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
Mr Justice Hooper

		Royal Courts of Justice Strand, London, WC2A 2LL Friday 21st December 2001

Lord Justice Judge :

1. This is an appeal from the decision of the Employment Appeal Tribunal (Mr Justice Hooper, Mr B Gibbs, and Mr P A L Parker CBE) dated 28th March 2001.
2. Between April 1992 and August 1999 Mohammad Younas (the applicant) was a serving police officer with the Thames Valley Police force. In January 1999 he claimed that he had been a victim of racial discrimination and harassment. The investigation by the Chief Constable was conducted, so the applicant believed, with insufficient energy and efficiency. The Chief Constable considered that the investigation had been comprehensive, and that no evidence was available to support Mr Younas' allegations.
3. On 5th August 1999, following a disciplinary hearing, the applicant was dismissed on grounds of discreditable conduct. He was also required to resign for disobedience to orders, (two cases), and reprimanded on two further charges.
4. On 4th November 1999, Mr Younas complained to an Employment Tribunal of unfair dismissal, racial discrimination/harassment and personal injury. The application referred to his complaint in January 1999. He asserted that it had not been dealt with expeditiously, nor had he been given any details of the enquiry and investigations, or their development. He went on to assert that "the effects of discrimination and harassment led to personal injury being caused to the applicant", and that "full details" would be supplied in due course. In view of the submissions made by Mr Korn on behalf of the Chief Constable, I must record at the outset that it seems plain from the notice of application itself, that the complaint referring to the "effects of discrimination and harassment" was a separate complaint, additional to the contention that the claim submitted in 1999 had not been dealt with adequately.
5. Notice of Appearance was entered on 29th November. The Chief Constable submitted that the Employment Tribunal lacked jurisdiction to determine the complaint relating to unfair dismissal. As a police officer, the applicant's rights were limited by section 200(1) of the Employment Rights Act 1996. It was also submitted that the claim based on alleged racial harassment or discrimination was out of time, well in excess of the three months allowed by Section 68(1) of the Race Discrimination Act 1976. The Chief Constable therefore applied for the proceedings to be struck out as an abuse of process, frivolous and vexatious. A preliminary hearing was sought.
6. By letter dated 24th December, and in response to a request, particulars of racial abuse, going back to 1993, were specified. The abuse was said to have continued until the applicant's suspension from duty in November 1998. The discrimination to which he had been exposed was said to have caused emotional trauma and stress which contributed to the breakdown of his marriage and his inability to perform his functions as a police officer.
7. On 31st January 2000 the applicant adopted the particulars as part of his substantive case, and alleged that the Chief Constable had failed to take the discrimination which he had suffered into account when reaching the decision in the disciplinary proceedings.
8. On 22nd March a preliminary hearing was adjourned. An order for directions required the applicant to particularise his allegations of racial discrimination, and the basis of the claim that this had been a "continuing" act. The questions whether the Employment Tribunal had jurisdiction to hear the complaint about unfair dismissal in the light of Section 200(1) of the 1976 Act, and whether the allegation of discrimination was presented in time, were to be decided at a preliminary hearing.
9. On 5th April detailed particulars of racial discrimination were supplied. Effectively the contents of the letter dated 24th December were repeated.
10. On 27th April the Employment Tribunal unanimously dismissed the claim of unfair dismissal and refused the applicant permission to amend the originating application. In relation to unfair dismissal, the Tribunal applied s.200(1) of the 1996 Act. Counsel for the applicant virtually conceded that, as a matter of statute, the Tribunal lacked jurisdiction, but he made an appeal to the Human Rights Act, not then in force. The Tribunal was unimpressed. As to racial discrimination, and the particulars supplied in accordance with the order for directions, it was suggested that the proceedings should be amended, as I understand it, by counsel for the Chief Constable, although the amendments were then said to relate to stale matters. It was conceded that reference might be made to them by way of background to the claim that the dismissal was itself racially tainted. The Tribunal refused to allow the amendment. It was not satisfied that it would be "appropriate to allow the applicant to proceed on the additional basis of his allegations of racial abuse as separate heads of claim", adding that they were stale. One of the features which weighed with the Tribunal was that there was no evidence from the applicant personally to explain why the allegations had not been pursued earlier. The applicant's absence was explained by counsel. He was said to be seriously ill. In reaching its conclusion, the Tribunal failed to appreciate that the application in its original form had indeed included an allegation of "discrimination and harassment, leading to personal injury", connected with but additional to the assertion that the claim made in January 1999 had not been adequately investigated.
11. On 20th June the applicant appealed against this decision. There were two grounds. The first proceeded on the basis that s.200 of the 1996 Act was incompatible with the European Convention on Human Rights. The second ground attacked the decision that the applicant was no longer able to continue with or amend his originating application to bring a claim for racial discrimination or harassment during his employment with the Chief Constable, apart from the claim for discrimination arising directly out of his dismissal.
12. On 14th November the Employment Appeal Tribunal (His Honour Judge Levy QC, Mr B V FitzGerald MBE and Mr R Sanderson OBE ), ("the first EAT") in the absence of the Chief Constable, exercised its powers under paragraph 14 of the Practice Direction (Employment Appeal Procedure) 1996.
13. This hearing involved a determination " whether the grounds in the notice of appeal raise a reasonably arguable point of law …"
14. Paragraph 14(4) provides:

