United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR THOMAS KIBLING (of Counsel) J R Jones Solicitors 56A The Mall Ealing London W5 3TA
For the Respondents	MR DANIEL MATOVU (of Counsel) Messrs Kennedys Solicitors Longbow House 14-20 Chiswell Street London EC1Y 4TY


 


MR JUSTICE LINDSAY: We have before us an appeal by Mr Chhatralia, the former employee of the respondent, Network South Central Ltd. The appeal is against a decision of the London (South) Industrial Tribunal which heard the matter on 18th March 1996 and promulgated its decision on 9th April 1996. At that hearing Mr Chhatralia appeared in person, and the respondent, as today, had the benefit of Mr Matovu of Counsel and solicitors. The decision on that day was:

"The unanimous decision of the Tribunal is that the Applicant was not unfairly dismissed."

In order to make sense of this appeal it is important to set out matters in chronological order over some period. The matter begins on 13th April 1995 when the applicant as an employee of Network South Central completed an IT1 form of application to an Industrial Tribunal. It was received by the Industrial Tribunal on 19th April 1995, and, as is conventional in the printed form, there are boxes provided and it described in box 1 Mr Chhatralia's complaint. It said:

"Progressive unfair dismissal.

Promotional issues.

Racial Discrimination and harassment."

It said that a representative would be acting for him, namely the Commission for Racial Equality, but, although it named them and gave their address, it seems they never took any part in the matter.

In box 9 there is said:

"If your complaint is not about dismissal, please give the date when the action you are complaining about took place (or the date when you first knew about)"

and that is completed with the date:

"20th Jan 1995"

It might be right here to mention s.68 of the Race Relations Act 1976:

"(1) 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."

But the absolute terms of s.68(1) are qualified by s.68(6) which says:

"(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."

So if the act of racial discrimination complained of was on 20th January 1995, as box 9 rather suggested, then the complaint received on 19th April 1995 was in time. But, of course, if the complaint under the Race Relations Act 1976 was as to events earlier than then, there might have been a difficulty and s.68(6) might have had to come into play.

Box 10 is headed:

"Unfair dismissal applicants only"

and by completing that box Mr Chhatralia indicated that he wished for reinstatement.

In box 12 under the heading:

"Please give brief details about your complaint ... You will be given the opportunity to provide more detail later. ..."

There is a considerable length of complaint filled in. It is really at points almost incoherent. In our copy, in fact, parts of it have been chopped off on the photocopy. But it does, it seems, refer to matters having some degree of racial content, because at one point, talking about his dismissal, Mr Chhatralia says:

"The last day of dismissal ... which I believe was applied to me due to my racial background"

and there are other indications that race is an ingredient amongst the complaints that are then made. It is, in other words, possible to make out some form of connection being alleged between his dismissal and his racial background.

On 4th May 1995 Mr Chhatralia raised a questionnaire under s.65 of the Race Relations Act 1976 which is headed:

"HELP FOR AGGRIEVED PERSONS IN OBTAINING INFORMATION ETC."

The questionnaire said inter alia that he had been given an "unfair racially motivated dismissal", but it also included matters such as verbal racial abuse which did not seem necessarily to be related to his demotion and his dismissal. That questionnaire was served on the employer on 11th May 1995.

On 30th May 1995, the employers' solicitors, Messrs Kennedys, completed an IT3, Notice of Appearance by Respondent, which is a response to the applicant's IT1. They claimed that the applicant was not dismissed. In an expanded form annexed to that IT3 they say that he had been subject to complaints as to the quality of his performance as a fitter, that it had been decided to dismiss him but that, on an internal appeal, he had instead been reinstated in a lesser grade as a Carriage Cleaner, but that he had then declined to report for duty as such, and that the employer had taken that to be a resignation. The employer denied that its treatment of the applicant was racially motivated.

There is then quite a substantial gap in events, at any rate as we can see them, until on 20th September 1995 Messrs Kennedys, for the employer, answered that s.65 questionnaire of 4th May.

On 29th September 1995 there was a hearing for directions as to Mr Chhatralia's IT1 application. He did not attend, at any rate in time, but turned up late and spoke to the employer's Counsel.

