United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D H MALKAN (A friend)
For the Respondents	MR J HOSKINS (Barrister) Bevan Ashford 35 Colston Avenue Bristol BS1 4TT


 


MR JUSTICE LINDSAY: We have before us the appeal of Mr M S Vishwanath against the decision of the Industrial Tribunal, the Chairman, Mr J K Macmillan, sitting alone, that followed a hearing on 10 February 1997 and which was sent to the parties on 18 February 1997. That decision was in proceedings before the Birmingham Industrial Tribunal in which Mr Viswanath was the Applicant and the Respondent was Royal Wolverhampton Hospitals NHS Trust, which we simply refer to as "Wolverhampton."

At that hearing Mr Vishwanath appeared in person although sitting with him was his friend and colleague, Mr Malkan. Before us it is Mr Malkan who has spoken for Mr Vishwanath. Mr Malkan has some legal qualifications although he is not in practice, and also, like Mr Vishwanath, has medical qualifications. Before us Wolverhampton has been represented by Mr Hoskins.

The decision under appeal was an Interlocutory decision by the Chairman alone and the decision was that the Applicant's request to add a complaint of racial discrimination was refused. We need to explain the background: Mr Vishwanath is a Fellow of the Royal College of Surgeons. He is an Orthopaedic Surgeon and is now, but was not at earlier material times, a substantive Consultant. Previously he had been employed by Wolverhampton as a locum on a series of contracts for three years.

The last of his contracts ended to his dissatisfaction in the sense that he was not taken on afresh. On 6 October 1996 he lodged an IT1 or at any rate sent off an IT1 to the Industrial Tribunal. He had had a series of short-term appointments and the last of them expired and was not renewed and hence he made a complaint.

The nature of his complaint at that stage is seen in his IT1 it says:

"I have been in continuous employment as a Locum Consultant Orthopaedic Surgeon for more than 3 years. Now I have been singled out for dismissal. This post had been advertised on two separate occasions, last time in February 96 as a substantive post. I wasn't selected for interview and the post continues to remain vacant. The demand for the work is still existing and I have been unfairly dismissed."

His employment had ended, as the IT1 indicates, on the last expiry date of his various short-term contracts, on 30 September 1996. That, we think, was no surprise to him, in the sense that he had been told as early as 14 May 1996 that his contract would not be renewed. On 29 November the employer, Wolverhampton, responded to that IT1 with an IT3. There are set out on a separate sheet "Grounds of Resistance". They make the point that the Applicant had had a series of fixed term contracts from August 1993 as a locum Consultant; that at the end of each fixed term the Applicant's future had been discussed with Wolverhampton; that the final fixed term expired on 30 September 1996. It was said that the Respondent was not able to renew the Applicant's contract for a further term because of the necessity to make substantial financial savings within the organisation. It was said that alternative funding for the Applicant's post was not available. The response in the IT3 agreed:

"It is correct that a full-time permanent post of consultant orthopaedic Surgeon was advertised during the currency of the Applicant's employment. The Applicant was not shortlisted for the post as he did not meet the shortlisting criteria.

No consultant orthopaedic surgeon post whether permanent or temporary has been advertised since the termination of the Applicant's employment. It is denied that the Applicant's dismissal was unfair, and liability to compensate him is denied."

So the stage was set and in the IT1 and IT3 there is no hint of complaint as to, nor, of course, response as to, racial discrimination. There is no invocation of the Race Relations Act at that stage.

The Chairman in his findings held that Mr Viswanath could not be taken on as a substantive consultant because he was not "accredited". In paragraph 2(b) he says this:

"In February of 1996 he applied to them for a substantive consultant's post but was turned down. He was told that he could not be appointed as he was not "accredited", in other words had not attended a course of advanced training."

Pausing there, Mr Malkan says that that misunderstands what "accredited" means, but, for immediate purposes, we do not need to know what the medical components are intended to be in the word "accredited". What suffices is that Mr Vishwanath was told that he could not be appointed as he was not accredited. The Chairman continues:

"He makes no complaint either in the original proceedings or in the proposed amendment about that matter, although he does seek to rely on it in one way to which I will turn shortly."

