England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Wednesday, 25th September 2002

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal. The application was lodged by Mrs Ayobioj. It was listed for hearing not before 11.30am on 25th September. No one has appeared on her behalf. Mrs Ayobioj is not present. There is no record in the court file of any communication from her either seeking to have the application adjourned or stating that she would not be attending. It is now 11.45am.
2. In those circumstances I have decided to proceed to deal with the application in her absence on the basis of the representations contained in the papers. This case has an unfortunate procedural history, which stems from the circumstances of her employment as a personal assistant in the building design services section of the housing department of the London Borough of Camden from October 1990 until she was dismissed with effect from 26th May 1999. Prior to her dismissal Mrs Ayobioj had started proceedings in the Employment Tribunal against the council by an originating application on 24th February 1999. Under nine headings she claimed sex discrimination, victimisation, harassment and constructive dismissal.
3. She issued a second application in the Employment Tribunal in July
4. 1999. In that case she claimed unfair dismissal. In August 1999 particulars were given of the various claims. On 22nd September 1999 the Employment Tribunal made a decision in relation to the proceedings, as explained in the extended reasons sent by it to the parties on 25th January 2000. The claim for unfair dismissal was struck out as being out of time and parts of the application for discrimination and victimisation were struck out as being misconceived.
5. Mrs Ayobioj sought a review of that decision, which was refused. She appealed to the Employment Appeal Tribunal. At a preliminary hearing on 25th May 2000 the appeal tribunal allowed parts of her appeal to proceed to a full hearing, which took place a year later on 9th May 2001. The Employment Appeal Tribunal allowed Mrs Ayobioj's claim for race discrimination to proceed and remitted the matter to the Employment Tribunal, but dismissed her appeals against the refusal of the review and against the order striking out her claims of victimisation and sex discrimination. This appeal does not arise out of a substantive hearing of the race discrimination case, because it has still not taken place, despite the concern expressed by the Employment Appeal Tribunal about the delays in this case. At the end of his judgment in the Employment Appeal Tribunal Mr Justice Lindsay, the president said that -

" ..... the matter was now, at last we hope, after far too long a delay, to go to a full merits hearing and is to include the claim A for racial discrimination, but otherwise is to stay as the Employment Tribunal ordered it to be."

6. Instead of proceeding to a full hearing, as was hoped by the appeal tribunal, there was yet another application to the Employment Tribunal, this time for permission to amend the application. The chairman, Mr Latham, refused to grant permission to amend. The application for permission to amend was heard by him on 29th November. On 20th December he sent the extended reasons for his decision refusing the amendment. The reason for his refusal is stated in paragraph 7 of the extended reasons:

"Given the terms of paragraph 14 of the Employment Tribunal's decision, dated 25 May 2000 and given the terms of both decisions of the Employment Appeal Tribunal, it was clear to the tribunal that both the areas were not now to be included. In respect of paragraphs 9-15, as referred to above, the tribunal was satisfied that these had been excluded as a result of the Employment Appeal Tribunal decision and that this was an attempt to re-include them, which was inappropriate and improper."

7. It is clear from the earlier paragraphs in that decision that the chairman correctly analysed the application for the amendment as an attempt to bring back into the proceedings for discrimination matters which had been removed as a result of the judgments of the Employment Tribunal at the preliminary hearing in May 2000 and at the full hearing of the appeal in May 2001.
8. Mrs Ayobioj then appealed that decision to the Employment Appeal Tribunal. A preliminary hearing of that appeal was heard by the appeal tribunal on 7th March 2002. The appeal was dismissed for the reasons given by His Honour Judge McMullen QC on behalf of the appeal tribunal. He said that there was no arguable point of law in the appeal to go to a full hearing. The regional chairman had exercised a discretion in refusing the amendment, which was well within the boundaries of reasonable case management and there was no error of principle or other ground on which the appeal tribunal was entitled to interfere with the chairman's discretion. The earlier parts of the judgment set out the background of the proceedings, which I have already summarised. The appeal tribunal refused permission to appeal. Hence this application to the Court of Appeal.
9. The application contained in the appellant's notice sets out grounds of appeal and is supported by a skeleton argument, both of which have been prepared on behalf of Mrs Ayobioj by Mr Fred Edward jnr. of the Cain & Abel law firm. I have read the grounds of appeal and the skeleton argument. I have reached the conclusion that there are no grounds on which this appeal could succeed. An appeal against the decision of the Employment Tribunal is limited to questions of law. In the case of an appeal from an exercise of discretion this court will only interfere if it is shown that there was some error of principle or that the decision was plainly wrong by reason of a failure to understand it or by taking into account irrelevant matters and leaving out of account relevant matters. It is clear from the circumstances which I have summarised that the chairman of the tribunal correctly characterised this amendment as an attempt to circumvent the decision of the Employment Appeal Tribunal at the earlier hearing, that the Employment Tribunal which had first dealt with this matter had correctly struck out parts of the discrimination and victimisation claims as misconceived. As they were correctly struck out, it was inappropriate for the Employment Tribunal's discretion to be exercised to allow them to be re-introduced into the proceedings. The question of whether those allegations should be allowed to be pursued had already been decided and upheld on appeal. The only effect of the application to amend was to delay yet further a case which requires evidence of matters occurring over three years ago. I would repeat what the president of the Employment Appeal Tribunal said in expressing dismay at the long delays in this case as a result of unsuccessful attempts to appeal procedural decisions of the Employment Tribunal.
10. As this proposed appeal has no real prospect of success, I shall refuse the application and urge the parties to proceed as quickly as possible to a hearing on the merits of the race discrimination claim remaining in the proceedings.
Order: Application refused