On 18th October 1995 the Regional Secretary of the Industrial Tribunals wrote to Mr Chhatralia to record what had been decided on 29th September 1995. It said this:

"2. The Applicant appears to claim that he was unfairly dismissed and also that he was discriminated against on the grounds of his race in respect of his employment with the Respondent and his dismissal by them.

3. Many of the matters referred to in the Originating Application relating to allegations of race discrimination fall well outside the period of three months ending with the date of receipt by the Tribunal of the Originating Application (19 April 1995). Further in the Originating Application at Box 9

"If you complaint is not about dismissal please give the date when the action you are complaining about took place or the date when you first knew about it."

The Applicant has indicated 20 January 1995. The date when he was notified of his dismissal."

That suggests that the Office of the Industrial Tribunals recognised that there were here two claims, unfair dismissal on the one hand, and racial discrimination on the other. And so, indeed, does paragraph 5 of their letter which reads as follows:

"5. It would appear therefore that the issues in this case are (i) was the Applicant unfairly dismissed and (ii) did the Respondents discriminate against the Applicant contrary to the Race Relations Act 1976 between 20 January 1995 and 13 April 1995 as set out at question 2 of the questionnaire."

The letter then refers to the questionnaire and proceeds to indicate the order that had been made on 29th September 1995. It reads as follows:

"6. The particulars given in question 2 of the section 65 questionnaire are not sufficient to enable the Respondent properly to respond to the allegations made against them although we understand they have attempted to do so in their response to the questionnaire therefore order that the Applicant does on or before 31 October 1995 supply full details of the facts on which he relies to substantiate the allegations of race discrimination and he should identify the section of the Act within which he alleges the racial discrimination falls."

There were further directions and some advice given to the parties.

So the position was that Mr Chhatralia had a deadline supplied to him, 31st October 1995, as to his allegations of race discrimination, and he was to identify the relevant section of the Act within which his claim for racial discrimination fell. All that is at least consistent with the Industrial Tribunal then seeing there to be two types of complaint, unfair dismissal on the one hand, and a claim for racial discrimination under the Race Relations Act 1976 on the other. It might be said that if the Industrial Tribunal could so regard it, then so, surely, could Mr Chhatralia.

On 1st November 1995 he asked for an extension of time, and on 10th November 1995 he was granted an extension until 17th November 1995.

On 21st November 1995 Messrs Kennedys, having received nothing from Mr Chhatralia, who, as it seems, throughout acted in person, wrote to the Secretary of the Industrial Tribunals; the letter itself does not indicate whether any copy was sent to the applicant, and it says this:

"As at today, the Applicant has failed to provide the Further and Better Particulars ordered by the Tribunal. We respectfully submit the Applicant has now had three opportunities to provide particulars of his allegation of racial discrimination. The first opportunity was in his Originating Application to the Industrial Tribunal dated 13th April 1995. His second opportunity was in RR65 Questionnaire, which is dated 4th May 1995.

The third opportunity came with the Tribunal's order for directions made on 29th September 1995. Your records show that the Applicant did not attend that hearing. We can confirm that is correct, but what your records may not reveal is that the Applicant actually arrived at the Tribunal after the hearing was over, but in time to speak to our Counsel Mr Matovu. We shall quote from the endorsement on the backsheet to Counsel's Brief, "Applicant turned up late after hearing over and I spoke with him to explain what had been ordered. He was further advised that he could apply after receipt of formal order to challenge anything since the Court Usher indicated that the Tribunal had already commenced a full hearing and it was too late to refer back to Chairman.

...

Taking the above matters into account, we respectfully submit that the Applicants had had more than enough time to provide proper particulars of his allegation of racial discrimination and he has failed to do so. We therefore submit that this allegation should be struck out, which will still allow the Applicant to proceed with his constructive unfair dismissal allegation in any event."

That was a communication, seemingly private (quite proper for all that) from the employer's solicitors to the tribunal, and the tribunal very properly saw that it could not be dealt with on an ex parte basis like that, and, on 5th December 1995, the Regional Secretary of the Tribunals wrote to both sides and said that:

"1. A Chairman of the Tribunals considers that there should be an Interlocutory Hearing in the case. The hearing will take place on 19 December at 10.00am. before a Chairman sitting alone. The Chairman will consider:

Schedule;

Why the Applicant's claim of race discrimination should not be struck out

The Chairman may also make other directions if they appear necessary or desirable and will fix dates for the hearing if this has not already been done."

