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 THE BIRMINGHAM EMPLOYMENT TRIBUNALS

		Royal Courts of Justice Strand London, WC2 Thursday, 21st November 2002

1. LORD JUSTICE SEDLEY: Mr Argenio comes before me in person this afternoon to apply for permission to appeal against an adverse decision of the Employment Appeal Tribunal given on 5th September 2002. It dismissed an appeal made by Mr Argenio against an Employment Tribunal decision of 6th March 2001.
2. Mr Argenio was a security officer employed by the first respondent (who, so far as I can see, is the only necessary respondent) from March 1998, and then as a steward from August 1998. On 11th August 1999 he was asked to attend a meeting with his manager and with one of the human resources officials in order to discuss certain concerns which management had about his work and conduct. Near the beginning of the meeting, the two people conducting the meeting asked Mr Argenio whether he was taping the proceedings. It turned out that he was, although he said that he was not. In consequence he was suspended. It is his case that the reason why he was attempting to tape the meeting was to protect his own interests, because English is not his first language and he is, he says, also dyslexic. For these reasons, and also possibly reasons of imperfect comprehension, he not only wished to use a tape recorder but was reluctant to answer questions about it.
3. The consequence, however, of this episode was that a further disciplinary proceeding was initiated, and following it Mr Argenio was dismissed for gross misconduct. The dismissal took effect on 2nd September 1999 and was confirmed on an internal appeal by way of rehearing on 6th October. Within three months, namely on 29th November 1999, Mr Argenio began Employment Tribunal proceedings.
4. It is the form which his originating application took which is the single real legal issue with which I am at present concerned. Box 1 on the form reads:

"Please give the type of complaints you want the tribunal to decide (for example, unfair dismissal, equal pay). The full list is available from the Tribunal office. If you have more than one complaint list them all."

In this box Mr Argenio has written or had written for him: "1. Unfair dismissal. 2. Race discrimination". There then follows in the form space for details of the complaint. These Mr Argenio has set out separately on three pages. For present purposes, it is necessary to quote only one paragraph of the narrative on those pages. Paragraph 5 reads:

"Almost as soon as the meeting started Gary Masters and Personnel Manager Steve Wright started asking me questions about whether I was taping the meeting. I suffer from dyslexia and English is my third language and sometimes I have difficulty in understanding everything that is said to me. Consequently I wanted either to be able to tape the meeting or to have an independent note taker present. At the beginning of the meeting I attempted to tape the meeting in order to protect myself. I would have never thought that the meeting of the 11 August 1999 was going to be a further act of discrimination or victimisation by the NEC group concluding with my dismissal."

The claims (there were other claims as well) were listed for hearing before an Employment Tribunal at Birmingham from 15th to 18th January 2001. On 8th January the applicant wrote to the regional secretary seeking to submit a fresh skeleton argument, which included the assertion that he had been discriminated against by reason of a disability, namely his dyslexia. The Tribunal took the view that this was a new complaint which therefore was well out of time. They dismissed it and declined either to permit amendment or to enlarge time. Under the Disability Discrimination Act 1995 there is a three month time limit for bringing claims. Mr Argenio appealed to the Employment Appeal Tribunal, but it dismissed his appeal in a reasoned judgment.

5. This being an application for permission, I will not go through the two written decisions. It is sufficient for me to say that, in my judgment, there is an arguable point of law in Mr Argenio's favour with a real prospect of success. It is this. The form of originating application for employment tribunals is intended to be simple, not to create an obstacle course on which an applicant embarks at his or her peril. Indeed, the form does not have to be used at all so long as the necessary matters are communicated to the tribunal. If one looks at Harvey, in section T[291] onwards one sees that there is a run of authority which requires tribunals to treat an application as sufficient so long as it demonstrates what the nature of the complaint is. It is in my judgment very fairly arguable that, even though he had not specified disability discrimination in box 1, Mr Argenio had spelt out the facts capable of supporting a claim of disability discrimination in paragraph 5 of his narrative which I have read out.
6. If that is so, then one of two consequences is likely to follow. Either he was entitled, without more, to pursue the claim for disability discrimination before the Employment Tribunal or, if it needed to be spelt out in box 1, it could very possibly have been added without any injustice to the respondents, since the facts upon which it was based had been set out from the start in the narrative part of the application. Even if it was accepted that the explicit addition of disability discrimination took the respondents by surprise, one would have thought that an adjournment would cope with it. The important thing is that Mr Argenio has in my view a respectable argument that the allegation was not being made out of time.
7. There are other things that Mr Argenio feels aggrieved about. Indeed, if one reads the considerable volume of paper that he has generated in recent days in the run-up to this appearance, one would think that the grievances are never- ending. Those that he has spelt out today are his sense that there was improper conduct on the part of the Employment Tribunal and, to a lesser extent, the Employment Appeal Tribunal. When he describes what the improper conduct was it amounts, at its highest, to no more than that they got things wrong. No legal system claims to be infallible. That is why we have appeals. Simply getting something wrong is not a separate head of misconduct. The real issue that Mr Argenio wants to raise, which is that he should not have been prevented from claiming disability discrimination, is one that he will now be able to raise on appeal before a full court. I do not say that he will necessarily succeed, and he must bear the risk on costs that an appellant takes in this court if he should lose. He may have permission to appeal on this single ground.
8. I have indicated to him that he needs legal representation in order to get his submissions focussed and put in their best light. He tells me that he has made efforts without success. That does not entirely surprise me because Mr Argenio does in some respects, I think, tend to try to prove too much and thereby give people the feeling that he is against the world. But that will not be so in this appeal. I hope that, through the good offices of the Civil Appeals Office, if he cannot get legal aid, some form of pro bono representation may be found to deal with what is, in the end, a short point - one which I do not think will need to detain the court for more than half a day. With these considerations in mind permission to appeal is granted.

Order: Application for permission to appeal allowed as per judgment.