That racial discrimination was possibly a thing he had then suffered was plainly in Mr Vishwanath's mind. Before he had left employment with Wolverhampton, he consulted the BMA's own industrial advisers in July 1996. On 28 August 1996 while still employed by Wolverhampton, he served a Section 65(1)(a) Questionnaire, which was held by the Chairman to have been drafted by the BMA's advisers. It plainly raises questions as to the ethnic origins of classes of employees and as to the possibility of discrimination in their treatment. What the Industrial Tribunal Chairman held on that was this:

"2(b) ... Mr Vishwanath now seeks to say that this questionnaire was not really about racial matters, but that is plainly not so. Its whole purpose was to elicit information which might support a complaint of race discrimination."

On 23 September 1996 the questionnaire was answered by Wolverhampton. The position was, by that date, that Mr Vishwanath had physically left Wolverhampton; although still in their employ he was using up accrued holiday leave to which he was entitled and was either looking for new work or was actually employed by other persons as a locum in the interval. All this was before the contractual end on 30 September 1996. Its consequence was that he was away from home during this latter part of September. As we understand the findings of the Chairman, the questionnaire answers from Wolverhampton were sent Mr Vishwanath's home address but because of his absence in the way we have just explained, he did not see those details until the first weekend in October 1996. The first weekend of October 1996 began on Saturday the 5th and included, of course, Sunday the 6th. What the Chairman says is this in paragraph 2(c):

"... He was taking accumulated leave and, whilst searching for a substantive consultants post, was doing locum work around the country, initially in Worksop in North Nottinghamshire. He therefore did not receive the respondent's letter enclosing the replies to the questionnaire until he returned to his home which must have been around the first weekend in October."

It was on 6 October 1996 that he put a date to his IT1 which I earlier referred to, making unfair dismissal as the only apparent ground of his then complaint. That IT1 was received by the Industrial Tribunal on 10 October 1996, so it looks as if it was probably posted on or after Monday 7 October 1996.

The answers to the questionnaire from Wolverhampton were in some detail and comprised in part typescript language and in part statistical tables. I asked Mr Hoskins, for Wolverhampton, whether a person looking at that response, would think that they were looking at material which disclosed discriminatory practice on behalf of an employer. Of course, perhaps unfairly, that put Mr Hoskins on the horns of a dilemma. If he answered "yes" then he would be admitting that his client was a racially discriminatory employer. If he answered "no" then it might be said that on seeing the questionnaire Mr Vishwanath had no particular reason to regard it as an instrument that assisted his possibilities as to his having a prima facie case in racial discrimination. But, horns of dilemmas apart, it seems to us that one cannot say of the answers to the questionnaire that so plainly did they reveal a racial discriminatory employer that anyone fairly examining them would have realised that he had available to him a good case in racial discrimination. Of course, in terms the answers to the questionnaire deny racial discrimination. Answer 5(c) says:

"At no time did colour, race, nationality or ethnic or national origins have any bearing on the decisions of the Trust to terminate your employment with us when your last extension of your Temporary contract expires on 30th September 1996."

That was the answer of 23 September 1996.

To return to the unfolding chronology, by the end of November 1996 Mr Vishwanath had happily obtained a consultant's post in Scotland and had obtained it notwithstanding that he was still not "accredited". In December 1996 Mr Vishwanath claims to be the case, but this is as yet untested in fact, that Wolverhampton in December 1996 appointed as a Consultant Surgeon a white man, who was not "accredited" at the time. What the Industrial Tribunal says on that in paragraph 2(d) is:

"... He does, however, complain that sometime in December, and it would appear that this is what prompted the belated application to amend, the respondents appointed a consultant surgeon who was white in another part of the hospital, that consultant surgeon not being accredited. There is plainly an issue, about which I have heard no evidence, as to whether during 1996 the need for accreditation ceased."

