United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A OLUFEKO (Solicitor) Olufeko & Co 85 Kingsland Road Shoreditch London E2 8AG
For the Respondents	MR I MACCABE (of Counsel) David Wagstaffe & Co 19 The Avenue March Cambridgeshire PE15 9PS


 


JUDGE J HICKS QC: This is an appeal by Mr Oyewole, the employee, from a decision of the Employment Tribunal, acting by a Chairman alone, to strike out part of a proposed amended Originating Application.

1. There was an Originating Application by Mr Oyewole for discrimination, unlawful dismissal and wrongful dismissal and that raised a number of matters, the pleading of which is not in dispute, and which have not been struck out and which will still be heard.
2. It became apparent to the Chairman at a Directions Hearing on 26 May 1999, attended by Mr Oyewole and his Solicitor, Mr Olufeko, and by the employer's Personnel Manager, that Mr Oyewole wished to add allegations, or wished to have allegations dealt with, under complaints that were not covered by the Originating Application and, in particular, an allegation of discrimination against him in failure to promote him for racially discriminatory reasons. The Chairman gave directions about that which were communicated to the parties in a letter of the same date, 26 May 1999, and the crucial paragraph of that letter is paragraph 5 which, so far as relevant, reads as follows:

"5 … the Chairman ordered that on or before the 9 June the Applicant is to provide full particulars of the matters relied upon to substantiate his case of race discrimination, wrongful dismissal and unfair dismissal. In chronological order he is to specify by way of time, date and place each and every action and/or omission that he complains of citing each individual responsible and clearly identifying those witnesses present when the said acts or omissions took place. Additionally, the particulars will make clear the statutory provenance relied upon by the Applicant and deal with those jurisdictional matters which are relevant for the purposes of Section 68 of the 1996 Act. …"

I interpose that 1996 was a plain mistake for 1976 because the discussion, at some length, in earlier paragraphs of that same letter relates to the Race Discrimination Act 1976 and it is quite clear that one of the issues identified at that Directions Hearing was whether, for the purposes of section 68 of the 1976 Act, a tribunal had jurisdiction to consider the promotion complaint, section 68 being the section of the 1976 Act which deals with time limits for applications. I continue with paragraph 5 of the letter:

"The Chairman indicated that should this not be complied with a letter to show cause why the originating application should not be struck out will be issued by the Tribunal."

3. The Applicant did serve particulars of his Originating Application including paragraphs 1 to 17 which are not in dispute and paragraphs 30 onwards which, for the most part, are also not in dispute, but at paragraphs 18 to 21 there was a complaint of discrimination in relation to promotion and at paragraphs 25 to 29 one of harassment and in between, at paragraphs 22 to 24, there is a section headed "Jurisdiction".
4. The paragraphs dealing with promotion list five persons who are alleged to have been promoted in preference to Mr Oyewole, although junior to him. It is alleged that they were all white and is alleged generally that he was not given the same opportunities of promotion and that that was discrimination. No dates are given for any of those promotions and under the "Jurisdiction" section therefore there could not be, and was not, any case put forward that those alleged acts of discrimination were within the relevant time limits. There is an allegation that the failure to promote was a continuing regime and consequently falls to be decided under section 68(7) of the 1976 Act, but even then it is not stated what is the last of the acts relied upon or anything else which would enable the question of jurisdiction to be determined.
5. In those circumstances, on behalf of the Chairman, a letter was sent to Mr Oyewole's representative giving leave for paragraphs 1 to 17 and 30 to 41, but giving notice that the Applicant had to show cause why paragraphs 18 to 29 should not be struck out, and he was given seven days within which to show cause. He did so through his Solicitors by a letter of 9 July applying for leave to include those paragraphs, saying that although the Originating Application did not mention promotion it had been the Applicant's claim throughout that he was racially discriminated against during his nine years of employment and that lack of promotion was simply one of those means of discrimination.
6. The letter goes on to allege that the claims are meritorious and that it would be just and equitable to allow those paragraphs, and it is alleged that the Respondent would not suffer any hardship, injustice or prejudice and the Applicant asked the Tribunal to exercise its discretion in his favour. No further particulars, and especially no particulars as to dates, are offered.
7. In those circumstances, on 12 July a letter was written on behalf of the Chairman refusing the request for leave to include paragraphs 18 to 29, and a consequential striking out of a few words was made in another paragraph. The Applicant on 20 July, by a letter from his Solicitors, applied for a Review and that was refused on the same date.
8. This therefore is an appeal against a decision made by the Chairman of the Tribunal in an interlocutory matter on a subject within the discretion of the Employment Tribunal, and Mr Olufeko is indeed content to accept the statement of principle relied upon in the Respondent's skeleton argument or observations as to the way in which such matters should be approached, in particular as set out in paragraph 32 of the judgment of Henry LJ in the Court of Appeal in the case of Noorani v Merseyside TEC Ltd [1999] IRLR 184, where he said:

"These decisions [that is say interlocutory decisions as to directions] are entrusted to the discretion of the court at first instance. Appellate courts must recognise that in such decisions different courts may disagree without either being wrong, far less having made a mistake in law. Such decisions are, essentially, challengeable only on what loosely may be called Wednesbury grounds, when the court at first instance exercised the discretion under a mistake of law, or disregard of principle, or under a misapprehension as to the facts, where they took into account irrelevant matters or failed to take into account relevant matters, or where the conclusion reached was 'outside the generous ambit within which a reasonable disagreement is possible', " [those last words being a quotation from another case, G v G [1985] 1 WLR at 647]

9. Mr Olufeko's main point is that it was unnecessary to include dates in relation to the allegations of promotion, because they were within the Respondent's knowledge. No doubt they were, but the direction was that they should be given by the Applicant. He says they were not within the Applicant's knowledge. Well, maybe they were not in the sense of his not knowing the exact date on which a promotion was officially made but it was, of course, his complaint that it was visible that the other persons had been promoted over him and he must have known, within a reasonable compass, when that first became apparent to him and could have said so.
10. It is said by Mr Olufeko that it is no hardship to the Respondent that these dates should be omitted for the same reason, but we are not here in the situation of a decision to strike out exercised on the basis of prejudice to the Respondent. This was that class of striking out in which the most plain warning had been given by the Tribunal that a peremptory order was being made, a time limit imposed, and specific directions given which had to be complied with on pain of striking out if they were not complied with. That warning had been contained first of all in the letter of 26 May, itself confirming what plainly would have been said at the Directions Hearing. It was then repeated explicitly in the Notice to show cause of 2 July and the court here was exercising a familiar jurisdiction to enforce its own orders, when they are couched in peremptory terms, and when the sanction for failure has been plainly spelt out and the opportunity given to make good any failures to comply, and we see no error of law in the fact that the Chairman approached the matter on that basis.
11. Mr Olufeko says that this was Wednesbury unreasonable because the Chairman did not address the issue of justice, but what are commonly called and, as Henry LJ says, perhaps loosely called "Wednesbury grounds" concern cases where again, to quote from him, "the conclusion reached was 'outside the generous ambit within which a reasonable disagreement is possible'." We find it quite impossible to say that this decision by the Chairman was outside the ambit of decisions which a reasonable tribunal might have reached. That being so, we see no error of law into which the Chairman fell in making this decision and we have come to the conclusion that the appeal must be dismissed.