 1999, pleading in her IT1 against the Bank: (1) unfair dismissal, (2) race discrimination, (3) victimisation, (4) "reductions from wages" and (5) breach of contract. In the details of her complaint she referred to her dismissal as unfair and said:

"I believe that this was an act of discrimination as well as victimisation as a result of complaints to the Tribunal. Full particulars to follow".

2. On 2nd November 1999 those particulars had still not been given. That day she was ordered by the Tribunal to give full particulars of her claim by 12th November 1999 and warned that if she failed her claim might be struck out. That time limit was extended by 14 days on the application of her solicitors. Particulars dated 25th November 1999 but not received until just after the 14-day limit on 29th November were supplied. They contained in paragraph 37 a statement that the treatment which she had received from the Bank had been in contravention not only of the Race Relations Act 1976 but also of the Disability Discrimination Act 1995 ("the 1995 Act"), and that this treatment had amounted to victimisation and equated with unlawful race discrimination and unlawful disability discrimination.
3. The Bank resisted her application. it denied that she was disabled within the meaning of the 1995 Act or that she was discriminated against on the ground of her disability or victimised under the 1995 Act. It pointed out that this was the first assertion made to the Bank by Mrs Collins that she was disabled and that she had a complaint under the 1995 Act. Further and better particulars were requested by the Bank. At a directions hearing on 9th February 2000, the Tribunal Chairman directed that all outstanding requests were to be complied with by 31st March. He also directed that there be a preliminary issue hearing limited to two issues. One was whether Mrs Collins was disabled within the meaning of the 1995 Act. The other was whether a tribunal has jurisdiction by reason of the appropriate time limits within the Disability Discrimination Act 1995 to entertain Mrs Collins' claims of disability discrimination. Logically those issues were put the wrong way round. By paragraph 3(1) of Schedule 3 to the 1995 Act an industrial tribunal shall not consider a complaint unless it is presented before the end of the period of three months beginning when the act complained of was done, although it goes on to provide in paragraph 3(2) that if it considers that it is just and equitable to do so, a tribunal may consider any such complaint out of time. Thus the Tribunal was debarred from considering the first preliminary issue on disability unless it found that Mrs Collins' complaint was not out of time or else it had considered that it was just and equitable to extend time. On 31st March further and better particulars were served by Mrs Collins' solicitors, but in response to a request for particulars of paragraph 37 they said that such matters as were relevant would be provided in her witness statement.
4. The preliminary issue was heard on 28th June 2000. The Tribunal in its decision promulgated on 7th July 2000 found that Mrs Collins had taken legal advice from January 1999 onwards, that on 28th September 2000, the last possible date for presenting an application in time, she had presented her application which she then considered to be the totality of her claim; that in October she retained solicitors and was advised of a possible claim under the 1995 Act but that only on 29th November was the claim under the 1995 Act made. The Tribunal treated the service of the particulars as an application by her to amend her IT1. The Tribunal decided that it was not just and equitable in all the circumstances to allow that application. It also gave directions for the hearing of her five complaints which had been set down for five days commencing 18th September 2000. It ordered Mrs Collins by 24th July to deliver full particulars of her case including, in respect of every act of discrimination or victimisation complained of, full details of her case.
5. On 24th July Mrs Collins' solicitors sent to the Bank a statement which contained no allegation of race discrimination. On 28th July the Chairman of the Tribunal made an order repeating the order of 28th June and warning that failure to comply might result in a dragging out of the application. Mrs Collins' solicitors on 3rd August replied saying that it was her case that she was not in possession of details to support her claim because that information was only in the Bank's possession and could only be obtained by an order for discovery. They asked for a review of the Chairman's decision of 28th July. The Chairman replied on 7th August saying that there was no power to review that order but the Chairman would consider making an order for discovery if the solicitors sent a copy of any request made to the Bank, and that unless that was received within seven days, the originating application would be struck out without further warning. No request was received and on 16th August the originating application was struck out by the Chairman, the decision being promulgated the same day. Mrs Collins' solicitors on 25th August wrote to the Tribunal asking for a review of the decision to strike out. By a decision promulgated on 14th September the Chairman refused the application for a review.
6. In the meantime on 15th August 2000 Mrs Collins appealed against the decision of the Tribunal of 7th July 2000. The preliminary hearing of that appeal came before the EAT, Judge Peter Clark presiding, on 5th March 2001. The EAT dismissed the appeal saying that the Tribunal was entitled to take the view that it was not just and equitable to extend time. The EAT pointed out the further difficulty that the originating application had already been struck out and that there had been no appeal from that decision.
7. Mrs Collins, acting in person, lodged an appellant's notice on 1st June 2001. In it she identifies the order which she wishes to appeal as the order of Judge Clark of 5th March 2001, by which she plainly means the EAT's order dismissing her appeal from the Tribunal's decision of 7th July 2000. But then she says this in the box headed "If only part of an order is appealed, write out that part (or those parts)":

"I WISH TO APPEAL THE STRIKING OUT ORDER AND REFUSAL OF AN APPLICATION TO REVIEW, BY THE EMPLOYMENT TRIBUNALS, 6 MONTHS HAVE ELAPSED AND I HAVE NOT HAD ANY SATISFACTORY EXPLANATION FROM MY SOLICITORS, AS TO WHY AN APPEAL WAS NOT SUBMITTED TO EMPLOYMENT APPEAL TRIBUNAL FOR MY ORIGINATING APPLICATION OF 28.9.1999."

8. Insofar as she is seeking permission to appeal to this court from the Tribunal's decisions of 16th August 2000 and 14th September 2000, she is asking for the impossible from this court as she has yet to try to appeal from those decisions to the EAT. This court has no jurisdiction to hear appeals directly from employment tribunals. Only the EAT does, and in any event, if she were to try to appeal to the EAT, she would be long out of time. An application to appeal therefore against the Employment Tribunal's decisions is hopeless.
9. That leaves the question whether she can appeal from the EAT's dismissal of her appeal from the Tribunal's refusal to allow her to amend her originating application to claim under the 1995 Act. Again I am afraid that seems to me to be a hopeless appeal. The originating application has been struck out and has not been the subject of an appeal. But I would not wish her to leave this court thinking that but for that she might have succeeded on her application to appeal the EAT's decision on the limited point before it. I am afraid that I can see no prospect of success on that point. The Tribunal was within the proper ambit of its discretion in refusing Mrs Collins' belated attempt to add a claim under the 1995 Act in the particular circumstances to which I have referred, and this court would not interfere with that exercise of discretion unless it could be shown that the Tribunal was plainly wrong or had made some error of law. Mrs Collins has explained to me that she objects to that decision because the Tribunal did not consider her complaints under the 1995 Act; in particular she says that it never considered the first of the preliminary issues ordered to be tried at the preliminary hearing. But as I have explained, the Tribunal was barred from considering any matter under the 1995 Act unless the application was presented within time or the Tribunal considered it just and equitable to consider the complaint out of time. For the reasons which I have given it was entitled to take the view which it did.
10. Accordingly, on the substance of the EAT's decision, an appeal would in my view be hopeless. There is no other reason why this appeal should be allowed to go ahead. If Mrs Collins has been served badly by her solicitors, as she has indicated, it may be -- I do not express a view on it -- that she would have a cause of action against them. But that does not assist her on this application, which I am afraid, for the reasons I have given, must be dismissed.
Order: Application dismissed.