Although that appointment transpires, as alleged, to be in December 1996, it seems it did not come to Mr Vishwanath's notice until early January 1996. On 16 January 1997 Mr Vishwanath wrote to the Chairman of Industrial Tribunals. He says, which seems to be quite untrue, that he had not, at that date, received a reply to the questionnaire. Certainly that is contrary to the findings of fact found by the Chairman, and we asked for an explanation of that, which, we are bound to say, was unsatisfactory, but the letter continues:

"I have now reason to believe that my Unfair Dismissal by the respondents might be because of Racial Discrimination on their part. I would be grateful if Racial Discrimination can be added on to my original complaint of Unfair Dismissal.

As I haven't yet received a reply to my Questionnaire from the Respondents, I am unable at the moment to say how many witnesses I will be calling."

The Chairman deals with this in his findings, he says this in paragraph 2(b):

"... In his letter of 16 January 1997, the application to amend to add the complaint of race discrimination, he says 'I have now reason to believe that my unfair dismissal by the respondents might be because of racial discrimination on their part.' (My emphasis)".

The Chairman is critical of that allegation "I have now reason to believe" which would appear to suggest that there was no reason previously, because the Chairman goes on:

"But that, with respect, is disingenuous because questions 6(a) (b) and (c) of the questionnaire go directly to his principal complaint against the respondents, namely that his contract was not renewed, whereas white doctors had their contracts renewed. That is the substance, though not the detail of it. So very plainly that was not something which had occurred to him only shortly before making his application to amend. It had been in his mind from the outset."

That, for present purposes ends the chronology. We should briefly refer to the Race Relations Act Section 68(1) says:

"An industrial tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done."

That stern provision is qualified by sub-section 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 Chairman's analysis follows, as it seems to us, these lines: the complaint that was made by Mr Vishwanath was that his contract had not been renewed. His contract had ended on 30 September 1996 therefore the clock (the three months) of Section 68(1) started to run on 30 September 1996 and therefore time expired on 29 December 1996. His application letter to add racial discrimination was on 16 January and therefore was eighteen days late. The unfair dismissal case that he had raised by his IT1 was, by the time of the hearing on 10 February, already listed for 24 February for hearing. It was recognised there might have to be adjournment in any case, but that to allow the racial discrimination claim to be raised would make adjournment absolutely obligatory. The Chairman had in mind that from the outset as early as July 1996, Mr Vishwanath had had racial complaint as a possibility in his mind. He had discussed it with the BMA representative. The Chairman held this:

"4 ...There can be no explanation other than that he had the possibility of racial discrimination in his mind when he served the RR65 questionnaire at the end of August. Although he may well have detected certain straws in the wind in late November and December, which might have strengthened his belief that he had been discriminated against by the respondents they could not of themselves, have changed anything. The principal issue that his contract was not renewed, whereas white locums had had their contracts renewed, was in the forefront of his mind from July 1996 at the very latest and no new information on that topic came to light after his contract ended. All of the information upon which he now seeks to rely was supplied to him by the respondents before 30 September. Indeed he had it in his possession even if he had not read it, which is a matter for him, before he commenced these proceedings. There is in short nothing upon which he now seeks to rely in connection with the proposed allegation of race discrimination which he did not know of before the proceedings were commenced and of which he was not highly suspicious long before his contract came to an end."

It was in that circumstance that the Chairman concluded as follows:

"5 In those circumstances it seems to me that it is much too late in the day to seek to add a wholly new allegation which will, because of the way it is pleaded, involve an investigation of events in February (1976 typing error) 1996, and generally greatly widen the ambit of the hearing. Accordingly in the exercise of my discretion I reject the application to amend to add the complaint of race discrimination."

The law on which the Chairman had directed himself is found in his paragraph 3:

"I have a discretion to exercise in this matter and I do so in accordance with the well established principles, which I do not propose to set out, in Cocking v Sandhurst Stationers Limited (1974) ICR 650 which were recently revisited in Selkent Bus Co Ltd v Moore (1996) IRLR 836 [not 661] EAT and Smith v Gwent District Health Authority (1996) ICR 1044, all of which are decisions of the Employment Appeal Tribunal."

None of those cases was actually mentioned, so far as we can understand, before the Chairman. Indeed, the subject of references to law before the Chairman when we explored it with Mr Malkan (who, as I mentioned, was not only addressing us but had been present below) was that when law fell to be discussed at all before the Chairman, the Chairman's response had been that he did not want to be addressed on the law, as this was an interlocutory application.

