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
(Mr Justice Lindsay: President)

		Royal Courts of Justice Strand London WC2A 2LL Thursday, 22nd November 2001

Thursday, 22nd November 2001

1. LORD JUSTICE PETER GIBSON: This is an adjourned hearing of an application by Tunde Apelogun-Gabriels ("the Applicant") for permission to appeal from the order of the EAT on 26th February 2001 in a complaint (which I shall call "the second complaint") brought by the Applicant against his employer, the London Borough of Lambeth ("Lambeth"), and Bernard Holmes, Lambeth's Acting Financial Bureau Manager, under the Race Relations Act 1976 ("the Act"). The EAT ordered the case to be remitted to an Employment Tribunal different from that which had been dealing with the second complaint in order to determine two matters which were identified by the EAT. The application for permission to appeal came before Pill LJ as the single Lord Justice with only the Applicant present, as is the practice. Pill LJ adjourned the application to come before the full court on notice to Lambeth and indicated that, if permission to appeal were granted, the appeal should follow immediately.
2. The Applicant is a black African, a Yoruba from Nigeria. He has been employed by Lambeth since April 1990 as an accounting assistant in the finance section of the Department of Social Services. In November 1998 the Applicant presented to the Tribunal a complaint ("the first complaint") under the Act against Lambeth and two individuals, a senior manager in the same section as the Applicant, Mr Bowry, and a Mr Good. He complained of direct racial discrimination in terms of victimisation. The complaint against Mr Good was struck out at a directions hearing. In November 1999 the hearing of the first complaint took place over eight days. The Applicant's complaint was dismissed. He appealed to the EAT, but that appeal was dismissed on 26th February 2001 and permission to appeal was refused by Pill LJ.
3. On 14th March 2000 the Applicant lodged the second complaint, complaining of discrimination and victimisation, harassment and bullying. He referred to sections 1(1)(a) and (b), 2(1)(a) and 4(2) of the Act. The Applicant has acted in person throughout and I hope he will forgive me for saying that his use of the English language is not altogether easy to understand. But it appears that his complaint, in essence, was that he was victimised by Mr Holmes for bringing the first complaint. This was said to be because:

(1) Mr Bowry on 23rd August 1999 had made complaints to Mr Holmes against the Applicant;

(2)the Applicant had lodged a grievance on 24th August 1999 against Mr Holmes, complaining that Mr Holmes "had always bullied me", but the management had not communicated to the Applicant its conclusion on that grievance; and

(3)on 29th February 2000 Mr Holmes had by letter communicated his panel's findings to the Applicant on Mr Bowry's complaint.

4. The Applicant does not say in his IT1 what the findings were, but we are told by Lambeth's IT3 lodged on 25th April 2000. Lambeth said that on 23rd August 1999 Mr Holmes had informed the Applicant that he was investigating two complaints by Mr Bowry, and on 29th February 2000 Mr Holmes told the Applicant that Mr Bowry's grievance had not been upheld. Pausing there, I observe, therefore, that it is not clear why the Applicant included this in his complaint against Mr Holmes. However, Lambeth says that it investigated the Applicant's grievance against Mr Holmes and on 10th March 2000 it informed the Applicant that his grievance had not been upheld.
5. The complaints made by the Applicant in his IT1 were denied, and Lambeth contended that they were out of time and had no reasonable prospects of success. On 13th September 2000 there was a hearing by the Tribunal to consider whether it had jurisdiction and to give directions. By the decision promulgated on 29th September 2000 the Tribunal held that it had jurisdiction to entertain complaints by the Applicant but only as particularised in his grievance against Mr Holmes of 24th August 1999. It referred to the decision of the EAT in Aniagwu v London Borough of Hackney [1999] IRLR 303, and said of that decision:

"It seems to us that that decision lays down a general approach in discrimination cases where the Tribunal is concerned not with the strict test of reasonable practicability but the somewhat wider test of justice and equity. We adopt the language of the headnote and in particular the comment of the learned former President [Morison J] "... unless there is some particular feature about the case or some particular prejudice which employers can show every Tribunal would inevitably conclude that it is a responsible and proper attitude for someone to seek to redress a grievance through the employer's grievance procedure before embarking on legal proceedings."

