England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Tuesday, 1st November 2001

1. LORD JUSTICE PILL: This is a renewed application for permission to appeal from a decision of the Employment Appeal Tribunal given on 1st February 2001. I refused permission on the papers on 24th August.
2. A single point arises at this stage. Mr. Juss on behalf of the applicant, Mr. Neckles, submits that his application to the Employment Tribunal to extend time within which a claim of racial discrimination could be brought has not properly been considered, either by the Employment Tribunal in its decision, or the Employment Appeal Tribunal in the decision to which I have referred. The Employment Appeal Tribunal found the reason given by the Employment Tribunal, read literally, to be "plainly wrong" (paragraph 7 of the decision of the Employment Appeal Tribunal, Mr. Underhill QC presiding). The Employment Appeal Tribunal went on, however, with reasoning which with respect is somewhat elaborate, to find a different basis upon which to uphold the decision of the Employment Tribunal. I repeat that the only issue for consideration is whether the applicant's claim that it would be just and equitable to extend the time for him to bring his claim for racial discrimination has not properly been considered.
3. The application was brought, upon the reasoning of the Employment Appeal Tribunal which on this point may have been favourable to him, four months out of time. The Employment Appeal Tribunal set out the basis upon which that figure is achieved. There had been an earlier racial discrimination claim, brought together with a claim for unfair dismissal. However, the Employment Tribunal on that occasion was not prepared to permit the amendment of the claim to include a racial discrimination claim. The Employment Appeal Tribunal's reasoning is that in substance the applicant is attempting to resurrect in his fresh claim what he had failed to have considered as a matter of substance in his earlier claim. That is not, however, the point which is being made on behalf of the applicant. The applicant's point is that it is only because of subsequent events that it has become arguable that there is a racial discrimination claim. Those subsequent events are set out in the chronology at page 2 and onwards of the skeleton argument, page 15 and onwards of the bundle, by reference to the relevant documents, though I have to say that some of the references are not complete. I trust that, if the appeal does proceed, then the referencing of the bundle will be fully considered.
4. It is submitted that fresh evidence arose which threw a fresh light upon the decisions taken at the time of the earlier hearing. That point has not been considered either by the Employment Tribunal, whose reasoning the Employment Appeal Tribunal found to be plainly wrong, if read literally, or in the reasoning of the Employment Appeal Tribunal. What is said at page 8 of the Employment Appeal Tribunal's judgment (page 37 of the bundle) is that the respondents should not have to go over the same substantive grievance now, two years later, because the appellant has clothed it in a new legal guise.
5. At page 38:

"The Tribunal's essential point was that the racial discrimination claim was, in principle, available to be decided in the 1997 proceedings and ought in justice to have been raised then. Whether his failure to raise it then was the result of oversight, or bad advice or indeed because he appreciated that there was no real basis for such a claim - or for any other reason - does not affect the justice of the matter as between both parties."

6. That does not deal with the point that it is only material which has emerged subsequent to the 1997 proceedings which forms the basis for the claim now sought to be made.
7. A further point made by Mr. Juss is a procedural one, namely that, by failing to require oral evidence from the applicant, they were wrong in rejecting his grounds for saying that it was just and equitable. While I do not exclude that argument from being pursued, I have to say that, in my judgment, it has little merit. Whether circumstances mean that it is just and equitable to extend time is a different question from a decision as to the credibility of a witness. A witness's credibility may be accepted and his written statement admitted without question without it necessarily being just and equitable that an extension of time be granted on the facts raised.
8. The point which is arguable, in my judgment, is the one to which I have referred, that neither in the decision of the Employment Tribunal, nor in the decision of the Employment Appeal Tribunal, is the point confronted as to whether it is just and equitable to extend time by the four months involved because some of the facts which are said to make a claim for racial discrimination arguable only came to light during that period. I have stressed to Mr. Juss in the course of argument the problems which face the applicant if he is to pursue the claim as a matter of substance. If he were to succeed on the present point, that could only lead to a lower tribunal considering whether it was just and equitable to proceed. That point might be determined against him upon a full consideration of the evidence. Even if he has an extension of time, then it does appear to me, though I have not comprehensively considered the allegations, that the difficulties of his establishing racial discrimination are very considerable indeed.
9. This is one of those cases where I think it right to draw attention to the difficulties faced by the applicant. A procedural victory, even if achieved, may turn out to be a Pyrrhic victory, in that it would involve him in a considerable amount of costs without achieving anything. However, as I have already made clear, it is not my duty or my intention to advise the applicant. That is a matter for him and his legal advisers. I merely say that the narrow procedural point raised is arguable and I propose to give leave.
Order: Application allowed; time estimate one and a half hours; three judge constitution, one of whom can be a High Court judge; attention to be given to referencing of bundles. (Order not part of the judgment of the court)