Without purporting to begin to cover all the propositions that emerge from the three cases which the Chairman refers to in that paragraph 3, it might be as well to touch on some of them. The Cocking case deals with a case as to the discretion of whether or not to add or substitute a party to existing proceedings out of time where a mistake had been made. One has to look, it was held, at all surrounding circumstances, including whether the amendment out of time will cause injustice to any party. In the Selkent case the Industrial Tribunal below had allowed an amendment to add an allegation that a dismissal had been prompted by the automatically unfair ground of the employee's involvement in trade union activity. The position there was that there was an IT1 of 1 December 1995, that there was an application to amend on 30 January 1996, and the amendment had been allowed by the Industrial Tribunal on 6 February 1996. But the EAT on appeal struck out the amendment because, as they held, the Applicant had offered no explanation of why he had not included the automatic ground in the first place. It was also held that there was there no hardship to the Applicant in striking out the automatic ground because his case in unfair dismissal could in any event still be pursued. Presumably that was on the basis that the EAT took the view that he had a substantial chance of success even without the automatic ground, as otherwise one would think that its striking-out did represent a hardship.

It was also held in Selkent that the material time to look at the state of things in an extension of time case was the date as at which the Applicant makes his application to amend. In the Smith case, which was a racial discrimination case, an application was made to amend the comparators that the Applicant wished to rely upon. The Industrial Tribunal had refused the amendment even without allowing a hearing. The EAT remitted the matter to an Industrial Tribunal taking the view that in their opinion it was not a case of the addition of something like a new cause of action but was merely the amendment of a cause of action in a continuing case and, to that extent, different considerations might possibly have been relevant.

There are a number of cases in this area, beginning, as Mr Hoskins has drawn to our attention, with the case of Hutchinson v Weekend Television [1977] ICR 279. But one case to which Mr Malkan for Mr Vishwanath does refer us today is the case of Clarke v Hampshire Electro-Plating Co Ltd [1991] IRLR 490. In that case, which we do not need to set out at length as to its facts, Mr Justice Wood and the Members sitting with him, at paragraph 11 say this:

"... If however there was in this case a cause of action which had crystallised on 25 April then it seems to us that in exercising the issue of discretion under s.68(6), the approach of the Industrial Tribunal should be to consider whether in exercising its discretion it was reasonable for the applicant not to realise that he had the cause of action or, although realising it, to think that it was unlikely that he would succeed in establishing a sufficient prima facie case without evidence of comparison."

In our case, it is not exactly evidence of comparison that was wanted by Mr Vishwanath (because he would have to accept, as it seems to us, that the appointment of the white man to a consultancy post, notwithstanding that he was not accredited, was not a strict comparator relative to his complaint that his contract as a locum had not been renewed at the end of September 1996). Even so, it is not possible, or at any rate is arguably not possible, so completely to compartmentalise racial discrimination as to say that comparisons have to be absolutely on all fours to be of any value at all. It can be the case that a man having one character of job can assist his case that he has been discriminated against on racial grounds, by showing that someone else who has a different kind of job, but one not wholly different, has been advanced on racial grounds or has been discriminated against, again on racial grounds. Matters cannot be wholly compartmentalised in this area and it seems to us that if the Clarke case had been in the Chairman's mind, he would have had to ask himself certain questions.

It is to be remembered that we are here applying the test of justice and equity; that is not a test that is to be regarded as inflexible. It is a test that is to have in mind all surrounding circumstances. It will plainly vary greatly from case to case quite what the surrounding circumstances consist of. It seems to us at least a very real possibility, given the approach of the Clarke case, that it can be reasonable for a Tribunal to ask itself whether during certain periods it was reasonable for the Applicant, even an Applicant who has in mind racial discrimination, to hold his hand, to hold back from launching proceedings for racial discrimination, for the perceived reason that, as things then stood, he did not have sufficient material to be able to bring forward a case with any real prospect of success.