One might have thought that what was there being deployed was Rule 4(7) of the Industrial Tribunal Rules. Rule 4 begins:

"4.-(1) A tribunal may, on the application of a party made either by notice to the Secretary or at the hearing of the originating application, or of its own motion-

(a) require a party to furnish in writing to the person specified by the tribunal further particulars of the grounds on which that party relies and of any facts and contentions relevant thereto."

The tribunal was quite proper in having ordered particulars. Then, coming to Rule 4(7):

"(7) If a requirement under paragraph (1) or (3) is not complied with, a tribunal, before or at the hearing, may strike out the whole or part of the originating application, or, as the case may be, of the notice of appearance, and, where appropriate, direct that a respondent shall be debarred from defending altogether: but a tribunal shall not so strike out or direct unless it has sent notice to the party who has not complied with the requirement giving him an opportunity to show cause why the tribunal should not do so."

One might have guessed that that was what was in mind when on 5th December 1995 a hearing was directed to deal with that scheduled question on 19th December 1995.

However, at the hearing on 19th December 1995, which Mr Chhatralia attended in person, the Chairman, Mr John Warren, purported to exercise Rule 13(2)(f):

"(2) A tribunal may-

...

(f) subject to paragraph (3), on the application of the respondent, or of its own motion, order an originating application to be struck out for want of prosecution."

Then at (3), it is provided that the opportunity to show cause procedure is to be employed under Rule 13.

The decision of Mr Warren on 19th December 1995, is given under very large lettering:

"STRIKING OUT ORDER"

and it says this:

"In exercise of powers conferred on me under Rule 13(2)(f) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, I order that the Originating Application herein be struck out for want of prosecution in so far as it relates to the claim of racial discrimination."

There is no indication that any consideration was given at that hearing to whether the employer was prejudiced by any of Mr Chhatralia's delays although that is a conventional feature of usual examinations of the question of whether a matter should or should not be struck out for want of prosecution.

There was no appeal against the order of 19th December 1995, nor any application by either side that it be corrected under the slip rule. It will be noticed that what was struck out is limited by the words "in so far as it relates to the claim of racial discrimination". It does not, at any rate in terms, relate to the whole broad subject of race or the subject of race discrimination, but only to the claim of racial discrimination.

That is the opening part of the decision of 19th December 1995; it is the order itself, but, in the usual way, it is followed by extended reasons. The extended reasons say this in part:

"5. The Applicant appeared before me today but was unable to give any reason for non-compliance. [That is a reference to his failure to supply the particulars that had earlier been ordered.] The Applicant produced at this hearing a memo purporting to set out the details of his complaint. I was not satisfied that the memo was sufficient to comply with the order. I order that the Originating Application be struck out for want of prosecution in so far as it relates to allegation of race discrimination.

6. The applicant's claim of unfair constructive dismissal still stands. ..."

There is then provision so that the constructive dismissal claim will be heard on 2nd-3rd January 1996. It will be noted that there the reference is not, as it was in the order to a striking out "in so far as it relates to the claim of racial discrimination", but "in so far as it relates to allegation of race discrimination."

Nothing in the order in terms bars the deployment by Mr Chhatralia of racial issues as contributory factors in the alleged constructive dismissal.

A hearing a date was fixed for 2nd and 3rd January 1996.

No doubt at that hearing on 19th December 1995, the Chairman could have asked that particulars be given of not merely of the claim under the Race Relations Act, or could have dealt with that problem, but he could have gone on to say that if in the unfair dismissal case any matters having a racial content were to be ventilated, then they could only be ventilated if particulars were given and an order could have been made whereby the racial content of the unfair dismissal case could later be struck out. Indeed, without our saying whether it would or would not have been proper at the time, it might even have been open to Mr Warren to strike out not merely the racial discrimination claim, but also the racial content of the unfair dismissal claim on that hearing of 19th December 1995. But we are faced simply with the order as it stands. It was uncorrected and unappealed and strikes out the Originating Application only "in so far as it relates to the claim of racial discrimination."

On 20th December 1995, Mr Chhatralia, in person, asked for the decision of 19th December 1995 to be reviewed. He did that by letter and also asked that the substantive hearing should be adjourned.

