United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE PETER CLARK: This potential appeal by Mr D'Souza has been listed before me for a ruling whether there is a justiciable appeal to the Employment Appeal Tribunal in the following circumstances. By an Originating Application (case no: 2303224/97) presented on 2nd July 1997, ["the material complaint"], the appellant complained of sex discrimination and breach of the Equal Treatment Directive by his former employer, the London Borough of Lambeth and its former Chief Executive, Sir Herman Ouseley. His employment with Lambeth terminated by dismissal on 16th January 1990. During that employment he presented a number of complaints of unlawful racial discrimination against Lambeth followed by a further complaint following his dismissal. He was successful to the extent that an Industrial Tribunal ordered his reinstatement, when Lambeth refused to do so on 25th March 1993. Eventually he was awarded compensation totalling £358,288.73 by a division of this Appeal Tribunal on appeal from an award by the Industrial Tribunal. See [1997] IRLR 677. That award is now under appeal by Lambeth in the Court of Appeal.

The material complaint came on for hearing before an Industrial Tribunal sitting at London (South) on 19th September 1996, Chairman, Mr G W Davis. By a decision with extended reasons dated 11th December 1997, ["the substantive decision"], the tribunal held that the sex discrimination complaint was out of time and that it would not be just and equitable to extend time, and further, that the appellant had no separate claim under the Directive.

Against the substantive decision Mr D'Souza has appealed to this tribunal by a Notice dated 14th January 1998 - EAT/199/98 ["the first appeal"]. The first appeal is listed for a preliminary hearing later today before a full appeal tribunal consisting of myself, Lord Gladwin and Mr Warman, (the full Appeal Tribunal.)

By letter dated 21st December 1997, Mr D'Souza applied for a review of the substantive decision. That application was considered by the original tribunal Chairman, Mr Davis, who, by a decision with extended reasons dated 2nd February 1998, refused the review application under Rule 11(5) of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993 on the ground that it had no reasonable prospect of success in the Chairman's opinion ["the review decision"].

Against the review decision the appellant has appealed by a Notice dated 7th February 1998 - EAT/489/98 - ["the second appeal"]. The second appeal is also listed for preliminary hearing later today before the full Appeal Tribunal.

That brings me to the present potential appeal. Upon receipt of the review decision, the appellant wrote to the Regional Secretary at London (South) on 5th February 1998 seeking a review of the review decision not by Mr Davis, whom the appellant believed was biased against him and anyway was functus officio having refused the appellant's application for a review, but by the Regional Chairman.

On 30th March 1998 the appellant wrote to the Regional Chairman claiming that he had been informed on the telephone during a call to the Regional Office a few weeks earlier that the Regional Chairman had sanctioned the review requested in the appellant's letter of 5th February, he sought a written response to that letter.

The Regional Chairman, Mr Meeran, replied by letter dated 7th April 1998. He there ruled that once an application for a review had been refused by the original tribunal Chairman the appropriate course was for the aggrieved party to appeal to the EAT, as Mr D'Souza has done against that review decision. There is no power under the Rules for the Regional Chairman to conduct a further review of the substantive decision, nor indeed of the original review decision.

Further, Mr Meeran took issue with the appellant's assertion that he had been told that Mr Meeran had "sanctioned the review". He had not.

Mr D'Souza challenged that ruling by a letter to the Regional Chairman dated 12th April 1998. He repeated that Mr Davis was now functus officio, but contended that Rule 11(5) provided for a further review by the President of Industrial Tribunals or the Regional Chairman. If the Regional Chairman was refusing to consider his further review application would he please forward the appellant's application for review to the President.

Mr Meeran replied on 15th May 1998. He maintained his position. He disagreed with the appellant's reading of Rule 11(5). The review application had been refused by Mr Davis, that was the end of the matter, subject to appeal to the EAT against Mr Davis' review decision. He declined to comment further on that review decision or to refer the matter to the President for a decision under Rule 11(5).

Following receipt of that letter, Mr D'Souza wrote to the Registrar of the EAT on 3rd June 1998. That letter has been treated as the Notice of Appeal in PA/733/98.

Mr D'Souza there argues that the Regional Chairman erred in law in:

(1) refusing to provide a formal decision with extended reasons for his refusal to consider the appellant's further review application dated 5th February 1998;

(2) misinterpreting the provisions of Rule 11 in holding that once an Industrial Tribunal Chairman has refused an application for review, neither the President nor the Regional Chairman can reconsider the matter under Rule 11(5);

(3) refusing the appellant's further review application which he contends is contrary to European law.

By letter dated 19th June 1998 the Registrar informed the appellant that the potential appeal would be listed today for consideration of whether he had filed an appeal falling within the EAT's jurisdiction and, if so, for directions to be given.

I have considered the skeleton argument produced by Mr D'Souza in connection with this potential appeal supplemented by his oral submissions and have concluded:

(1) that the potential appeal raises a question of law as to the proper construction of Rule 11 of the Industrial Tribunal Rules of Procedure. It is therefore justiciable before the EAT.

(2) I shall treat the Regional Chairman's letters of 7th April and 15th May 1998 as a decision by him on the appellant's application for a further review dated 5th February 1998 with sufficient reasons for that decision to allow the EAT to adjudicate on the issues raised by Mr D'Souza.

(3) In these circumstances and with the consent of the appellant I shall direct that PA/733/98 be given an appeal number and be listed for an ex parte preliminary hearing before the full appeal tribunal together with the first and second appeals later today.