United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1378_95_0503

Appeal No. EAT/1378/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5th March 1996

Before

THE HONOURABLE MR JUSTICE HOLLAND

MR D G DAVIES

MR K M YOUNG CBE

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MISS M WILLIAMSON          APPELLANT

MESH COMPUTERS PLC          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR T KIBLING

(of Counsel)

Brent Community Law Centre

389 High Road

Willesden

London NW10 2JR

For the Respondents THE RESPONDENTS

NEITHER BEING PRESENT NOR REPRESENTED


 


MR JUSTICE HOLLAND: This appeal comes before this tribunal in the following circumstances. On 12th June 1995, the applicant, Michele Williamson, had her employment with the respondents, Mesh Computers PLC, terminated. On 12th July 1995, she initiated an application to the Industrial Tribunal for London (North), alleging unfair dismissal and "direct discrimination". The IT1 as completed by herself, inevitably lacked legal precision.

The respondents having indicated an intention to defend the complaint, on 6th October 1995 a fresh IT1 was submitted, this time drafted by solicitors acting for the applicant. They set out four complaints for decision:

"1. Race Discrimination contrary to s4 Race Relations Act 1976

2. Sex Discrimination contrary to section 6 Sex Discrimination Act 1975 and the Equal Treatment directive.

3. Unfair dismissal contrary to s60 Employment Protection (Consolidation) Act 1978.

4. Unfair dismissal contrary to s57 of the Employment Protection (Consolidation Act 1978."

Yet further, they sought to bring the complaint, not only against Mesh Computers Plc, but also against two named individuals, Michele Baker and Andzerjt Bania together with the Secretary of State for Employment.

The matter came before the Chairman of the Industrial Tribunal for a preliminary hearing on 20th October 1995. In the course of that hearing the Chairman refused to allow the amendments so far as such embraced the joining of Michele Baker, Andzerjt Bania and the Secretary of State for Employment.

On 24th October 1995, a letter was written setting out the decision. That letter seemingly went astray. What then happened was that the solicitors for the applicant wrote again to the Industrial Tribunal and by a letter of 16th November 1995, on behalf of the Chairman, his decision, so far as it related to the joinder of the named individuals was spelt out with greater clarity. It is against that decision as expounded in that letter that this appeal is mounted.

What the Chairman said, as reported in the letter was as follows:

"2 The Chairman is not prepared to alter the order made at the Directions Hearing. The substance of the original allegation was that the Respondent had not dealt with the Applicant's complaints of discrimination against her. If that is correct section 32(3) will not avail the Respondent. If the Tribunal do not believe the Applicant on that allegation, it is very unlikely that they would believe other allegations she makes. Accordingly the Applicant will not be prejudiced by proceeding against the Respondent above.

3. The Chairman considers that new parties should only be added after the time limit has expired where there is strong reason for doing so. That is not the case here. The unfairness of putting the proposed Respondents in jeopardy outside the time limit is greater that any marginal unfairness to the Applicant which may exist."

On behalf of the applicant, Mr Kibling in submissions, to which this tribunal would pay tribute for their clarity and force, submits in essence that the Chairman misdirected himself as to law. He applied the wrong test, and if necessary, he would argue that the decision was "Wednesbury" unreasonable.

He further helped us by drawing our attention to the decision of this tribunal in Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650. He pointed out that at 656, this tribunal set out the way in which a tribunal should approach an application to amend a complaint by adding or substituting respondents. We need not read out the initial steps as set out by Sir John Donaldson giving the judgment, but it is helpful to look at the latter two steps that is those that he numbered (6) and (7).

"(6) In deciding whether or not to exercise their discretion to allow an amendment which will add or substitute a new party, the tribunal should only do so if they are satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause reasonable doubt as to the identity of the person intending to claim or, as the case may be, to be claimed against.

(7) In deciding whether or not to exercise their discretion to allow an amendment, the tribunal should in every case have regard to all the circumstances of the case. In particular they should consider any injustice or hardship which may be caused to any of the parties, including those proposed to be added, if the proposed amendment were allowed or, as the case may be, refused."

Dealing with first such consideration as numbered (6), this tribunal is entirely content to deal with this appeal on the basis that the failure to join the two named individuals as parties to the original complaint was a genuine mistake, reflecting the fact that at that stage the applicant was unrepresented. It is, however, with the further factors as set out in paragraph (7) that the Industrial Tribunal should have been seized and it is such which have concerned this tribunal in its approach to this appeal.

Turning then to the appeal and the way it is put, it is necessary first to set out the short factual contentions of the applicant. They are that over a significant period of time prior to the termination of her employment, and in particular from the beginning of 1995, she was subject to racial slurs and other discriminatory tactics, in particular on the part of the two named individuals. Her further case is that as and when she complained about this behaviour to the management of the respondents, although there were promises made that something would be done, nothing in the event was done. There are other factors which come into her account which bear upon (as she would contend) the termination of her employment; we need not burden this judgment with reciting them, those other factors are said to justify the other heads of complaint.

