United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR WILSON (Solicitor) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE KIRKWOOD: This is the preliminary hearing of an appeal by an employee against the decision of an Industrial Tribunal concerning a review. That decision was communicated by letter dated 1st April 1998. The Industrial Tribunal at London (North) informed the employee that the tribunal no longer had the file and in the absence of that information it was not possible for Chairmen to consider the matter further. The employee, Mr Egbaiyelo, was advised that if he was unhappy with the reply he may apply to the Employment Appeal Tribunal to appeal out of time.

The history appears to be that as long ago as 13th April 1992 the employee lodged a complaint with the Industrial Tribunal of race discrimination, victimisation and indirect discrimination.

In the document IT1, as originally drafted, the employee relied upon a failure by the employer, the National Association of Citizens Advice Bureaux, to give him substantive promotion and the subsequent dismissal of him by the employer at the end of 1991.

Following the complaint to the Industrial Tribunal, in which the appellant named his representative as Eric Brown of the Southwark Law Project, Mr Brown wrote to the tribunal asking to amend the particulars in Box 10 of the Form IT1 to include the circumstance that matters had arisen in the course of a grievance process which the appellant had initiated after his dismissal. The IT1 was amended with leave in accordance with that request.

By its Notice of Appearance dated 22nd May 1992 the respondent denied any discrimination at all and made reference to the grievance process which had itself been compromised by the payment by the employer to the employee of £3,000 made on 24th March 1992, that is to say before the complaint to the Industrial Tribunal had been made.

Documents in our bundle show that on 13th March 1992 the respondent had written:

"I understand that you are in agreement to this and that you are willing to accept a total lump sum of £3,000 in full and final settlement of the matter. If this is the case please would you sign the second copy of this letter in the space below and return it to me at your earliest convenience and I will arrange for you to be sent a cheque."

That of course refers to all the matters in the appellant's grievance, because it follows from what I said that his Industrial Tribunal proceedings had not by then been started.

He duly signed the second copy of the letter and the cheque from the respondent to the appellant was sent on 24th March 1992. It was after that, as I have indicated, that the proceedings were begun.

On 8th September 1992 there came into existence a document COT4 headed "Advisory Conciliation and Arbitration Service" and then "withdrawal of an application under the Industrial Tribunals under one or more of the following Acts:" and then they are all deleted except for the "Race Relations Act 1976". The appellant's name and address is given and this:

"I wish to withdraw the application I have made to the industrial tribunal.

On behalf and for the Applicant

Signed Eric Brown Date 8/9/92"

Eric Brown, I repeat, was the man from the Southwark Law Project identified by the appellant in his complaint to the Industrial Tribunal.

Consequent upon that, the Industrial Tribunal drew an order on 17th September 1992:

"The application is dismissed on withdrawal by the applicant.

DECISION SENT TO THE PARTIES ON

25 September 1992"

5½ years later the appellant wrote to the Chairman at the Regional Office of the Industrial Tribunals (London North):

"I refer to the above case details before the Industrial Tribunal in 1992. The Tribunal decision was 'The application is dismissed on withdrawal by the applicant'.

I hereby request that the decision be reviewed on the following grounds:

* I did not receive notice of the hearing dates.

* The decision was made in the absence of a person entitled to be heard.

* I did not at any time request for the application to be withdrawn.

* The copy of the Tribunal decision was received and thus came to my knowledge on the 9th February 1998.

* The interests of justice require such a review.

I should be grateful for your urgent decision on this matter."

I have already referred to the letter of 1st April 1998 by which the Regional Secretary indicated why no review could take place.

We have searched through the Notice of Appeal and through the skeleton argument lodged by the appellant to try to find out what became of those missing 5½ years. Those documents raise points of argument on the merits of the original case, but we are left completely in the dark as to what happened after September 1992 and until 9th February 1998 when the appellant says that he became aware of the tribunal decision of 1992 by receipt of it.

Absolutely no explanation is given to us beyond what we were told by Mr Wilson, the ELAAS representative whose has represented the appellant today, that the appellant says that he has some proceedings pending in the County Court arising out of substantially the same matters and it was only the course of those proceedings that he came to learn what had happened in the Industrial Tribunal in 1992.

We note that the address given to us by the appellant in a letter he wrote on 17th July 1998, 22 Wesley Close, London SE17, is exactly the same as the address he gave to the Industrial Tribunal back in 1992. We note that he was represented before the Industrial Tribunal. We note also that he did speak to somebody from ACAS on the telephone, though did not meet anybody, at the time prior to what we know to have been the dismissal on withdrawal. We have been told by Mr Wilson that it may be helpful to adjourn this preliminary hearing to find out what the County Court files says and see if some explanation is there. But we are unable to see how that could possibly assist us as to the lapse of 5½ years; or how it could possibly assist us to find that there was a point of argument to go to a full hearing some 5½, nearly 6, years after the events.

We notice that although Mr Egbaiyelo, the appellant, says he received the tribunal's order on 9th February 1998, it was even then just over a month before he applied for a review.

We remind ourselves that the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 in Rule 11 limits the time for applying to a review to 14 days. So even having regard to all other considerations, and even if there might be some reason why there can be excused a delay to 1998, even then the appellant was out of time for asking for a review.

Mr Wilson has sought to raise an argument under s. 72 of the Race Relations Act 1976 that provides by subsection (3) provides:

"A term in a contract which purports to exclude or limit any provision of this Act is unenforceable by any person in whose favour the term would operate apart from this subsection."

By subsection (4)

"Subsection (3) does not apply-

(a) to a contract settling a complaint to which section 54(1) applies where the contract is made with the assistance of a conciliation officer;"

The compromise of the grievance process in 1992 leading to a payment of £3,000 was not a contract purporting to exclude or limit any provision of the Act. Furthermore, it was a compromise reached before the proceedings were begun.

We see no other contract purporting to exclude or limit any provision of the Act, but in so far as the Notice of Withdrawal is a manifestation of such a contract, we note the assistance of ACAS, to which I have already referred and, in addition, we note that the document was signed by the appellant's adviser.

We are quite unpersuaded of any conceivable basis upon which this case should go to a full hearing and we accordingly dismiss the appeal at this preliminary stage.