"If satisfied that a reasonably arguable point of law is established, the appeal tribunal will give appropriate directions...to enable the appeal to proceed to a full hearing without unnecessary delay, on all or only some of the grounds of appeal."

15. Paragraph 14(5) provides:

"If not satisfied that a reasonably arguable point of law is raised by the appeal, the appeal tribunal will give a judgment explaining why the appeal is dismissed at that stage".

16. The precise terms of the judgment of the first EAT are critical. Judge Levy summarised the two grounds of appeal, and concluded:

"We all consider that there is an arguable point to go forward under the Human Rights Act and in the circumstances we propose to let this appeal go forward to a full hearing. The Employment Tribunal ordered an adjournment of the future conduct of the appellant's application, it would be helpful for all if the full appeal can be heard expeditiously, and we will so request."

17. In my view the judgment was not satisfactory. There was a degree of ambiguity , leaving the possibility for misunderstanding, about precisely what decision had been made. That has now led to the issue being argued again before the Employment Appeal Tribunal, and yet again, before this court. It would have been so much easier for the judgment to have said, explicitly, that the appeal should proceed on both grounds. The process, and similar processes, are familiar in a variety of jurisdictions. To avoid pointless expense and the misuse of limited resources, and to focus on the issues which really matter where more than one ground of appeal is raised, the Employment Appeal Tribunal should examine grounds of appeal which purport to raise points of law, and decide which if any, do, and which do not, merit a full appeal. The decision can be expressed in different ways. For example, the judge may say that the appeal "will be limited to", or "can only proceed on" such and such grounds, or is dismissed on identified grounds. If a ground of appeal is rejected reasons, however briefly expressed, should be given, first because, apart from an appeal to this court, that is the end of that ground, and second, because of the mandatory nature of paragraph 14(5) of the Practice of Direction which requires reasons for dismissal to be given. When the appeal is to proceed on all grounds, the judgment should say so expressly.
18. The subsequent order recorded that the "appeal be allowed to proceed to a full hearing in accordance with the judgment of the Employment Tribunal".
19. By letter dated 10th January 2001, the solicitor for the Chief Constable sought clarification of the decision. She pointed out that the applicant's notice of appeal had not raised any issues under the Human Rights Act in relation to the refusal to allow the amendment. She said that her interpretation was that the appeal was only permitted in relation to the "claim for unfair dismissal".
20. The response dated 12th January recorded that the appeal had been allowed to proceed to a full hearing "on the point on Article 6 of the Human Rights Act - ground 6(a) of the notice of appeal." The letter was copied to the applicant's representatives. Nothing was heard by way of contradiction.
21. On 27th March a second hearing began before the Employment Appeal Tribunal, differently constituted, which was invited to consider not only the dismissal point in relation to the Human Rights Act, but also the appeal against the decision to refuse to allow any amendment in relation to racial discrimination and harassment during the applicant's service as a police officer. The present appeal is concerned with the decisions of this second hearing before the Employment Appeal Tribunal. ("The second EAT")
22. The second EAT concluded that the first EAT had allowed the appeal to proceed in relation to ground 6(a) - the Human Rights Act issue - and that the appeal based on ground 6(b) - the amendment issue - had not been dismissed. Hooper J accepted that if ground 6(b) had been dismissed by the first EAT on 14th November, then the second EAT would have been bound by that decision. In effect, the second EAT decided that no order had been made within the terms of paragraph 14(5) of the Practice Direction.
23. The second EAT then went on to consider the issues. Ground 6(a) was treated as totally without merit. As to ground 6(b) it was decided that the refusal to allow the applicant permission to amend was wrong. No amendment was needed. The Employment Tribunal's decision was perverse. So the case was sent back for a re- hearing before a different tribunal, Hooper J pointing out that at that hearing the tribunal would be able to consider any "time" points taken on behalf of the Chief Constable.
24. We are now considering an appeal against the orders made by the second EAT. The narrative of the relevant events has sufficiently demonstrated how far what was originally intended to be a single, uncomplicated, rapid process can become entangled in procedural thickets, which have nothing whatever to do with the merits, or otherwise, of the case. It is now very nearly two years since the originating application in the present case. The litigation continues to meander along.