It would be unwise of any court to encourage a situation in which a man could be at no disadvantage for making premature claims, even without, as it seemed, prima facie grounds, and to penalise those who thoughtfully stay their hand until they have the material which they think they need to represent a viable case. Where one needs a comparator, as was the case in Clarke, then plainly awaiting a comparator can be a reasonable thing to do. The Chairman, as I mentioned, did not mention the Clarke case and it was not drawn to his attention. But Mr Hoskins accepts that before the Industrial Tribunal Chairman, Mr Vishwanath had plainly urged that he had not realised that he had the material for a worthwhile viable prima facie case in racial discrimination until January 1997, when he learned of the appointment of the unaccredited white man to a full-time consultancy. Of course, whether that is a fact is for the future, but that Mr Viswanath made the point to the Chairman, is, as we understand it, accepted. The factual point was put, even though the Clarke case was not mentioned.

It is to be remembered that Mr Vishwanath did not see the answer to the questionnaire until 5th or 6th October. It may, and we say no more than may, have been reasonable for him, looking at that, not to have been able to assimilate all its possibilities by 6 October when he drew up his IT1 for unfair dismissal. There may, in other words, have been good reason why racial discrimination was not mentioned in the complaint made on 6 October. The Industrial Tribunal finds that Mr Viswanath had been working very long hours and had, as a Consultant Surgeon, locum or otherwise, very considerable responsibilities, and it could be that it would have been unreasonable for him to expect him to have assimilated all the questionnaire answers by one day after its receipt, when he made his unfair dismissal claim. In any event, as we mentioned earlier, it is far from plain that the answers to the questionnaire disclose, indeed they deny, any racial discrimination. In other words, there may well be good reason why, as at 6 October when he made a complaint, it had no racial component. Equally, it seems to us possible (again we need say no more than that) that it was not until December 1996 or even January 1997, when he learned of the appointment of the white man, that he at last finds that the racial "penny", so to speak, drops, and that he is in a position to launch what he might hope to be proceedings that had a respectable prospect of success.

The Chairman felt that the appointment of Mr Viswanath in Scotland, notwithstanding that he was not accredited, and the appointment of the white man in England by Wolverhampton, although he was not accredited, were factors that could not of themselves have changed anything. But it seems to us that if the Chairman had had in mind the approach of the Clarke case and had asked himself whether it had been reasonable till then for Mr Vishwanath to stay his hand and await, as he hoped or might have expected, the receipt of material that made a better case, it might be that the Chairman would have come to a different conclusion.

We are only concerned at this stage with a point of law. It does seem to us that the case was that, the Clarke approach not being in mind, there was here an error of law in that there was a factor that should have been considered but which was not. Moreover, the factor is not an insignificant one. It is one that could have had a substantial effect as to the result. It is not for us to find facts afresh nor to speculate what the position would have been had the Chairman had the Clarke approach in mind. But we are able to conclude that his not having the Clarke point in mind represents an error of law on the part of the Chairman. Had the Clarke case been mentioned in his paragraph 3 with the other cases we would, of course, have had to accept that regard had been paid to it. Equally, if, even in the absence of the Clarke case being mentioned in paragraph 3, the Chairman had dealt with the factual allegation that it was not until January 1997, when he learned of the appointment of the unaccredited white man, that Mr Viswanath realised and hoped that at last he had a complaint that had a real prospect of success, then the case would have had to have been dealt with by us on the footing that the Chairman had had the point in mind. But in the absence of consideration of fact of that nature and also in the absence of the mention of the Clarke case, we do find here that there has been an error of law. On that basis, we see it as right to remit the matter to consideration by a different Chairman, or, if it is regarded as proper to have three persons sitting on the panel, to a whole different Tribunal, but still, of course, dealing only with the question of the discretion under Section 68(6).

We are very far from saying that had we been the Tribunal of fact, we would have ourselves decided to extend time. There are real factors here that militate against the extension of time. We have been troubled by the possibility that there has not been candour on Mr Vishwanath's side in relation to matters such as the date of his receipt of the questionnaire. As I mentioned earlier, it is not for us to speculate as to the facts. We say no more but simply remit the matter to the determination of a new Chairman or a new Tribunal as the local office thinks fit.