United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A JACOBS (Representative) Oriwu Advice Centre 11 Ayrsome Road Stoke Newington London N16 0RH
For the Respondents	MISS C MacLAREN (of Counsel) The Solicitor London Borough of Hackney 298 Mare Street London E8 1HE


 


JUDGE PETER CLARK: This is an appeal by the applicant before the Stratford Industrial Tribunal, Mrs Fujamade, against a decision of a Chairman (Mr J M Leonard) sitting alone on 12th July 1996 dismissing her claims of sex and race discrimination against her former employer, the London Borough of Hackney ["the respondent"] on the grounds that they were presented out of time. Extended reasons for that decision are dated 29th July 1996.

The procedural history is as follows. The appellant was employed by the respondent from 20th August 1973 until her dismissal on 25th January 1995.

Following that dismissal she presented a complaint to the Central Office of Industrial Tribunals on 19th April 1995. In Box 1 of the Originating Application she identified her complaint in this way:

"Unfair and Constructive Dismissal

Harassment and Victimisation."

At that time she was represented by her husband, Mr Fujamade, who drafted the form IT1. The details of her complaint in Box 12 of the form began in this way:

"My employer is trying to confine the reason for my dismissal to my sickness record but this is a ruse to disguise the reason for my dismissal. I have been a victim of harassment and victimisation at the hands of my employer and staff which led directly to my nervous breakdown when I was suspended from my work on false accusations in Jan. 1994 and which sickness my employer used as excuse to dismiss me on 25 Jan 1995."

Although various complaints of harassment and victimisation are then set out dating back to March 1993, identified by the Chairman in paragraph 4 of his reasons, nowhere is it specified that such alleged harassment or victimisation was on the grounds of the appellant's sex or race.

On 28th June 1995 the respondent entered a Notice of Appearance, directed solely to the issue of unfair dismissal.

On 16th and 27th October 1995 Mr Fujamade wrote to the Industrial Tribunal enclosing further copies of the Originating Application which he asked to be treated as an amendment and extension to the Originating Application dated 19th April 1995. Box 1 of the new Originating Application read as follows:

"(i) Unfair dismissal

(ii) Race discrimination

(iii) Sex discrimination

(iv) Breach of Contract of Employment

(v) Right to receive itemised pay statement

(vi) Detrimental treatment for health and safety reason"

On 28th February 1996 a directions hearing was held before a Chairman. The matters agreed or directed on that occasion were set out in a letter dated 5th March 1996 from the Industrial Tribunal. The material paragraphs of that letter read as follows:

"2 It was plain to the Chairman and as Mr Fujamade conceded, the Originating Application filed by his wife on 19 April 1995 was not particularised adequately. He said that he had intended to cover many aspects of his wife's treatment by the Respondent and that he alleged her dismissal was unfair. Also he said that there were many aspects which related to harassment of his wife and victimisation as well. He said that because he thought it was only necessary to refer in the most general terms to these complaints, his wife's application was drafted in that way. Now he recognised that the Respondent is entitled to know the case it has to meet. He says that the principal basis of his wife's original claim relates to her unfair dismissal on 25 January 1995. The Chairman ordered the Applicant to particularise within 28 days of the hearing today, the allegations upon which his wife intends to rely in support of her claim of unfair dismissal, harassment and victimisation. The Chairman ordered that the Applicant should provide very clear and particularised allegations and in each case, should identify the individual against whom the allegation is made. The Applicant should sent a copy of her particulars to the office of this Tribunal and a copy to the Respondent at the same time. The Chairman also observed that it may be some of these allegations may be out of time and will need to be reviewed before the Full Merits Hearing.

...

4 Mr Fujamade referred to his letter to the Tribunal Office, dated 16 October 1995 and a second letter dated 27 October 1995. With each letter, Mr Fujamade, on behalf of his wife, enclosed a further copy of an Originating Application which he requested be treated as an amendment and extension of the Originating Application dated 19 April 1995. The Chairman explained to Mr Fujamade that amendment to an Originating Application are often allowed where such amendment are merely an expansion or amplification of allegations made in the first Originating Application. Also the Chairman explained that the Tribunal is unlikely to consider itself bound by the content of box 1 of any Originating Application if indeed in the substance of that Originating Application at box 12, the Applicant refers to other causes of action. However, the substance of the Applicant's second request for amendment on 27 October 1995 included a selection of fresh claims, none of which had previously been raised before. For the first time, the Applicant now alleged sex discrimination, breach of contract of employment, right to receive itemised pay statement, and detrimental treatment for health and safety reasons. The Chairman gave the Applicant an opportunity to suggest where references on this basis had ever been contained in the original claim. She was unable to do so and said these were new applications. The Chairman pointed out such applications were substantially out of the respective time periods in each case. Indeed, it seemed to the Chairman that the applications were at least six months out of time.

