England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM - The first decision is a judgment of Underhill J
(sitting alone) dated 13 December 2007. The second is a judgment of the
President of the EAT, Elias J (also sitting alone) and dated 20 February 2008.

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/10/2008

Lord Justice Wall:

1. On 29 September 2008, the applicant, Mr. Anthony James, orally renewed two applications for permission to appeal, both of which had been refused on paper on 30 July 2008 by Pill LJ. Both applications related to decisions of the Employment Appeal Tribunal (the EAT). The first decision is a judgment of Underhill J (sitting alone) dated 13 December 2007. The second is a judgment of the President of the EAT, Elias J (also sitting alone) and dated 20 February 2008.
2. Given the state of the list on 29 September, I took the view that the fairest course in the time available was to allow Mr James to develop his submissions, and then to reserve judgment. One of the advantages of this course has been that, during the period over which this judgment has been reserved, it has enabled me to look more thoroughly at the eight lever arch files of documents which Mr. James has provided.
3. I propose in this judgment to follow the course which Mr. James adopted in his submissions, namely to begin with the application for permission to appeal against the order of Underhill J and then to consider the judgment of Elias J. A few words of introduction are, however, necessary, to put the two applications in context.
4. Mr. James is a litigant in person. He describes himself as "a Black man of African descent". In all, he brought five sets of proceedings against the respondent, his former employer. Four of the five claims were brought when Mr. James worked for the respondent as a customer services representative, and the fifth claim was brought on 30 June 2006, following the cessation of Mr. James' employment. At the centre of each claim are allegations of race discrimination made by Mr. James against his employer. Mr James told me that he only brought this number of claims because there had been delay in the Employment Tribunal (ET) and because the ET had refused to allow him to amend.
5. The manner in which Mr James presented his claims has given rise to a great deal of interlocutory litigation, in some of which Mr. James has been successful – see, for example the decision of this court in Blockbuster Entertainment Limited v James [2006] EWCA Civ 684, [2006] IRLR 630 in which Brooke, Sedley and Wilson LJJ upheld the decision of the EAT (Elias J presiding) allowing Mr. James' appeal against the decision of the ET to strike out Mr. James' claims.

The application for permission to appeal against the decision of Underhill J

6. The application for permission to appeal against the decision of Underhill J is part of the interlocutory dispute and derives from two of the claims presented by Mr. James. The claims in question are dated 28 November 2005 and 30 June 2006 respectively. The respondent took the view that the manner in which the claims were set out in the Forms ET1 was unsatisfactory, and Ms Potter, a chair at the London Central ET ordered Mr. James to provide further information. In summary, this in turn led to argument over two questions: (1) whether in relation to the specific acts complained of the grievance procedure under Part 2, Schedule 2 of the Employment Act 2002 had been complied with; and (2) whether the specific acts in question could be treated as particularisations of the original claims, or whether they were to be treated as fresh claims which could only be allowed to proceed if introduced by amendment.
7. On 11 December 2006, Mr. James produced a 20 page schedule identifying in all some 96 alleged acts of discrimination, and a pre-hearing review to determine the matters on which Mr. James was to be allowed to proceed took place before an ET chair, Mr. M. Ryan on 22 December 2006. As Mr. Ryan explains, it was not possible to finish the hearing within the day set aside for it: the result was a reserved decision dated 26 January 2007. It was that decision which Mr. James appealed to Underhill J and which he now seeks to challenge in his court.
8. In summary, Mr. Ryan's decision was to allow only 8 of the 96 claims to proceed. Of the remaining 88, the majority were disallowed as no prior grievance had been lodged, and some were disallowed because they had not been included in the ET1 forms, and Mr. Ryan concluded that Mr James should not be given leave to amend.
9. During the period over which this judgment has been reserved, I have taken the opportunity to re-read both the Chairman's decision and the judgment of Underhill J. What the Chairman did was to divide Mr. James' allegations into three groups. The first group comprised those which had not been the subject of a written grievance under the Employment Act 2002. Applying the principles set out in the decision of the EAT in Canary Wharf Management v Edebi [2006] IRLR 416, Mr. Ryan rejected Mr James' argument that the individual acts by the respondent were part of a larger and long running attempt by it and its employees to entrap him into acts of misconduct - or at least conduct that could thus be characterised - and thereby to provide the means to discipline him or to dismiss him from his employment. Thus the individual incidents, Mr. James had sought to argue, were all direct discrimination, victimisation and harassment on racial grounds.
10. Mr. James advanced a similar argument before me, arguing, by analogy with the decision of this court in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96, that the claims were over-arching and represented continuous discrimination over a period of time.
11. The second group of allegations considered by the Chairman were those in which Mr. James had identified a document but where the respondent contested the proposition that the document set out Mr. James' grievance.
12. The third group comprised allegations in relation to which Mr. James required permission to amend. It is, I think, fair to say that in relation to both group 2 and group 3, Mr. James sought to advance the "over-arching" argument.
13. As I have already indicated, the Chairman, relying on the Employment Act 2002 and Canary Wharf Management v Edebi (supra) rejected Mr. James' argument in relation to the first group of allegations, which he disallowed in their entirety, commenting, at paragraph 8.5 of his reasons:-