On 5th February 1996, the Chairman refused a review as it had no prospect of success. Quite what had happened in the meantime to the fixed date of 2nd to 3rd January 1996 does not appear from our papers nor would it seem to be material.

On 18th March 1996, as we mentioned earlier, there began and indeed was concluded the hearing of the Industrial Tribunal before Mr Lamb and two members. The decision was unanimous, and I remind that it was that the applicant was not unfairly dismissed. Extended reasons were given. The Industrial Tribunal found that:

"7. On the 20 January 1995, a decision was made to dismiss the Applicant for reasons related to poor performance. That dismissal was to take effect on the basis of a payment of 12 weeks pay in lieu of notice. On that same day, the Applicant appealed against his notice of dismissal, and as result, his period of notice continued to run pending that appeal."

There had been a disciplinary appeal. As the Industrial Tribunal found, the appeal was ultimately heard by Mr Sawyer on the 7 March 1995. Mr Chhatralia was on that appeal represented, as he had been earlier, by a trade union official. They continue:

"9. We had a note of the proceedings at that appeal hearing ... It was clear that the Applicant was raising allegations of harassment and racial discrimination. He particular complained of the Production Manager, Mr Fitzsimmons, who was the person who made the decision to dismiss him. He also complained of his Shift Supervisor, Mr Price. He was clearly contending that the poor performance procedure constituted, or coincided with, a course of racial harassment. ..."

They then describe how that type of allegation was dealt with:

"The outcome was that Mr Sawyer selected a person, Mr Pope, Fleet Technical Engineer, to investigate those allegations by the Applicant before proceeding further with the appeal. The Applicant indicated that he was satisfied with that position."

There is then set out in the extended reasons the search that then took place to find other employment for Mr Chhatralia, whose own adviser had been telling him at the time that a disciplinary appeal was hopeless and that really he should concentrate on staying within the respondent's employment. He was eventually offered a new and lesser job. What was held was:

"11. On the 24 March 1995, a letter was sent to the Applicant by Mr Sawyer confirming in writing the offer being made to him. [That was as a more lowly form of carriage cleaner] He was therefore required to report for work on the 30 March 1995 to commence his new duties.

12. By letter dated the 27 March, Mr Chhatralia declined the offer of the carriage cleaner position. He complained that his treatment had been subject to various forms of discrimination, up to the final stage of appeal. The respondent to that letter, dated 30 March 1995, treated him as tendering his resignation, with effect on the 31 March. On any view, his employment came to an end on the 31 March. ..."

The Industrial Tribunal held next that he had not resigned.:

"13. ... He did not at any point resign. He was offered the opportunity to keep employment with the Respondents in a different capacity, which he declined. That could not constitute a resignation."

And on this part of the case, the Industrial Tribunal concluded:

"14. We find that the reason for the dismissal was related to his capability, and arose from an application of the poor performance procedure.

15. We find that the Respondents acted reasonably in treating that reason as a fair reason for dismissal. ..."

And now more central, perhaps, in some respects to today's hearing, I need to read the Industrial Tribunal's finding in paragraph 17:

"17. We find that the circumstances surrounding the dismissal of Mr Chhatralia were complicated by the allegation which he made of discrimination on the grounds of race. We further find that the Respondents acted fairly and properly in having those allegations investigated by someone acceptable to Mr Chhatralia, and by awaiting the outcome of that investigation before proceeding to make a final decision about the future of his employment. It was clear to us that in the course of the Tribunal hearing that the Applicant still believed that his allegations of discrimination were justified. That was the case he really wished to argue. We were unable to allow him to do so, because of the effect of the decision striking out his complaint of discrimination."

We now have before us an amended Notice of Appeal, the first ground of which is as follows:

"6. The grounds upon which this appeal is brought is that the Industrial Tribunal erred in law in failing to allow the Appellant to rely on the allegations of harassment and racial discrimination in support of his claim that his dismissal on the grounds of capability was unfair."

There are other grounds set out in that amended Notice of Appeal, but were the appellant to succeed on that one, then the other ones could, for the moment at any rate, be put aside. This is certainly the ground that has been most pressed and needs first to be investigated by us.