6. The Tribunal noted that the Applicant presented his IT1 on 14th March 2000, within a day or so of receipt of the outcome of his grievance against Mr Holmes. It also noted as correct that a number of the main allegations which the Applicant had argued in his grievance of August 1999 against Mr Holmes were based on facts in the summer (or earlier) of 1999 and said that it would have been possible for the Applicant to present an originating application prior to the hearing of the first complaint in November 1999 about those matters. The Tribunal said that in potential estoppel situations a problem was continuing discrimination and that the correct approach is not to deal with matters by amendment but to have a new originating application to be consolidated with the earlier originating application. The Tribunal said:

"6.In this case we have come to the conclusion that although it may well cause some additional costs and delay to the Respondents it is not just and equitable that the Applicant should be prevented from litigating the matters contained within his grievance, the outcome of which he is plainly dissatisfied about."

7. Then in the next paragraph the Tribunal said:

"7.We make it absolutely clear however that it is solely on the basis that he awaited the outcome of that grievance that we allow the Applicant to go into those matters."

8. However the Tribunal then referred to a number of matters about which the Applicant was complaining in his second complaint which were issues litigated in the first complaint. The Tribunal found a clear estoppel preventing the Applicant from raising those matters again.
9. On 12th October 2000 Lambeth applied for a review of the Tribunal's decision on the basis that Lambeth had submitted that the Tribunal did not have jurisdiction to hear some of the Applicant's claims because he had, or could and should have, brought the claims in the first complaint and the claims were presented outside the three-month statutory limit. Lambeth said that it had relied on Henderson v Henderson [1843] 3 Hare 100 and a number of more recent decisions, including Divine-Bortey v London Borough of Brent [1998] IRC 886. Those decisions relate to that part of the doctrine of res judicata which covers issue estoppel in the wider sense, that is to say that, save in special circumstances, a person is precluded from bringing fresh claims which could, and should, have been litigated in the earlier proceedings. But the application for a review was rejected on 7th November by the Chairman.
10. Lambeth appealed to the EAT. By this time the decision of the EAT (with the current President, Lindsay J, presiding) in Robinson v Post Office [2000] IRLR 804 had been published on 12th December 2000. In Robinson the EAT considered Aniagwu and the remarks made in that case in relation to whether the pursuit of a grievance procedure should be a good reason for allowing an extension of time so that time runs only once the grievance procedure has been exhausted. Lindsay J quoted what had been said in Aniagwu (including what the Tribunal relied on in the decision of 29th September 2000) and made the following comment:

"That is not, and does not purport to be, a proposition of broad applicability such that wherever and so long as there is an unexhausted internal procedure, then delay to await its outcome necessarily furnishes an acceptable reason for delaying the presentation of an IT1 such as would, of itself and without more, lead to relief under s.68(6) of the Race Relations Act or by analogy, s.76(5) of the Sex Discrimination Act or, as we are concerned with, paragraph 3 of Schedule 3 of the Disability Discrimination Act. Parliament could so easily have so provided in any one of those three Acts. It would also have been able to qualify the reasonable practicability test of s111(2) of the Employment Rights Act, to take account of the possibility there, but that has not been done in any of those Acts. It has done no such thing. It is not as if delay by reason of the incomplete nature of an internal appeal is a novel point. The point had come up in Singh v The Post Office [1973] ICR 437 and Macdonald v The South Cambridgeshire Rural District Council 73 IRLR 308. Sir Hugh Griffiths even suggested that the then Act of 1971 should be amended, so that time did not run until after domestic progress had been exhausted, and the same idea was repeated, the same recommendation to the legislature was repeated, in Bodha v Hampshire Area Authority [1982] ICR 200, 205 F-G per Browne-Wilkinson J, sitting with lay members of the Employment Appeal Tribunal."

