United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 504_93_0505

Appeal No. EAT/504/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5th May 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR E HAMMOND OBE

MISS A MACKIE OBE

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MR M IQBAL          APPELLANT

ROYAL FREE HAMPSTEAD NHS TRUST          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR M IQBAL

(In Person)

For the Respondents MR N J TURNER

Director of Human Resources

Royal Free NHS Trust

Pond Street

Hampstead

London

NW3 2PG


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by Mr M J Iqbal against a decision of the Industrial Tribunal held at London (North) on the 6th May 1993.

It is impossible to understand the decision or the appeal against it without setting out as simply as possible the way in which this entanglement has come about. Mr Iqbal was employed as a Medical Technical Officer in the Electronic Section of the Medical Physics Department at the Royal Free Hampstead NHS Trust Hospital, Pond Street, from 1990 until he was dismissed on the 13th April 1992.

On the 7th July 1992 he presented an Application to the Industrial Tribunal against the Royal Free Hampstead NHS Trust stating in Box 1 that the complaint he wanted the Tribunal to decide was unfair dismissal. In Box 10, where he was asked to give full details of the complaint, he stated:

"I was dismissed while I was officially ill. Dismissal was probably not entirely on grounds of alleged excessive illness but also on grounds of alleged under performance of work and non cooperation at work . . ,"

matters which he totally disputed. He stated in Box 10:

" My dismissal, I believe was because of my insistence upon equal opportunity to be provided to me. I believe it was because of sustained discrimination and or bias subtly practised against me within the section which started to manifest itself after the formation of Trust status."

The NHS Trust entered an appearance to that complaint.

The matter came before the Industrial Tribunal after the NHS Trust had, in September 1992, heard an appeal by Mr Iqbal against the decision to dismiss. We understand from the hearing today, at which Mr Iqbal has appeared in person, that there is a dispute, as far as he is concerned, as to whether there was such an appeal. It is not a matter that needs to be investigated today.

The NHS Trust case was that Mr Iqbal was advised on the 23rd September that his appeal had been dismissed. The case before the Tribunal then proceeded.

An Interlocutory Hearing took place on the 16th December 1992. The Tribunal noted that the complaint was of unfair dismissal, but that in Box 10, paragraph 6, of the Originating Application, the statement had been made by Mr Iqbal that he had suffered discrimination or bias. In those circumstances the Chairman directed in a letter of the 23rd December 1992 that, if Mr Iqbal wanted the Tribunal to consider a complaint of racial discrimination, he must by the 1st January 1993, apply to amend his application, with the proposed amended application in support, giving details of unlawful discrimination on the grounds of race, with date and full details of each allegation. The Chairman also ordered Mr Iqbal to supply Further Particulars of paragraph 6 of Box 10 on or before the 1st January 1993. He refused other interlocutory applications for discovery but said they might be renewed at a later stage in the event that the amendment was made to allege racial discrimination.

At that time there was in existence only one set of proceedings, what may be called the unfair dismissal proceedings, containing also complaint of discrimination. The proceedings were given the case number 34655.

What happened next has, at least in Mr Iqbal's view, created confusion that he thinks may be detrimental to his case. He sent in to the Industrial Tribunal a new printed form of application, an IT1 form, which he had signed and dated the 1st January 1993. In Box 1, where it states the type of complaint that the Tribunal is to decide, Mr Iqbal filled in:

"Unlawful Discrimination under Race Relations (Amendment of Application 34655/92/LN/C)"

That form was received in the office of the Industrial Tribunal on the 4th January 1993 by fax. The application was registered and assigned a new number 1257/93. The NHS Trust entered a further appearance to that document in which they stated they intended to resist the application. The heading on it was Case Number 34655, the only number of which the NHS Trust was aware for Mr Iqbal's application. In that document the NHS Trust set out their reply to the points raised under Section 10, what they described as "Addendum 2" dated 1st January 1993.

The Chairman directed that, although a separate and new number had been assigned to the form which was received on 4th January 1993, and that there had been a separate Appearance entered by the NHS Trust, there should be a Preliminary Hearing to consider Mr Iqbal's application for leave to amend the Originating Application and whether or not there was jurisdiction to consider it. No further action was taken on the new application as a separate application.

Mr Iqbal applied for postponement of the Preliminary Hearing. His first application for a postponement was granted. On the 22nd April he applied for a further postponement, which was refused. That was for a postponement of the hearing that ultimately took place on the 6th May 1993. At the commencement of that hearing Mr Iqbal renewed his application for a postponement. That was refused. The Tribunal pointed out that they were not concerned at that stage to try any of the issues in dispute. They were only concerned to decide whether Mr Iqbal was permitted to pursue certain allegations of racial discrimination. In order to deal with that matter it was not necessary to incur the delay that would occur from a further postponement.