It seems to us that the question raised by the amended Notice of Appeal in the events comes down to this. Did the decision of 19th December 1995 render the Industrial Tribunal in March 1996 unable, as it ruled, to allow Mr Chhatralia to bring forward argument and to call evidence in support of an argument that racial discrimination played a real part in his dismissal? It will be noted that the Industrial Tribunal did not purport to exercise any discretion in their exclusion in paragraph 17 as we have read it. It viewed itself as unable to entertain argument involving racial discrimination. Nor, as it seems to us, can paragraph 17 fairly be read as merely referring to a case under the Race Relations Act. Given the references earlier in the decision and in the questionnaire to the way in which race was enmeshed, as Mr Chhatralia would urge, with the question of unfair dismissal, it seems that paragraph 17 was dealing with race in relation to unfair dismissal, and was understood to be so at the time.

It is worth briefly looking at some, at least, of the many differences between racial discrimination cases and unfair dismissal claims. Although we do not intend to give an exhaustive list of the differences, racial discrimination claims are, of course, under the Race Relations Act 1976. Racial discrimination for the purposes of that Act includes complicated forms of discrimination, for example indirect discrimination as described in s.1(1)(b), a sub-section which, if it is to be deployed, quite often requires an extensive and even statistical approach. No doubt it is considerations of that kind that had led the Industrial Tribunal earlier to require Mr Chhatralia to specify precisely under what section his racial discrimination claim fell. Racial discrimination is, of course, legislated against in the work place, but in ways going well beyond dismissal, for example, in terms of offers of employment, terms of employment, training facilities and so on. (See s.4 of the Act.) It is limited in general terms, although there are some exceptions, only to establishments in Great Britain. (S.4 and s.8.)

In racial discrimination cases there is the important consideration of s.53 of the Act:

"(1) Except as provided by this Act no proceedings, whether civil or criminal, shall lie against any person in respect of an act by reason that the act is unlawful by virtue of a provision of this Act."

That does not, of course, preclude a complaint that a dismissal is unfair because racially discriminatory because that sort of allegation does not assert that the dismissal is unlawful, merely that it was unfair.

S.54 gives the Industrial Tribunal's jurisdiction to hear race cases.

S.56 then turns to the remedies, which at several points have no equivalent in unfair dismissal cases. Thus see s.56(1)(c) and s.56(4).

S.57(4) shows that compensation can be awarded for injury to feelings.

Then there is a "non-discrimination" procedure which is intended to ensure that faults, when found, are not repeated.

We have already mentioned the s.65 questionnaire process. Then there is the s.68 time limits which, again, we have earlier read.

Turning to unfair dismissal, that, of course, relates only to cases where something which can be described in law as a dismissal had taken place. There is nothing in the legislation which precludes an employee from asserting, whatever the reason for his dismissal which is shown by the employer (here, for example, incapability) that that was not the real reason that the employer had, that in other words the shown reason may be something of a pretext. Parliament could easily, had it chosen, have prohibited questions of racial discrimination being raised in unfair dismissal cases, but it has not done so. If an employee successfully undermines or dislodges the only reason which is shown by the employer or is sought to be shown by the employer as being the reason for the dismissal, then he is likely to have a ruling of unfair dismissal in his favour. See Smith v Glasgow City District Council [1987] ICR 796, which was not cited to us, and see also Timex Corporation v Thomson [1981] IRLR 522, which was.

It can thus be of great importance to employees to be able to assert that a reason likely to be covert, a reason unlikely to be declared, namely race, was the real reason or a substantial reason for his dismissal.

Just to specify some further differences between racial discrimination and unfair dismissal, s.64 of the 1978 Act provides an upper age limit and a qualifying period. The remedies include reinstatement and re-engagement in s.69, and compensation is calculated in a way peculiar to unfair dismissal, see s.72 - 75A.

That one single event, be it an act or omission, can lead to claims and to awards both for unfair dismissal and racial discrimination is recognised by s.76. But, again, Parliament has done nothing to ensure that the sort of complaint that Mr Chhatralia makes and which has a component within it of racial discrimination is such that it cannot be a "capability" case within s.57(2)(a).

That is enough, as it seems to us, to illustrate some of the many differences between racial discrimination on the one hand and unfair dismissal on the other. They lead to quite separate claims.

