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

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

Tuesday, 1st May 2001

J U D G M E N T
1. LORD JUSTICE PETER GIBSON: Mrs Moyo applies for permission to appeal out of time from the order made by the EAT on 10th October 2000 dismissing her appeal from parts of the decision of an Employment Tribunal sitting in Stratford. By that decision promulgated on 22nd January 1999 the Tribunal held that (1) Mrs Moyo was dismissed by the Waltham Forest Specialist Housing Consortium Ltd ("the Employer") but her complaint of unfair dismissal was stayed pending the outcome of the Seymour-Smith case in the European Court of Justice, (2) she was not dismissed for breach of her contract of employment, and (3) the Employer did not discriminate against her by way of victimisation within the meaning of section 2 of the Race Relations Act 1976 ("the Act"). Mrs Moyo appealed to the EAT against the third part of the Tribunal's decision and against the failure by the Tribunal to deal with a complaint of direct discrimination under sections 1(1)(a) and 4(2)(c) of the Act.
2. Mrs Moyo's Appellant's Notice was filed on 6th November 2000. The EAT directed that time for appealing ran 14 days from the date of the judgment being sent to the parties. It was sent on 2nd October. She was told by the solicitors who, with counsel, represented her before the EAT that she had to appeal by 27th October, and she attended the Court of Appeal office on that date. She did not have the correct forms. The Citizens Advice Bureau was unable to help her in time. In these circumstances I would not hold the very short delay against her.
3. Mrs Moyo is 57 years old. She is a British citizen of South African origin. She is a State Registered Nurse and State Certified midwife. She has a diploma in management and degrees from two British universities. She has considerable managerial experience. She was employed by the Employer from 20th January 1997 until 30th June 1997 as deputy manager of a residential home for the elderly and mentally infirm in Chingford. By February or March 1997 Mrs Moyo complained to the manager, Mr Adama, of the hostility of two white employees. She also complained of the attitude of a further white employee. On 18th April the Service Development Manager wrote a report consequent on Mrs Moyo's complaints. The report recorded that Mrs Moyo had made it clear that she could not continue to work at the home and requested a transfer. One of the persons about whom Mrs Moyo complained suggested on 27th April that Mrs Moyo had abused two clients. Mr Adama investigated the allegations. In a memorandum on 13th May and in a letter on 14th May to the Chief Executive, Mr Naylor, Mrs Moyo expressed herself in strong language, referring to hostility which had all the hallmarks of racism and racial hatred and to a "pathetic, dirty plot". Mrs Moyo was then effectively suspended by being told she was to go on leave until further notice. On 22nd June the Director of Operational Services, Mrs Sellwood, wrote to Mrs Moyo saying that there were no findings of misconduct in respect of the allegations of client abuse, but she told Mrs Moyo that as Mrs Moyo had said that she could not remain working at the home, her verbal resignation was accepted.
4. On 24th September 1997 Mrs Moyo applied to the Tribunal complaining of (1) racial discrimination, (2) breach of contract and (3) unfair dismissal. She said that she was treated differently by the Employer and that her complaints of racism within her work place were not dealt with by the Employer. She was asked to particularise her complaints about race discrimination. Particulars were given on her behalf on 14th January 1998. Apart from the complaint about dismissal, matters about which she complained fell outside the three-month time limit imposed by section 68 of the Act.
5. At the hearing before the Tribunal she was represented by David Knight, a branch secretary of her union, Unison, with the assistance of two others from Unison. Neither Mr Knight nor those assisting him had any legal training. The Tribunal in paragraph 1 of its decision said:

"The Applicant complained of racial discrimination but at the hearing confirmed" [the Tribunal meant "confined"] "this to a complaint of victimisation contrary to section 2(1) of the Race Relations Act 1976."

6. The Tribunal recorded the submission of Mr Knight as being that she lost her job as a direct result of her complaint of victimisation and racial discrimination. The Tribunal further recorded that Mr Knight concluded by saying that the case was one of victimisation. The Tribunal held that Mrs Moyo had not resigned but was dismissed. On the question of victimisation, the Tribunal referred to the decision of this court in Nagarajan [1998] IRLR 73 when finding that the complaint of victimisation failed.
7. For Mrs Moyo's appeal to the EAT Mr Knight swore an affidavit in which he said in paragraph 9:

"...I made representations on behalf of the Appellant with regard to all 4 aspects of the Appellant's claim. I highlighted various issues and complaints to the Tribunal regarding the claim for race discrimination, victimisation, breach of contract and unfair dismissal. I further highlighted to the Tribunal the various issues surrounding the Appellant's treatment during her employment with the Respondent and raised these as grounds upon which her claim amounted to race discrimination and that of victimisation."

8. He then referred to the sentence in paragraph 1 of the Tribunal's decision which I have cited, and said:

"It is my view that the representations which I made on behalf of the Appellant to the tribunal highlighted her claims of victimisation and race discrimination, and that these claims were not withdrawn or abandoned during the tribunal hearing."

9. He repeated that he stated Mrs Moyo's case to be one of victimisation and race discrimination. He said:

"I am able to confirm that race discrimination pursuant to section 1 of the Race Relations Act 1976 was a live issue at the hearing."

