United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	DR XION-JIAN WU (In person)
For the Respondent	MR THOMAS LINDEN (of Counsel) Lloyds Register of Shipping 71 Fenchurch Street London EC3M 4BS


 


JUDGE PETER CLARK: This is an inter partes appeal hearing following partial leave to proceed being granted at an ex-parte preliminary hearing on 6 July 1998. We refer to the judgment given on behalf of that division of the Appeal Tribunal by Mr Justice Kirkwood on that day for the factual background, issues and adjudication then made. This judgment should be read in conjunction with the earlier judgment.

The matter was allowed to proceed on two issues only, they were:

(1) That the Stratford Employment Tribunal failed to provide adequate reasons for their finding in paragraph 62 of the Extended Reasons for decision, that it would not be just and equitable to extend time in respect of the Appellant's complaints of racial harassment (the limitation point); and

(2) Whether the Tribunal erred in concluding that the Appellant would not be entitled to reinstatement or re-engagement and that the basic and compensatory awards following a finding by the Tribunal of unfair dismissal should be reduced to nil in circumstances where the Appellant was not given an opportunity to address the Tribunal before they reached their decision and that the Tribunal failed to identify the conduct of the Appellant relied on in support of that part of their decision (the remedy point).

At the outset of this hearing Dr Wu renewed an application previously made in writing and refused by the Registrar for an adjournment of this appeal hearing. His grounds for the application were that he had made every effort to obtain legal representation for this hearing but without success. He felt that the issues of law were too complex for him to deal with alone. Mr Linden, on behalf of the Respondent, opposed the application. He submitted that the issues remaining in the appeal were not complicated, that having failed to find representation in the seven months since the preliminary hearing there was no reason to suppose that Dr Wu would have any greater success in the next two months, which was the period of adjournment sought, and finally that in any event he was instructed to apply for the Respondent's costs thrown away if today's hearing was adjourned. Those costs being estimated at between £750-£1000.

Dr Wu was not prepared to pay costs of more than £500 if the adjournment was granted, and we see that he is in financial difficulties. In a written application for an adjournment he told us that a charging order had been made in respect of his legal costs incurred below.

In all the circumstances, in the exercise of our discretion, we concluded that it would not be appropriate to adjourn the hearing and proceeded to hear submissions from Dr Wu and from Mr Linden on the two issues before us. Having done so, our conclusions are as follows:

The Limitation Point

At the preliminary hearing Dr Wu was represented by Ms Karen Monaghan of Counsel under the ELAAS pro bono scheme. The submission which she made, and on which this point was allowed to proceed to a full hearing, was based in part on the observations of Morison P in Wade v West Yorkshire Police and another [EAT/899/96). We have also considered the subsequent Court of Appeal judgment in that case, given after the preliminary hearing in the present case.

In Wade, there was a substantial issue before the Employment Tribunal as to whether or not it was just and equitable to consider the applicant's complaints of sex discrimination out of time. The Tribunal disposed of that argument in one line:

"We do not take the view that it would be just and equitable to extend the time limit."

The EAT held that that was not sufficient. The applicant was entitled to a reasoned decision. Pill LJ agreed in giving the judgment of the Court of Appeal.

Thus, on the face of it, this Tribunal's reasons at paragraph 62 were inadequate where they simply say this:

"We do not find it just and equitable to consider the complaint respect of those remarks under section 68(6) of the Race Relations Act."

However, it is important to understand how the race discrimination claim was put before the Stratford Tribunal. Following 12 days of evidence the Tribunal received written closing submissions from the parties. Those put in by Mr Aston, solicitor for Dr Wu, ran to 35 pages. We have been taken to the relevant extract.

It is clear that the Appellant's case below was

(a) that the allegation that his transfer from the development section to the pipeline section in November 1992 was racially discriminatory was itself out of time.

(b) that his complaint as to the lack of promotion was an allegation of a continuing act

(c) that his dismissal was itself racially discriminatory, relying on the earlier complaints by way of background.

In the event, only the allegation of verbal harassment by Mrs Bradley, the references to a "Chinese conspiracy", were upheld as amounting to racial discrimination. However, those remarks were made prior to dismissal and it was not argued that it would be just and equitable to allow that limited complaint to proceed under s.68(6) of the 1976 Act.

In these circumstances we are satisfied that the Tribunal was entitled to dismiss that complaint as being time-barred without more. No reasoning was required in the absence of an argument that it was just and equitable to allow the complaint to proceed out of time.

As Mr Linden points out, the Tribunal cannot be criticised for failing to raise the point of its own motion Dimtsu v Westminster City Council [1991] IRLR 450.

Accordingly, we dismiss this first ground of appeal.

The remedies point

The short answer is that the Employment Tribunal did not determine the question of remedies flowing from the finding of procedural unfair dismissal. In paragraph 82 of the reasons they say:

"82. Though the Tribunal has not dealt with the question of remedy in respect of the unfair dismissal, it is clear from this decision, that we would not consider ordering the reinstatement or re-engagement of the Applicant, and that both his basic and compensatory awards would be reduced to nil."

That strictly disposes of the complaint that the Tribunal below reached a decision on remedies without giving the Applicant an opportunity to address them on that issue.

However, we go further. Bearing in mind the Chairman's observations in the review decision it may be said that the Employment Tribunal had reached a concluded view as to remedy without hearing the parties, and indicated that no amount of argument would dissuade them from the course which they had indicated they would take at a futures remedies hearing.

If so, there was a breach of natural justice. It is one thing to give an indication to the parties, which can be helpful, and quite another to express a firmly held pre-judgment. On this footing it may be said that a clear breach of natural justice has taken place.

However, we are satisfied that even if the Tribunal fell into error in the way just described, the result was plainly and unarguably right on the fact as found. Dobie v Burns [1984] ICR 812. It is important to note that the Tribunal made findings of fact in connection with the wrongful dismissal claim as to the Appellant's conduct which were material to the issue of contribution (see particularly paragraphs 78 and 81 of the reasons). On those clear findings the conclusion that the Appellant had contributed to his dismissal to the extent of 100% was plainly correct, and on that basis reinstatement or re-engagement was similarly inappropriate.

For these reasons we dismiss the second ground of appeal before us, and accordingly the appeal as a whole is dismissed.

We should finally add this. Although it is technically open on our first finding under the second ground for Dr Wu to apply to the same Tribunal for a remedies hearing, the inevitable result would be that he will receive no remedy and in all likelihood will be at risk of a costs order being made against him.