Returning to the order of 19th December 1995, the order itself strikes out the claim of racial discrimination. Now, whilst it is the case that Mr Chhatralia failure to supply particulars was equally a failure to supply particulars of whatever racial component he intended to urge lay within his claim for unfair dismissal, the order of 19th itself, relates, as it seems us, and relates only and thus struck out only, the claim for racial discrimination. Any ambiguity in the extended reasons on 19th December is to be overborne by the clarity of the headline order of 19th December and its reference only to the claim of racial discrimination. It will be remembered that the order as to particulars which Mr Chhatralia had failed to comply with was one which, inter alia, asked him to say under what section of the Act he alleged racial discrimination fell. So the original order was an order that contemplated his case for racial discrimination being one within the Race Relations Act. If there was any want of prosecution, it was want of prosecution of that very same claim, in other words, a claim under the Race Relations Act.

That being so, we regard the view of the Industrial Tribunal on 18th March 1996 and promulgated on 9th April 1996 (that it was unable to allow Mr Chhatralia to develop an argument with a racial discriminatory content) as being an error of law. And moreover, it is an error of law on an aspect of the case that could, at least in theory, have been very significant as to the overall result because it could, again in theory, have led to the declared reasons or shown reasons being shown to be merely a pretext for what was in truth a racial case.

Mr Kibling for Mr Chhatralia today takes the point that under Rule 13(2)(f), the Rule under which, purportedly, the order of 19th December was made, it was the originating application, that is to say the whole of it, that was struck out for want of prosecution. By indicating, as it did, that notwithstanding the strike out, something was to go forward, the Industrial Tribunal must therefore have been regarding Mr Chhatralia as having two separate or two separable and separated claims, namely racial discrimination and unfair dismissal. If that is a necessary consequence of their allowing something to go ahead, then it could only have been the case that it was the racial discrimination claim under the Race Relations Act that was struck out.

Mr Matovu for the employer draws our attention to the case of Cocking v Sandhurst Stationers Ltd [1974] ICR 650. There an Industrial Tribunal, thinking itself empowered by the then Rule 5, did something which was in truth possible only under the then Rule 14(1). Sir John Donaldson and two members at the National Industrial Relations Court said at page 654:

"The fact that the tribunal relied upon rule 5 rather than rule 14(1) does not, as such, in any way invalidate their decision."

However, it is not clear whether, as in our case, the order itself there in terms identified the rule that was being exercised. In any event, there was no choice there; it was a conclusion that could have been arrived at only under the then Rule 14(1) or nothing. Here, in our case, there was a choice, Rule 4 or Rule 13, and the choice was made. Cocking cannot be read as entitling the parties or the Employment Appeal Tribunal to overlook the terms of the order making a deliberate specification of the rule being exercised. Remember there was no application made under the slip rule. Nor was it the case that the employer, who throughout had solicitors and Counsel, thereafter applied afresh, in the gap between 19th December 1995 and the hearing of the Industrial Tribunal in March in order to procure either that particulars be given of the racial content of the unfair dismissal case or that the racial content of the unfair dismissal case should be struck out for want of particulars. It is to be borne in mind, too, that Mr Chhatralia had earlier embodied race into his unfair dismissal complaint; he had even complained in his questionnaire of the investigator, Mr Pope, being biased, and he in terms there said that his dismissal had been racially motivated.

Although we have grave doubts as to the merits which may underlie Mr Chhatralia's still -unparticularised claims, it would be speculation on our part to say quite what the Industrial Tribunal would have decided in March 1996 if only they had allowed the racial element of Mr Chhatralia's claims to be developed.

With considerable unease we conclude that the case must be remitted, at least to allow Mr Chhatralia in his unfair dismissal claim to raise arguments and call evidence alleging some racially discriminatory content in his dismissal. The position is that in March 1996 it may well be that the Industrial Tribunal excluded evidence by reason of their understanding of the impact of the order of 19th December 1995, and thereby excluded evidence which, on a true view of the proper construction of that order of 19th December 1995, was both admissible and relevant. Mr Kibling has drawn our attention to Rosedale Mouldings v Sibley [1980] ICR 816 EAT, to show that there was no discretion to exclude evidence in that way.

