United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 792_95_1010

Appeal No. EAT/792/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 10th October 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR K M HACK JP

MR W MORRIS

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MR G D WILLS          APPELLANT

CITY OF LONDON POLYTECHNIC          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR G WILLS IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): There are before the Tribunal today two matters which concern the dispute between Mr Wills and his former employers, the London Guildhall University.

We shall deal first with an appeal brought by Mr Wills against the refusal of the Chairman of the Industrial Tribunal at London (North) to grant an application by Mr Wills for leave to amend his Origination Application.

The background to this appeal is this: Mr Wills originally presented his application to the Industrial Tribunal claiming unfair dismissal on 19th November 1992. For several years no progress was made with his complaint. The reasons for that are explained in a judgment given by this Tribunal on 21st July 1995. In that judgment this Tribunal gave reasons for refusing an appeal by Mr Wills against an earlier unsuccessful application by him to amend to his originating application. The amendment dealt with in that judgment was one which Mr Wills had applied to make on 2nd February 1995. He wished to amend his claim for unfair dismissal to add a complaint of sex discrimination in contravention of the Sex Discrimination Act 1975. The Industrial Tribunal refused to grant leave to amend for reasons notified to the parties on 20th June 1995. For the reasons stated in the judgment on 21st July 1995 this Tribunal, at a preliminary hearing, dismissed Mr Wills's appeal on the grounds that there was no arguable error of law in the way in which the Tribunal had exercised its discretion in rejecting his amendment.

This appeal concerns a further application for leave to amend, also dealing with a complaint of sex discrimination. The amendment was submitted to the Industrial Tribunal at London (North) under cover of a letter dated 29th June 1995. The decision on the application was notified to Mr Wills representative, Miss Ohsan of NATFHE, by letter dated 10th July 1995. The letter said:

"The application for leave to amend the Originating Application contained in the Applicant's letter dated 29 June 1995 is refused by the Chairman as it seeks to raise a fresh cause of action."

Mr Wills appeals against that decision. His Notice of Appeal was received in the Employment Appeal Tribunal on 20th July 1995. He states as the ground of his appeal that the amendment which had been refused did not seek to amend the originating action lodged on 19th November 1992, but to add a new cause of action to a case statement as amended on 15th June 1995.

We have spent a considerable time at this hearing discussing with Mr Wills, who has conducted his case in person, the proposed amendment. It is a four page document headed:

"AMENDMENT TO CASE STATEMENT - 58836/92/LN/A

BY ADDITIONAL PARAGRAPH Number 46.

SDA - Section 1(1)(b) -- 29/06/1995"

Under the heading Sex Discrimination paragraph 46, there are eleven subparagraphs setting out his complaint. It is not necessary to read out the matter pleaded there. It is sufficient to comment that paragraph 46 contains a mass of detailed allegations made for the first time in relation to a complaint of sex discrimination. Most significant of all, the proposed new paragraph 46 contains many matters allegedly relating to sex discrimination which are not contained in the previous proposed amendment in paragraph 42. That amendment was disallowed for the reasons mentioned in our earlier judgment.

Mr Wills was asked several times during this hearing why he submitted for the first time on 29th June 1995, allegations relating to alleged sex discrimination which had not been included in the earlier amendment submitted in February 1995. His response to this question, if we understood him correctly, was that it only became evident to him when he was before the Industrial Tribunal that it would be necessary for him to spell out his complaints in greater detail than set out in the first amendment of February 1995. He also explained in detail of how he was unable to make these allegations when these proceedings started in November 1992. He has gone into detail of the High Court proceedings described in the earlier judgment and, of how he only discovered certain facts in those High Court proceedings in 1993 which enabled him to formulate a complaint of sex discrimination. He was unable to formulate the case when he started it, because there were facts of which he was unaware. He has explained how further time passed after he had discovered these facts when attempts had to be made to clarify whether a vexatious litigant order in the High Court would prevent him from pursuing his proceedings for unfair dismissal in the Industrial Tribunal.

We have considered to those explanations, but we are not satisfied that there was any error of law in the Chairman's refusal to grant the amendment. The background to the refusal is that, as with the earlier amendment of February 1995, the allegation of sex discrimination is brought forward over three years after the alleged act, well outside the three months period allowed by the Sex Discrimination Act for bringing a complaint. In our view, in relation to the discretion which a Tribunal has to extend the time for bringing a complaint under Section 76(5), the Chairman of the Industrial Tribunal was justified in concluding that in all the circumstances it was not just and equitable to allow Mr Wills to bring forward a complaint of sex discrimination so long after the events to which the complaint relates.

In our judgment, there is no ground on which this appeal can succeed. The Chairman has exercised his discretion, in relation to the amendment of pleadings, in a way that reveals no legal error by him, either in the interpretation of the Sex Discrimination Act or in the exercise of the discretionary powers.

We add this. We made it clear to Mr Wills that we could not see how he could in any case bring the complaints which are set out in paragraph 46 within the framework of in-direct discrimination, which he seeks to do by the heading to the draft "Sex Discrimination Act - Section 1(1)(b)." Section 1(1)(b) of the 1975 Act makes it unlawful for a person to discriminate against another in-directly by applying a requirement or condition which he applies, or would apply, equally to a person of the other sex, which is such that the proportion of, (in this case) men who can comply with it is considerably smaller than the proportion of women who can comply with it. We were unable to find anywhere in the four page amendment reference to any requirement or condition applied to Mr Wills by the respondent University which would offend against Section 1(1)(b) of the 1975 Act.

In the covering letter of 29th June 1995 Mr Wills said that he was presenting the case under Section 1(1)(b). As revealed in the earlier paragraph of the letter, he was aware that he had to specify a section 1(1)(a) and/or 1(1)(b). He had opted for 1(1)(b). We take into account that Mr Wills is not legally qualified. We add that we are unable to see from the allegations in the draft how he would have a case under Section 1(1)(a). There are no allegations in the draft that, he had been treated less favourably by the University than a woman would have been treated in similar circumstances.

For all those reasons we do not allow this amendment. We agree with the Chairman that Mr Wills is seeking to raise a fresh cause of action, well outside the time for raising complaints of Sex Discrimination. The appeal will accordingly be dismissed.