5 Accordingly, the Chairman was not prepared to allow the Applicant to amend her Originating Application as requested. The Chairman suggested that the proper course, if the Applicant wished to proceed, was for her to issue a fresh application making the allegations as she wished and that application would then be the subject of a Preliminary Hearing on which occasion a Tribunal could decide whether it was just and equitable for the Applicant to be allowed to proceed with it."

On 20th March 1996 Mr Fujamade wrote two letters to the Industrial Tribunal purporting to give further and better particulars of the Originating Application. Those particulars included particulars of the complaints of race and sex discrimination now sought to be raised.

On 10th July 1996, Mr Jacobs, who has appeared before us, was instructed on the appellant's behalf and has since had the conduct of this matter.

The Industrial Tribunal decision - 27th July 1996

The Chairman concluded that the complaints of race and sex discrimination were raised for the first time in October 1995, and were therefore outside the primary three month limitation period under s.76(1) of the Sex Discrimination Act 1975 and s.68(1) of the Race Relations Act 1976. He went on to consider whether it would be just and equitable to extend time under s.76(5) and s.68(6) respectively and decided that it would not on the grounds that the complaints were too far out of time and added as an afterthought.

The Appeal

Mr Jacobs submits that the Originating Application dated 19th April 1995 contained sufficient details to raise complaints of continuing acts of both race and sex discrimination from March 1993 until dismissal on 25th January 1995. Accordingly these complaints were brought within the primary limitation period of three months. As to the series of continuing acts he relied upon Adekeye v Post Office [1993] ICR 464. He further submitted, relying on Smith v Automobile Proprietary Ltd [1973] 2 AER 1105, that the Originating Application need not be in any particular form. Whilst he recognised that the Originating Application had not been ideally drafted he submitted that Mr Fujamade was not a lawyer, and contended that the expressions "victimisation and harassment" could only refer to sex and racial discrimination. Accordingly the original pleading did not require amendment and sufficiently raised the complaints of sex and race discrimination.

For the respondent, Miss Maclaren accepted that an Originating Application need not be in any particular form. However, she submitted that the claims of sex and race discrimination were not implicit in the original pleading. An amendment was required to put the pleading into proper order. Application to amend had been made in October 1995 and clearly refused by the Chairman sitting at the Directions hearing on 28th February 1996. There had been no appeal against that refusal. It was now too late to reopen the matter.

In these circumstances it was open to the Chairman sitting on 27th July 1996 to treat those claims as having been raised for the first time in October 1995. Accordingly the claims were out of time, and it was within the Chairman's discretion to refuse to extend time.

Conclusion

Where an Originating Application fails to specify in terms the cause of action relied upon, the Industrial Tribunal has a discretion to allow an amendment to specify the ground in law on which the claim is based. In particular, where sufficient details are contained in the original form IT1 such leave may be granted. See Home Office v Bose [1979] ICR 481. It is not necessary for the Originating Application to be in any particular form. Smith v Automobile Proprietary Ltd [1973] 2 AER 1105. The principles upon which leave to amend will be granted or refused are helpfully set out in the judgment of Mummery J in Selkent Bus Co v Moore [1996] ICR 836. Leave, once given, means that the new claim dates back to the original form IT1.

In this appeal Mr Jacobs submits that sufficient particulars were given in the original form IT1 such as to found claims of race and sex discrimination, even although those claims were not specified in terms. However, on 28th February 1996, at the directions hearing, the Chairman refused to allow the amendment contained in the appellant's fresh form IT1 submitted in October 1995. There was no appeal against that order. It is now too late to revisit it. In our judgment the original from IT1 does not disclose claims of race and sex discrimination and requires amendment.

The result is that these claims, first notified in October 1995, are to be treated as having been made at that time. It follows that they fall outside the primary limitation period. The Industrial Tribunal's discretion as to whether or not to extend time is a wide one. See Hutchison v Westward Television Ltd [1977] ICR 279. We cannot interfere with that exercise of discretion unless it can be shown to be perverse in the sense that no reasonable Chairman properly directing himself could have exercised his discretion in that way. On the facts of this case we are unable to say that perversity is made out.

Accordingly this appeal is dismissed.