10. The Chairman of the Tribunal was invited to comment on that affidavit. He said this:

"4. .... At the outset of the hearing Mr Knight, on behalf of the Appellant, said that the complaint was one of victimisation. He said that the earlier allegations (of discrimination) made by the Appellant played a part, but went on to say that the issue was that the Appellant's complaints were not investigated. Ms White, who appeared for the Respondent, referred to the sequence of events, saying that in relation to any complaint of race discrimination, the earlier allegations were out of time, and that if the Tribunal was asked to consider these complaints of discrimination the Tribunal would have to consider the time issue. The Tribunal was in no doubt following what was said by the parties' representatives, that it was asked to consider solely a complaint under Section 2(1) of the Act.

5.Before closing submissions were made on the final day of the hearing Ms White asked what were the allegations, and the hearing was adjourned at 3.35pm to enable Mr Knight to take instructions. The parties returned at 3.50pm, and Mr Knight told the Tribunal that he was relying on Section 2(1)(d) of the Act, and that the claim was one of victimisation.

6.In his closing submission Mr Knight said inter alia that the case was `one of victimisation', and observed that he did not think that the case of Nagarajan v London Regional Transport (1998) IRLR 73 CA was applicable. He said that the appellant had `lost her job as a direct result of claiming victimisation and race discrimination.' He later added that on making a claim of discrimination `an employee should be protected from victimisation by the Race Relations Act', observing that in the present case if the Respondent had made fuller enquiries it could have found more specific details.

7.It was for these reasons that the Tribunal considered the Appellant's claim on the basis that it was one of victimisation."

11. The Employer's solicitor also gave his comments. He said that his and his counsel's recollection was that the claim of direct race discrimination was abandoned prior to closing submissions. The Employer also by letter from Mrs Sellwood agreed with the Chairman's comments.
12. At the EAT hearing, as I have said, Mrs Moyo was represented by counsel. The EAT allowed Mrs Moyo's appeal on victimisation on the basis that this court's decision in Nagarajan had, subsequently to the Tribunal's decision, been reversed. But on the failure by the Tribunal to deal with the complaint of direct discrimination the EAT noted that, where a dispute arises as to what occurred during the course of a tribunal hearing, the Chairman's record of events has to be accepted as accurate unless both sides agree that his recollection is incomplete or imperfect: see Dexine Rubber Co. Limited v Alker [1977] ICR 434, at page 438.
13. Nelson J giving the judgment of the EAT said of Mr Knight's affidavit that it was "at best somewhat unclear". He continued:

"He refers to matters being his `view' and `highlighting' race discrimination but he does not deal expressly with the fact that a short adjournment was specifically granted so that he could state with clarity what was being pursued and was not being pursued and that both the Tribunal and the Respondent considered that he had, after the adjournment, abandoned the claim in respect of race discrimination under section 1 of the Act.

We are satisfied that the claim in respect of direct discrimination was abandoned before closing submissions and as a consequence no claim under section 1 was dealt with by the Respondent's representative in closing submissions.

We are satisfied that the concession was made that the claim was only under section 2, that the Tribunal and the Respondent acted on it and that there are no exceptional circumstances or compelling reasons which would permit the concession to be withdrawn however much it is regretted that it was made."

14. Mrs Moyo appears before me today in person. She has submitted a document setting out her various submissions. These are wide-ranging and go beyond what is permissible on an appeal in this court given that before the EAT there were only the two matters which were being pursued, one of victimisation (upon which Mrs Moyo succeeded) and the other of the alleged abandonment of the concession. I have heard her make further submissions in respect of the latter point. She repeats the submission made to the EAT on the basis of Mr Knight's evidence that the claim of direct discrimination was never abandoned. But, in my judgment, the EAT's criticisms of Mr Knight's evidence are fully justified. In the light of the Chairman's comments, it is clear that Mr Knight had at least two opportunities to state what Mrs Moyo's case was, once at the outset (when he said the case was one of victimisation), and the second time when the hearing was adjourned to enable Mr Knight to take instructions.
15. Mr Knight's submission that Mrs Moyo had lost her job as a direct result of claiming victimisation and race discrimination betrays a confusion of thought or expression. Her complaint is that because she had complained of race discrimination, she lost her job and thereby was victimised. The Employer's counsel had taken the limitation point in respect of her complaints of direct discrimination being out of time; and Mr Knight may have been influenced by that to confine the case to victimisation which did not run into limitation difficulties. It has to be borne in mind that limitation goes to jurisdiction. The Tribunal has no jurisdiction to hear stale complaints unless it makes a specific order extending time. Whatever went through Mr Knight's mind, his affidavit is unimpressive in that he fails to acknowledge that there had been an adjournment to enable him to take instructions on what his case was. The Chairman, as has been noted, is quite specific as to the time of the adjournment and how long it lasted. The impression gained by the Tribunal that ultimately only victimisation was pursued is supported by the Employer, its solicitors and counsel.
16. In these circumstances the EAT was right to conclude that the concession had been made, and there is no ground now for saying that the EAT exercised its discretion wrongly in refusing to allow the concession to be withdrawn. In my view there is no real prospect of success on an appeal on this point, nor is there any other compelling reason for allowing the appeal on this point to proceed further. The rehearing in the Tribunal will proceed on the victimisation point alone, as ordered by the EAT.
17. I must therefore dismiss this application.
Order: Application dismissed.