25. Stripped to essentials the main basis of the appeal is that the decision of the second EAT was wrong. Mr Korn submits that although not expressly, by implication, the first EAT had dismissed ground 6(b). Therefore the second EA T lacked jurisdiction to allow it to be re-opened. As subsidiary submissions, he referred to authorities on res judicata. In my judgment those authorities, and that principle, have no relevance to the present appeal. He also complained that the second EA T should have sought the observations of the first EAT to resolve the ambiguity in the judgment, and perhaps also the apparent conflict between the judgment itself, and the subsequent letter from the Registrar, purporting to explain it. In effect, Mr Korn suggested that nearly 6 months after the decision of the first EAT, it should be reconvened to clarify its decision. In my judgment, even if this course might have been appropriate at an earlier stage, by the time the second EAT was asked to consider it, it was far too late. The second EAT like this court, had to deal with the judgment as it was given, and to examine its language to discover precisely what decision was made. We did not require argument from counsel for the applicant on these subsidiary submissions.
26. The essential submission for the applicant on the main issue is that the first EAT did not decide ground 6(b) was unarguable. Accordingly it could not have and did not dismiss it. It did not need to rule on ground 6(b) and did not do so, and it gave no reasons, so the suggestion that it impliedly dismissed ground 6(b) was misconceived.
27. We must put these arguments into their proper context. The preliminary hearing related to alleged grounds of appeal on points of law. The objective of the preliminary hearing was to sift out bad points of law, or non-points of law, or issues of fact dressed up as points of law. At the first EA T hearing, when the applicant attended by counsel, the hearing lasted a matter of minutes. There appears to have been no oral argument at all in relation to ground 6(b). The crucial words used by Judge Levy were that the appeal should "go forward to a full hearing", with a later reference to the "full appeal" being heard. It is true that the judge referred to the Human Rights Act, and there had been no reference to that Act in relation to ground 6(b) but, he did not use language which suggested that the appeal based on ground 6(b) was dismissed, or regarded as unarguable, or give any reason whatever for doing so. As no reasons at all were given to explain, however briefly, why this ground of appeal was being dismissed, and nothing was said expressly to indicate that it was, in my judgment, the proper and fair conclusion is that it was not. In effect, therefore, I agree with the second EAT that the first EAT did not dismiss the appeal so far as ground 6(b) was concerned. The letter from the Registrar in purported explanation of the decision cannot undermine the terms of the judgment. Accordingly, the appeal on this issue should be dismissed.
28. A second ground was argued before us. Mr Korn submitted that the second EAT had been perverse and wrong in law in allowing the appeal on the ground 6(b) to proceed. He submitted that the Employment Tribunal was entitled to refuse the amendment.
29. The relevant facts have already been narrated. As already indicated, in my judgment, the Employment Tribunal failed sufficiently to appreciate that the applicant's claim from the outset was based not only on the alleged failure of the Chief Constable to pursue his complaint of racial harassment with sufficient energy, but also on racial discrimination and harassment throughout his period of service as a police officer . Detailed particulars were given within 3 months of the originating application, within approximately one month of the notice of appearance. The issue was clear throughout. Indeed the Employment Tribunal, while refusing to permit the amendment, accepted that the material relied on in the particulars could be given as part of the background. As the second EAT observed, although the originating summons was far from perfect, it did plead the issues of which further details were "given in the letter of 24th December and finally in the documents served on 5th April". The second EAT took the view that no amendment was necessary. Written notice of the relevant allegations had already been given. I agree. But even if an amendment had been needed, it should have been granted. No possible prejudice to the Chief Constable has been or could be shown. His position in relation to staleness and the passage of time, remains open. I therefore agree with the decision of the second EAT in relation to ground 6(b), and the reasons given by Hooper J for it.
30. This appeal should be dismissed.

Lord Justice Potter:

31. I agree.

Lord Justice Henry:

32. I also agree.
Order: Appeal Dismissed. The appellant to pay the respondent's costs of the appeal in the sum agreed of £4,448.12. (Order not part of approved judgment)