Applying these principles, (Mr James') argument is, in my judgment, fatally flawed. Step 1 requires a grievance to be set out in writing and sent to the employer. If (Mr James') argument were correct then a generalised allegation could suffice to enable the Claimant to raise matters in his Claim that were never even within the employer's contemplation even at the later stages of the internal grievance process.

14. In relation to the second group, the Chairman went through the allegations individually explaining in each case (with the exception of allegation 28) why he was rejecting them.
15. Finally, in relation to the third group, the chairman, basing himself on Selkent Bus Company v Moore [1996] IRLR 661 explained why he was granting permission to amend in some cases and not in others. In the course of that explanation, the Chairman made the following comments:-

21.4 It is clear that Mr. James objects most strenuously to the Tribunal requiring him to particularise his allegations. As he said in his submissions of Ms Potter's order which led to the completion of the Schedule, "At a hearing on Monday 27 November 2006, the Claimant was again requested quite unreasonably to provided a further copy of further and better information of the employment tribunal claim." Mr. James is entitled to take that view. He is entitled to challenge any order or decision of the Tribunal. However, the Tribunal takes claims of discrimination extremely seriously. They are serious if they are valid claims, for then a claimant deserves to have the wrong done to him or her stated and addressed by an order for compensation. They are equally serious if the claims are without merit, for then unjustified allegations have had to be faced and answered. It is because such allegations are so serious and require such assessments that parties are required to be specific about the allegations they are making and the nature of the discrimination alleged.

16. Mr James was dissatisfied with Mr. Ryan's adjudication, and appealed his decision to Underhill J. Having set out the procedural history and the relevant statutory provisions of the 2002 Act, Underhill turned to the first group of allegations, namely those which had not been the subject of a written grievance under the Employment Act 2002. Having referred to Mr. James' submission based on Canary Wharf Management Ltd v Edebi, the judge commented:-

in a case of this kind, where the (ET) had been presented with an unsatisfactory claim and had put in place a careful procedure designed to identify the issues, the Chairman could not in my view be criticised for holding (Mr James) to it. However, he preferred to address the argument as a matter of substance and held that it was necessary that each act of discrimination now sought to be relied on should have been specifically identified as the subject matter of a written grievance. In my view, that must be right. Flexibility as to the from in which the grievance is presented is one thing, but the policy behind these provisions clearly requires that the employer must have had the opportunity to deal as part of the grievance process with the actual act or omission complained of, and that requires that it should have been sufficiently identified. The Chairman found inevitably that that was not the case. I can see nothing wrong in law in his conclusion.

