United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Dr M S Farooqi c/o Mr W J Mayers British Medical Association Gladstone House Redvers Close Lawnswood Business Park Leeds LS16 6SS
For the Respondent	South Warwickshire NHS Trust Warwick Hospital Lakin Road Warwick CV34 5BW


 


JUDGE PETER CLARK:

1. On the 22 July 1998 Dr Farooqi presented an originating application to the Birmingham Employment Tribunal complaining of unlawful racial discrimination by the Respondent Trust, by whom he had been employed since December 1992. It was there pleaded that the action complained of occurred on the 21 April 1998 and the particulars of complaint read as follows;

i) "On the 21^st April 1998 I was directed to do work which I was not contractually obliged to do. I refused to do the work. That refusal has lead to the instigation of disciplinary proceedings against me."

ii) "My employer is discriminating against me because of my race".

iii) "I will provide further details of this later".

At that stage he was not represented.

2. Having been served with the originating application the Respondent's solicitors served a detailed request for further information dated 13^th August 1998. The Appellant by then was represented by the British Medical Association and to that request those advisors responded on the 9 September 1998. In that document they raised a number of matters which predated 21^st April 1998. By a letter of 28^th October 1998 the Respondent's solicitors pointed out that in his further pleadings the Appellant seemed to be adding further grounds of complaint which were time barred. They also submitted that the original complaint arising on the 21^st April 1998 was also time barred.
3. The matter came before a Chairman, Mr Ahmed, sitting alone at Birmingham on 2^nd November 1998. By a decision with extended reasons dated 25^th November 1998, that Chairman held that the originating application was not out of time and granted the Appellant leave to amend his originating application within 14 days and for consequential amendment to the Notice of Appearance. In his extended reasons he explained that the complaint arising on the 21^st April 1998 ought to be allowed to proceed. But nothing is there said about the other matters of complaint raised in the further information which predates the 21^st April.
4. There then followed correspondence between the parties and the Employment Tribunal including an application by the Respondent's solicitors for a review hearing to take place. That application is contained in a letter of 8^th December 1998 and having read it, it is not entirely clear to us what decision, as opposed to order within the meaning of regulation 2 of the 1993 Regulations, was to be reviewed. The review hearing took place before a full Tribunal, chaired by Mr Ahmed on 8^th June 1999. By a decision with extended reasons dated 28^th July 1999, (the review decision) that Tribunal varied the Chairman's order on its face holding that all complaints of race discrimination prior to the 23^rd April 1998 were out of time and were dismissed, save for complaints for Friday afternoon working which together with complaints on or after 23^rd April were permitted to proceed. Any subsequent complaints were to be the subject of a fresh application. In fact, we are told by Ms Hadley today, that on 30^th June, a fresh originating application was presented to the Industrial Tribunal which contains a whole host of allegations, not all of which are dated, some of which pre-date 21^st April 1998 That application has apparently been stayed, pending the outcome of this appeal.
5. Against the review decision the Appellant now appeals. This is a preliminary hearing held to determine whether any arguable point or points of law arise for consideration at a full hearing. It seems to us that there are a number of difficulties with the progress of this case, both procedural and substantive. For example;

i) In his original order the Chairman gave leave to the Appellant to amend the originating application without having before him a draft amended pleading. Thereafter the Appellant served a document dated 5^th November 1998, described as "Applicant's additional information to the Respondent's request for further and better particulars", setting out a number of allegations of discriminatory acts predating the 21^st April 1998. No amended originating application was actually filed, see paragraph 10 of the reviewed decision reasons.

ii) The review hearing appears to have been held to consider the Chairman's order granting the Applicant permission to amend the originating application. That is not technically a reviewable decision, see Regulation 2 and Schedule 1 Rule 11 of the 1993 Regulations. However, an interlocutory order may be revisited by the Employment Tribunal or a Chairman.

iii) The substantive point is whether at the review hearing, the Tribunal erred in law in then refusing leave to the Appellant to amend his originating application to plead complaints predating the 23^rd April 1998, (save for the "Friday afternoon" complaints), on the grounds that the complaints revealed a discriminatory practice or policy of the Respondents which constituted an act extending over a period, under Section 68(7)(b) Race Relations Act 1976, (see Owusu –v- LFCDA (1995) IRLR 574).

6. In view of the unsatisfactory procedural state of affairs in this case, we shall direct that the appeal be listed for a full hearing to examine the substantive issue in the appeal. For the avoidance of doubt, the Appellant is directed to lodge and serve upon the Respondent a draft amended originating application setting out the allegations of racial discrimination on which he intends to rely at the substantive hearing of this complaint, within 14 days of today. The second originating application dated 30^th June 1999, should remain stayed pending the hearing of this appeal. It will then be apparent to this Court precisely how the Appellant seeks to put his case at trial and similarly be clear to the Respondents. The appeal will be listed for half a day, category C, there will be exchange of skeleton argument between the parties with copies lodged with the Court 14 days before the full appeal hearing