11. And in paragraph 31, at paragraphs 808 and 809:

"We can only conclude that Parliament has quite deliberately not provided that invariably the running of time against an employee should be delayed until the end of the domestic processes. Accordingly, when delay on account of an incomplete internal appeal is relied upon as a reason for delaying an IT1 or failing to lodge it in time and where that is not merely alleged but upheld as a matter of fact, if that allegation and that fact is fairly considered by the employment tribunal and put into the balance when the justice and equity of the matter is considered, that ordinarily will suffice for the employment tribunal to escape error of law as to that issue."

12. The EAT in the present case held that the Robinson case laid down the applicable law. But the EAT said that an honest reliance on Aniagwu might provide grounds for an extension of time. That would depend on matters such as whether the Applicant had awaited the grievance outcome deliberately, believing that he was safe in doing so. The EAT said that on the time-bar issue it would remit consideration of the matters arising under section 68(6) and (7) of the Act to a fresh tribunal. It also remitted an issue on estoppel. It noted a concession by Lambeth that the Tribunal did have jurisdiction to consider the Applicant's complaint that the conduct of the grievance procedure was racially discriminatory and that the complaint was made in time. The EAT said that it was debatable how far the Applicant should now be held to be estopped by res judicata or by the wider form of estoppel recognised in Henderson v Henderson from raising issues which might have been raised at the hearing by the Tribunal of the first complaint. The EAT specifically recognised that a new party, Mr Holmes, was involved in the new complaints in addition to Lambeth against which both complaints had been brought. The EAT pointed out that the sentence from paragraph 7 of the Tribunal's decision which I have cited appears not to be dealing with the time-bar point but with estoppel, and that the view there expressed conflicted with the strict approach now adopted in relation to what constitute special circumstances allowing escape from the estoppel. The EAT said that that was an error of law by the Tribunal, and so the EAT remitted the estoppel issue as well.
13. The EAT required Lambeth to indicate what issues Lambeth claimed were:

(1) estopped by way of res judicata;

(2) estopped by the Henderson v Henderson point; and

(3) barred under the time-bar point.