The Tribunal considered the proposed amendment put forward by Mr Iqbal and the Tribunal's jurisdiction to deal with the matter. The Tribunal said:

"that a distinction has to be drawn between those matters which occurred before the termination of his employment (including the decision to dismiss), and those that occurred later. In relation to the first category, the Tribunal has to consider, among other matters, whether the claim of racial discrimination arises out of the same or similar facts to those already alleged, and the effect of section 68 [time provisions] of the Race Relations Act 1976. In relation to the second category, we considered that it was not open to the Applicant [Mr Iqbal] to amend the originating application to allege events which took place only after the application was presented. Those allegations also raise the question of whether, as a matter of law, actions taking place after the termination of an employee's employment are capable of constituting discrimination in the employment field and the possible effect of section 68 in relation to the time of presentation of the second application.

8 Since it is possible that the Applicant might be able to raise the allegations in the second category by way of a fresh application, even if leave to amend his originating application in respect of those matters was refused, we considered that the appropriate course was to direct that the application which was registered fortuitously [the 1257 application] should, in fact proceed, as a separate application; although with the intention that it should be consolidated with the earlier application. We took the view that the appropriate way of dealing with the issues raised by the allegations in the second category was by way of a preliminary hearing."

The Tribunal decided they should proceed in the following way. They directed that case number 1257 was to proceed as a separate application. They directed that a preliminary hearing in that case should be held to determine two preliminary issues. First, whether the Tribunal had jurisdiction to consider acts alleged to have taken place after Mr Iqbal's dismissal and if so, whether, having regard to the time limit contained in Section 68, (a time limit of three months), the Tribunal had jurisdiction to consider the Applicant's complaint of racial discrimination.

The hearing on the unfair dismissal application, (number 34655), was adjourned to take place at the same time as the determination of the preliminary issues directed in case 1257.

Mr Iqbal appealed against that decision by Notice of Appeal dated 28th June 1993. He complained in that Notice of Appeal:

"That the preliminary hearing ordered under original application case no.34655/92/LN/D on 15.1.93 was in contradiction to the same application having been amended and having been accepted and registered as Case No. 01257/93, by Central Office of Industrial Tribunals"

When the matter came before us today Mr Iqbal appeared in person. He put before us two documents Part 1 and Part 2 containing his outline argument. We have listened to Mr Iqbal's submissions on the appeal. We have had some difficulty in understanding precisely what point of law Mr Iqbal submitted was raised by his appeal against a decision which makes no substantive determination of the merits of any of his claims. It only deals with the procedure which should be adopted in relation to the application for unfair dismissal and race discrimination.

At one point Mr Iqbal made an application to us that this appeal should be postponed so that he can obtain the benefit of further time to prepare his case and to get legal advice. We refuse the application to postpone the appeal. The appeal is against a decision taken almost a year ago to the day. Mr Iqbal has had plenty of time in which to prepare the appeal and to seek legal advice. We agree with him to this extent, that it is clear from the papers that he submitted, and from the submissions that he has made, that he would benefit from obtaining legal advice to explain to him the procedures followed in the industrial tribunal and to give him help in presenting his case when the matters which have been directed by the Industrial Tribunal come up for hearing. It is possible to obtain legal advice from a Citizens' Advice Bureau or from the Free Representation Unit without incurring charges. We would advise Mr Iqbal to consider seeking advice from those quarters.

As to this appeal we have heard submissions also from Mr Turner on behalf of the NHS Trust. We are satisfied that this appeal does not raise any question of law on the decision made by the Industrial Tribunal on the 6th May and contained in the Full Reasons notified to the parties on the 18th May 1993. It is a matter of discretion as to how the Tribunal decide to deal with Mr Iqbal's complaints. They have not rejected his complaints in his applications. They have simply decided that the second matter, which Mr Iqbal says is a matter of amendment, should proceed as a separate application but it is to be heard at the same time as his initial application for unfair dismissal. When the two come on together the Tribunal will decide as a preliminary issue the question of jurisdiction and time limits. There is no error of law in any of those directions. There has been no decision against Mr Iqbal on the merits of his claims. The Tribunal has quite rightly directed that, before they proceed to deal with the merits of his claims, they must first of all settle the disputes there may be about jurisdiction and time limits. The Tribunal's order was correct. We shall dismiss this appeal and we will now hear any submissions there are on any other directions that are needed.