But, if we do remit that matter, as it seems to us we must, can the remission be usefully limited simply to an examination now of the racial content claimed, or should the remission be of the whole case and to a wholly fresh tribunal? The decision of the Industrial Tribunal is already over a year old, and for the reason I will next come to, any remitted hearing is likely to be further delayed. That is for this reason; it will be remembered that particulars of Mr Chhatralia's racial allegations have still not been given. They were not given in relation to his claim under the Race Relations Act and Mr Chhatralia was very much at fault it letting that occur, but, equally, they have not been given as to the racial element of his unfair dismissal case. The employer, as it seems to us, is properly to be able to approach the Industrial Tribunal, when directions are given for the remitted hearing to ask that particulars should be given of the racial content of the unfair dismissal case. They are entitled to know precisely what case they have to meet on that point. It is not for us to give directions that will later come to be given by the tribunal that hears the remitted case. But, it seems to us, that it is highly likely and quite proper that Network South should ask for particulars and, indeed, that Mr Chhatralia should be at risk of having the rest of his case struck out should he fail to comply with any order made in that behalf. But the application for particulars and then there being a delay during which they might be prepared and served will lead to yet further delay between now and the substantive remitted hearing. It seems to us a great deal, and probably too much, to expect of the original three members of the tribunal who heard this matter in March 1996 to have retained sufficient familiarity with all the evidence earlier given in such a way that would usefully shorten the remitted hearing. Beyond that, as will have been apparent at earlier stages in the judgment, it would seem to be Mr Chhatralia's claim that race is enmeshed throughout quite a period of the chronology of events which will require examination, and so even if the same members were to hear the case, it is likely that a substantial part of the overall chronology will again need to be investigated.

Taking these circumstances together, we see it as right that the matter should be remitted to a fresh tribunal and for a hearing of the whole matter afresh rather than limiting the remitted hearing simply to the racial element.

I mentioned earlier that we have some real unease in the result. Speaking for myself, it is the second time within a course of only a few days that I have been concerned with the interaction of racial discrimination and unfair dismissal. Because of the relative informality of Industrial Tribunal cases and the paucity of legal representation, a relaxed attitude is very properly taken to the formulation of claims in IT1's, and that is, no doubt, desirable. But it can be taken to such a degree that it is frequently hard to tell whether there is a claim under the Race Relations Act itself, or, an unfair dismissal case with racial overtones, or both. So long as that sort of ambiguity is permitted to arise then cases such as this will occur. Some degree of formality may properly be insisted on by respondents and by the tribunals themselves, and it may very well be that in some circumstances it is unfair to a respondent, who has succeeded in ridding himself of a racial claim coming at him, so to speak, by way of the front door of the Race Relations Act, to find himself still being attacked on finding race, lurking at the back door through the claim for unfair dismissal. We comment, without intending to be taken to be deciding the point, that it may very well be right in some cases for a tribunal as a matter of discretion to disallow race issues to be raised in unfair dismissal cases where they had been earlier ruled out under the Race Relations Act itself. Whether the rules permit that and what latitude is open we have not needed to consider and have not been addressed on as in this case the Industrial Tribunal did not rule out the issue of race as a matter of discretion but in point of jurisdiction when they said they were unable to receive it. If the rules do not permit such an approach, then we would commend to the rule-making body that attention may need to be given to what may, indeed. be becoming a recurring problem.

That is one form of unease that we find ourselves suffering.

Another is this. We would not want it to be thought that our decision in this case is any way to be taken as any sort of precedent that encourages or allows the late taking of points relating to race in unfair dismissal cases. It seems to us that the Chairman on 19th December 1995 could have struck out the whole case, but he did not, perhaps out of kindness or indulgence to Mr Chhatralia. Then, at the main hearing, the Industrial Tribunal could have ordered particulars of the racial content to be given; they could have adjourned for that purpose. They could then have heard the racial content, and it may well be that having done so they would have found absolutely nothing in Mr Chhatralia's complaints. It may thus be that what we are doing is allowing to go forward a case which, when its merits are examined, has nothing in it at all. That is not unnaturally an occasion for some unease.

However, against that, we feel that we have with some reluctance, to examine the matter simply as a point of law, and we decide, as we have decided, to allow a remission on the simple and single ground that the order of 19th December 1995, properly construed, did not render the later Industrial Tribunal unable to receive argument and evidence as to an alleged racial content in Mr Chhatralia's dismissal. It is that very limited point of law which requires us and enables us to order the remission which we do.