14. Lambeth has done so by reference to sections in the amended originating application. It is not, I think, necessary to identify those claims for the purposes of this judgment.
15. The Applicant has put in an amended Appellant's Notice and a lengthy skeleton argument. In addition he has addressed us in person this morning. His grounds of appeal would appear to me to be, in effect, six in number, which I shall consider in turn.
16. First, the Applicant says that the EAT was wrong to treat Robinson rather than Aniagwu as stating the law. He says that an EAT cannot overrule the decision of another equal tribunal, that is to say another EAT. The Applicant may not have understood how the doctrine of precedent applies to EATs in relation to other EAT decisions. An EAT will normally treat an earlier EAT decision as authoritative unless it is convinced that the decision is wrong, in which case it can depart from it in the same way that a High Court judge can depart from the earlier decision of another High Court judge. For my part, I regard the decision in Robinson as being plainly correct. If one considers what was said in Aniagwu it may be that the headnote to the Industrial Relations Law Reports is not quite accurate in appearing to suggest that it was laying down some general principle to be followed in all cases by tribunals, as the Tribunal with which we are concerned appears to have thought. Instead, as it seems to me, what was said in Aniagwu was intended to be limited to the particular circumstances of that case, and on those facts the EAT was expressing the opinion that every industrial tribunal, unless there was some particular feature about the case or some particular prejudice which the employers could show, would take the view that to await the outcome of the grievance procedure was an appropriate course to take. To the extent that Aniagwu goes any further than that and lays down some general principle that one should always await the outcome of internal grievance procedures before embarking on litigation, in my judgment Aniagwu was plainly wrong. It has long been known to those practising in this field that the pursuit of domestic grievance or appeal procedures will normally not constitute a sufficient ground for delaying the presentation of an appeal. The very fact that there have been suggestions made by eminent judges in 1973 and in 1982 that the statutory provisions should be amended demonstrates that, without such amendment, time would ordinarily run whether or not the internal procedure was being followed. For my part therefore, I can see no error whatever in what Lindsay J said in the present case in relation to this matter, that is to say that the fact, if it be so, that the employee had deferred commencing proceedings in the tribunal while awaiting the outcome of domestic proceedings is only one factor to be taken into account. It is clear from the Tribunal's decision that the Tribunal was applying what it thought was a general approach laid down in Aniagwu, and that was erroneous. I see no real prospect of success on this first ground of appeal.
17. Second, the Applicant says that the EAT should have held that the time limit of three months in section 68(1) of the Act runs from the communication to the employee of the outcome of the grievance through the employer's grievance procedure. In my judgment that is hopeless in the light of the statutory wording that the three-month period begins "when the act complained of was done".
18. Third, the Applicant says that the EAT was wrong to order a remitter to a fresh tribunal. That appears to be a complaint that the EAT did not order the remitter to the same tribunal. But as the EAT identified errors in the Tribunal's approach, it seems to me that the EAT was well within the proper ambit of its discretion in deciding that it would be appropriate to order a remitter to a fresh tribunal. This is a question which EATs constantly are called upon to determine. In some cases there will be an obvious advantage in remitting the matter back to the same tribunal; in others it will properly take the view that in all the circumstances it is better that there should be a fresh tribunal looking at the point again. I can see no real prospect of this court interfering with the EAT's decision on this matter.
19. Fourth, the Applicant says that the principle of estoppel under Henderson v Henderson has no application to employment cases. That, again, is quite hopeless in the light of decisions of this court in Munir v Jang Publications Limited [1989] 1 ICR 1 and the Divine-Bortey case. They clearly establish that that form of estoppel can apply in industrial cases as it does in other parts of the law. Whether in the circumstances the principle does apply will be considered by the Tribunal to which the issue has been remitted.
20. Fifth, the Applicant says that the principle of res judicata does not apply in the circumstances of this case. Mr Edward for Lambeth submits that allegations made by the Applicant in the grievance, under the headings "on E-mail time differences", "inciting creditors to complain", "payment duplication", "payment backlog and "complaints against me written for Mr Bowry by Mr Holmes", were all adjudicated upon by the Tribunal in the first complaint. Again that will be looked at by the Tribunal to whom the remitter was made.
21. Sixth, the Applicant says that a medical note was shown to Lindsay J but was not "accounted" in his judgment. By that he tells us he means that the EAT did not refer in its judgment to a note from the Applicant's doctor to say that the Applicant was suffering from depression and was receiving certain medicaments. In my judgment there was no need for Lindsay J to refer to that medical note. It may be relevant to the estoppel issue and, if so, it can be considered by the Tribunal at the remitted hearing. I can see no disadvantage to the Applicant in the order made by the EAT, which will allow all such points to be taken into account. Certainly there is no error discernible in the EAT's decision in not referring to that medical note. The Tribunal is, after all, the tribunal of fact, not the EAT.
22. Having heard all that the Applicant has had to say, I am, I am afraid, unpersuaded that he has any real prospect of success on any of the points which he has raised. No other compelling reason for this appeal to be heard has been shown. I would therefore refuse permission to appeal.
23. LORD JUSTICE CHADWICK: I agree. I would add only this. Although we have not thought that this is a case in which permission to appeal should be granted, Peter Gibson LJ has taken the opportunity in his judgment to examine, in some detail, the supposed conflict between the observations of the EAT in Aniagwu v the London Borough of Hackney [1999] IRLR 303 - and perhaps, more pertinently, the interpretation of those observations in the head note to the report of that case - and the subsequent analysis of the relevant provision by the EAT in Robinson v The Post Office [2000] IRLR 804.
24. In my view the conflict - if, upon a true analysis, there is a conflict - should now be taken as resolved by this Court in favour of the analysis in Robinson. This court should direct, if my Lords agree, that parties should be able to refer and to rely upon the judgments on this application if the point should arise in the future before employment tribunals, notwithstanding that we have dealt with the matter on an application for permission to appeal rather than on a substantive appeal.
25. LORD JUSTICE LONGMORE: I agree with both judgments and there is nothing I can usefully add.
Order: Application dismissed with costs summarily assessed at £1,618. (Order does not form part of approved judgment)