Second, it is necessary to identify the factors which should have affected the Chairman's exercise of discretion to see whether he correctly directed himself on the lines of paragraph (7), to see further whether his discretion was, as is alleged, perverse. To this end it is convenient to set out the balance as it appeared to this tribunal and then to compare the Chairman's approach. We do bear in mind the point made by Mr Kibling that this is not a re-hearing and that what we are concerned with is the exercise of discretion by the Chairman, the way he approached it and it is not for us to substitute our discretion for his, save to the extent that we may think that he is "Wednesbury" unreasonable. Having accepted that submission on the part of Mr Kibling, it is, nonetheless, practicable in this case for us to proceed in the way specified, with Mr Kibling's warning to hand.

Turning then first to the detriment to the two named individuals, Michele Baker and Andzerjt Bania, that will arise if the amendment be allowed, we identify such as arising in two ways. First, any such amendment will involve their joinder substantially out of time. Section 68 Race Relations Act 1976 specifies a three month period in which proceedings should be brought. It however specifies in 68(6):

" A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

The first detriment that is plainly to be discerned, is that any such amendment would involve the presentation of a complaint against each of these individuals well after the termination of the period of three months, and the only justification for it would be a finding that that course be "just and equitable" Even allowing that any such amendment was "just and equitable" (sed quaere, why?), it would involve each of these individuals belatedly being put in jeopardy. Jeopardy, first and foremost in terms of inconvenience and stress, jeopardy quite possibly in terms of costs; and as the applicant would say, jeopardy in terms of damages.

One then turns to the detriment to the applicant if the amendment be not allowed. As to this, when the matter was initially put before us, it appeared from Mr Kibling's excellent skeleton argument, that what there was a concern about was the situation that would arise if the Industrial Tribunal found that either or both of these individuals had behaved in the way complained, but not in the course of the employment. In short, what the initial concern was that the situation which arose in the case of Tower Boot Co Ltd v Jones [1995] IRLR 529 should if possible be avoided by shrewd manoeuvring on the part of those advising the applicant so that dismissal of a complaint against the employers could still leave relief against the individuals. Ultimately, after Mr Kibling had valiantly dealt with questions as to the basis of any complaint against the named individuals, that particular argument was abandoned. What, however, remained was the further and following point. If one turns to Section 32 of the Act, one finds in 32(1):

"(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act (except as regards offences thereunder) as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval."

...

"(3) In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description."

Turning then to Section 33:

"(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description.

(2) For the purposes of subsection (1) an employee or agent for whose act the employer or principal is liable under section 32 (or would be so liable but for section 32(3)) shall be deemed to aid the doing of the act by the employer or principal."

Based upon those statutory provisions, what is concerning those advising the applicant as the potential detriment from the present state of the proceedings is as follows. They are concerned that if having been proved by the applicant that either/or both of the named individuals were guilty of discriminatory acts in the course of their employment (that is so as to bring the situation within 32(1)), the respondents may then mount a successful defence, as is permitted, by Section 32(3). In that situation unless there is either or both of the named individuals as parties, there can be no further relief. If, on the other hand, they are parties, then by Section 33(2) they are deemed to be aiding the doing of an act by an employer and thus by Section 33(1) they are guilty of an unlawful act. With such an unlawful act, there is then a basis by reference to Sections 53 and 54 for relief against that named individual.

Thus far then, we have identified the essential point currently being taken by Mr Kibling and immediate comment is called for. First, there is no defence yet raised under Section 32(3) by the respondents. In particular, none such appears in a letter of 29th January 1996 in which they set out an extensive response to the applicant's allegation. Indeed, their essential case appears to be, "yes, there were complaints to them, but they were not racially based and in great substance they were against the applicant herself." Yet further, there is the additional problem that the situation envisaged by Mr Kibling does appear to involve very subtle findings of fact that is, findings of fact that his client is to be accepted in so far as she is making complaints against either/or both of the named individuals, but not to be accepted in so far as she complains about the reaction of the respondents to those complaints. Thus it is that this Tribunal identifies the balance of considerations and their respective weight as it appears to it.

When we turn back to the terms of the letter of 16th November 1995, it would seem to this tribunal, that the Chairman has identified precisely the same balance of interests. Thus it is, first of all dealing with the detriment to the named individuals if the amendment be allowed, he talks: "of the unfairness of putting the proposed respondents in jeopardy outside the time limit". Then turning to the detriment to the applicant if the amendments be not allowed, he asserts "The substance of the original allegation was that the Respondent had not dealt with the Applicant's complaints of discrimination against her. If that is correct section 32(3) will not avail the Respondent. If the Tribunal do not believe the Applicant on that allegation, it is very unlikely that they would believe other allegations she makes." In essence, he too points to the subtle findings of fact necessary to found a situation in which the Applicant would suffer a detriment.

We can find absolutely no basis at all to uphold this appeal. In the judgment of this tribunal the Chairman applied the law correctly and his discretion in preferring the interests of the named individuals to those of the applicant in this particular issue, cannot, as we see it, be faulted as "Wednesbury" unreasonable. Granted that we should not go further than that, but if we had to, we would be for saying we entirely agree with him. Thus it is for the reasons that we have set out this appeal fails.