17. Underhill J then went on to reject three arguments advanced by Mr. James in relation to the first group of allegations. The first was Mr James' attempt to apply the "just and equitable" rule in section 68 of the Race Relations Act 1976 to them. However, as the judge pointed out, section 68 relates to limitation, and the Chairman had not rejected any of the allegations on limitation grounds.
18. Mr. James' second argument was that the right time for a detailed elaboration of his complaints was at the meeting required by paragraph 7 of Schedule 2 of the 2002 Act. Mr. James complained that no such meetings had taken place. Underhill J rejected this argument on the simple basis that step 2 could only take place if Mr. James had complied with step 1 which the Chairman found he had not.
19. Mr. James' third argument was that he had submitted grievances in the form of his responses to the respondent's request for further and better particulars. The judge rejected this argument on the basis that section 32(2) of the 2002 Act requires the complaint in question to have been lodged prior to the issue of proceedings. The judge could see that such complaints could be introduced by amendment into otherwise valid proceedings, but he could not conceive that it would be appropriate to take that course simply because the complaints in question had been raised by way of pleadings in the case itself.
20. Accordingly, Underhill J rejected Mr. James, arguments in relation to the first group of allegations.
21. Underhill J thus turned to the second ground of allegations identified by the Chairman, those in which Mr. James had identified a document but where the respondent contested the proposition that the document set out Mr. James' grievance.
22. The judge dealt firstly with a group of allegations in which the document to which Mr. James referred did not "generally correspond either to the document in the Potter schedule (a reference to an earlier order by a different ET Chair) or to any document discussed by the Chairman in his judgment". In these instances the judge did not see how Mr. James could get any argument off the ground.
23. The judge then examined in detail paragraphs 9.2, 9.3, 9.4, 9.7, 9.8 and 9.10 to 9.12 of Mr. Ryan's judgment before turning to the third group, namely those allegations in relation to which Mr. James required permission to amend. He recorded that the Chairman had divided the pleaded allegations into two groups according to whether or not they predated 31 October 2005, that is to say 28 days before the presentation of the 4^th claim by Mr. James on 28 November 2005. The Chairman had refused permission to amend in relation to allegations outside the limitation period on the ground that they could and should have been included in the original pleading and that as a consequence there had been "extreme" delay. The judge could see nothing in law wrong with that as a discretionary, case management conclusion. The judge then set out paragraphs 21.3 to 21.6 of the Chairman's reasons, which I will not repeat.
24. However, in relation to allegation 95 (an allegedly discriminatory failure properly to supply Mr. James with a P60) the judge took the view that on the logic of the Chairman's reasoning it was arguable that he should have given leave to amend to include the allegation since it was alleged to have occurred on 10 October 2006, the earliest date on which fresh proceedings could have been instituted was 21 November 2006 (28 days after the grievance had been raised) a date which had plainly passed by the time the Chairman heard the matter in December 2006. On this one point, therefore, Underhill decided that Mr. James had an arguable point, and he directed that the appeal should proceed on that basis. My understanding, however, is that the appeal has not been prosecuted. No doubt this is at least in part due to the fact that Mr. James' substantive applications commenced in the ET on 1 March 2007.

Mr James' Grounds of Appeal against Underhill J's order

25. These read as follows:-

1. ET erred in law in that no full hearing was had during the Ryan Tribunal. EAT erred in law in following Ryan's decision.

2. ET Ryan failed to act within the law in relation to the dispute resolution.

3. Notes signed during investigations are valid as complaints within the dispute resolution ET and EAT erred in stating that Claimant had not signed the notes

4. Complaints served in Further and Better particulars are in compliance with the Dispute Resolution.

5. ET and EAT erred in law by not considering 4 above

6. Claimant not given a fair hearing.

26. In oral argument before me, Mr. James made a number of additional points. He repeated the "over-arching" argument and relied on Hendricks v Commissioner of Police for the Metropolis. He repeat a number of his criticisms of the ET, notably its refusal to allow him to amend. He submitted that he had followed the grievance procedure and that the ET had been wrong to find to the contrary. He made the point that the evidence showed he had indeed signed the notes, and thus had complied with the procedure. He argued that the five claims straddled various different jurisdictions and that the Tribunal could and should have dealt with them. By the time the allegations came before the Ryan Tribunal, the 28 day time frame had been met in relation to a number of them – in particular, allegations 95 and 86 were linked. One related to the failure to provide a Form P60: if that was to be admitted, the failure to investigate the complaint should also have been included. In essence the exclusion of the overwhelming majority of the allegations was perverse.

Discussion

27. I have considered Mr. James' application with care. It is, of course, trite law that in any application to this court, the function of this court is to see whether or not the ET committed an error of law, and then to decided whether or not the EAT has corrected it.
28. On the first group of allegations, Mr. James' case seems to me unarguable. The Chairman looked at the allegations and found that the provisions of the 2002 Act had simply not been complied with. Underhill J reached the same conclusion, for the reasons he gives. I, too, reach the same conclusion. This part of the appeal is quite hopeless.
29. As to the second group of allegations, the Chairman seems to me to have gone through them carefully and reached conclusions on them which were plainly open to him. Mr. James plainly does not agree, but that is not the test. The test is whether or not the Chairman has made an error of law. Underhill J did not think he had; nor do I. This aspect of Mr. James' appeal is, likewise, without merit.
30. On the third group of allegations, Underhill J reached the conclusion that the Chairman had, arguably, made an error in relation to allegation 95 sufficient to require the judge to allow Mr James' appeal to proceed on the point. In this respect, it seems to me, the judge was correct. To anticipate an argument which Mr. James advanced to me in relation to the application for permission to appeal against the decision of Mr. Elias, I agree with Mr. James that an inappropriate exercise of judicial discretion can be sufficient to vitiate a judge's decision, as, of course, can findings of fact for which there is no evidential basis. Mr. James relied in this respect in particular on CPR 52.11(3) and the authorities cited in the note to the current edition of volume 1 of the White Book (Civil Procedure).
31. In my judgment, however, CRP 52.11(3) is not in play here. I reject any suggestion that Mr. James did not have a fair hearing before Mr. Ryan. It is clear to me that in difficult circumstances, Mr. Ryan took a sensible course which was agreed to by Mr. James (see paragraph 5 of the reasons). In paragraph 21.4 of his reasons (which I have set out above) Mr Ryan records Mr. James' attitude, and the reasons why particularity is required. He emphasises the seriousness with which the ET takes allegations of race discrimination. I see nothing in his decision to contradict the attitude which he describes in paragraph 21.4. In so far as it is arguable that he may have fallen into error, he has been corrected by the judge. In my judgment, it is quite impossible to describe his conclusions as perverse.
32. I have reached the clear view that an appeal against Underhill J's order would stand no reasonable prospect of success, and the application for permission to appeal against it will be refused.

The application for permission to appeal against the order of Elias J

33. I can, I think, take this more shortly, because Mr. James' application for permission to appeal followed a substantive hearing of his claim in the ET which, according to the front page of the ET's reasons lasted for some 21 days followed by the ET spending 7 days in chambers considering its decision; a decision which runs to some 322 paragraphs over approximately 77 pages of single spaced A4 typescript.
34. Inevitably, such a decision is largely fact based and, of course, questions of fact are for the ET, not the EAT or this court, unless it can be demonstrated that the ET made findings which were not open to it – see CPR 52.11(3) to which reference has already been made.
35. The first point which Mr. James took at the oral hearing before me was to invite my attention to paragraph 71 on page 68 of the reasons, and to a finding by the ET that a letter of 14 June 2002 produced by Mr. James was not genuine. Mr James went on to argue from this that this finding had fixed him in the ET's mind as unreliable, and that their perception of him was not merely distorted but biased. I was also referred by Mr. James to the manner in which the ET dealt with the evidence of Mr. El-Hawary. Mr James further made a number of complaints about the behaviour of the ET, including the choice of the Chairman to hear his claims, the ET's refusal to order the production of CCTV material and its decision to allow the respondent to put in its responses to his claims three days late.
36. In the period over which this judgment has been reserved I have, of course, re-read Mr. James' grounds of appeal, as well as the decision of the ET and of Elias J. I entirely agree with Elias J that there is no evidence either of bias or of racism in the ET, two of the members of which, as they explain, came from ethnic minority communities. Like Elias J, I find no error of law in the ET's approach. To the contrary, the ET did what ETs up and down the country have to do day in and day out, namely make assessments of the credibility and good faith of the people in front of them.
37. The ET formed a highly adverse view of Mr. James – see in particular paragraph 312 et seq. I do not propose to set these paragraphs out. It is, I think, sufficient for me to record that in my judgment, and on the material available to me, these were conclusions which it was open to the ET to reach. In no sense can they be described as perverse or amounting to an error of law.
38. I fully understand that when a litigant such as Mr. James has put a great deal of effort into a claim, it is an easy response, when the claim is rejected, to blame the Tribunal. However, Mr. James would be very unwise to do so. There is no evidence that any of the Tribunals in front of whom Mr. James has appeared have been either racist or biased. Indeed, in my judgment, no racially biased tribunal would hear a claim over 15 days. I also note that Mr James' success in this court on 25 May 2006 did not prevent him writing a letter to the court which began: "I fully agree that the British Judicial System seems to be managed by a Racist, religious, political, mason cabal".
39. In my judgment no point of law arises on Mr. James' appeal against the decision of Elias J. The ET made no error of law: its reasons are not perverse, and we are many miles from CPR 52.11(3). Had the ET not dealt with all the allegations on their merits the might have been a Hendricks v Commissioner of Police for the Metropolis argument, but for the reasons Elias J gives that argument does not run.
40. In my judgment, this part of the case turns purely and simply on its facts, and the simple fact of the matter is that the ET, as it was entitled to do, found against Mr. James. It follows that an appeal against Elias J's decision would stand no reasonable prospect of success, and Mr. James' application for permission to appeal will be refused.
41. In my judgment, therefore, both applications for permission to appeal are without merit and will be refused.