United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE PETER CLARK: Mr d'Souza was dismissed from his employment with the respondent, Lambeth on 16th January 1990. He has brought a number of claims of racial discrimination and victimisation and, following his dismissal, a claim of unfair dismissal against Lambeth.

The current state of that litigation is that the Court of Appeal on 16th December 1998 set aside a decision of this Appeal Tribunal (Morison P presiding) awarding him £358,288.73 compensation for unlawful discrimination and victimisation, and restored the Employment Tribunal's award for both discrimination/victimisation and unfair dismissal, limited to the then statutory maximum of £8,925.

This appeal concerns a claim of sex discrimination brought against Lambeth. No such claim was formally made until presentation of the material Originating Application to the Central Office of Employment Tribunals on 5th March 1996 (Case No. 14097/96).

Lambeth took the point that the claim was out of time.

A preliminary hearing took place to consider the limitation point on 26th June 1996 before an Employment Tribunal sitting at London (South) (Chairman: Mrs J A C Gleeson, sitting with Ms H Ward and Mr L Harrison). For the extended reasons given with a decision dated 13th August 1996 that tribunal found that the claim was out of time and that it would not be just and equitable to extend time under s. 76(5) of the Sex Discrimination Act 1975 - ["The substantive decision"].

Dissatisfied with that decision the appellant pursued two courses. He served Notice of Appeal dated 17th September 1996 to the EAT against the substantive decision. That appeal was dismissed at a preliminary hearing on 2nd July 1997 for the reasons contained in a judgment delivered by Judge Hull QC. His application for leave to appeal to the Court of Appeal was dismissed, as was a review application, by the EAT's order dated 16th July 1997. A subsequent application for leave made to the Court of Appeal was dismissed on 4th December 1997.

Meanwhile the appellant applied to the Employment Tribunal for a review of the substantive decision, out of time, on 16th December 1996. That application was dismissed by a decision promulgated on 13th March 1997. He then made further applications to review on 18th March and 2nd July 1997. It seems that the Employment Tribunal reconsidered their earlier review decision on the grounds that it had been made erroneously on the basis that there was no power to extend time to entertain the original review application.

We should add that on 2nd July 1997 the appellant also presented a second complaint of sex discrimination against Lambeth (Case No. 2303224/97). No question of issue estoppel/res judicata was raised in that case. That complaint was dismissed by a full tribunal sitting at London (South) (Chairman: Mr G W Davis) by a decision with extended reasons dated 11th December 1997. A review application was dismissed by that Chairman on 2nd February 1998 and a further application for review to the Regional Chairman, Mr Meeran, was dismissed as was an application for a review by the President of the Employment Tribunals. Against all those decisions the appellant appealed to the EAT. On 22nd July 1998 I delivered the judgment of this tribunal, dismissing those three appeals.

The material review of the substantive decision took place before Mrs Gleeson's tribunal on 4th December 1997. The tribunal declined to review the substantive decision for reasons promulgated on 30th March 1998 ["the review decision"].

It is against that review decision that this appeal (EAT/766/98) is brought.

The Appeal

At the outset of this preliminary hearing, held on 19th February 1999, having given prior notice in writing, Mr d'Souza invited me to disqualify myself from sitting on this appeal on the grounds that I had shown apparent bias against him on the grounds of his race, together with my colleagues, Lord Gladwin of Clee and Mr Warman, in dismissing his earlier appeals on 22nd July 1998. That allegation was originally made in an application for a review of that decision and for leave to appeal contained in the appellant's letter dated 12th August 1998. I rejected that allegation then, by letter dated 12th October 1998, and I reject it now.

I deprecate any attempt by persistent litigants to engage in forum shopping, that is, to bring various applications in the hope that eventually a court or tribunal will find in their favour, objecting at each stage to members of the judiciary who have found against them in the past. It happens in Employment Tribunals, it happens in local County Courts and now it is happening here.

Mr d'Souza does not suggest that I have any personal interest in the outcome of this appeal (cf. Re Pinochet). His unparticularised complaint is that I am or appear to be biased against him on the grounds of his race. That is a serious allegation. It is wholly unfounded.

I bear in mind that a similar objection was taken to Sir William Macpherson sitting on the Lawrence enquiry. He rejected it and performed his duty. Mr d'Souza tells us that at the recent Court of Appeal hearing Mummery LJ offered to stand down on the basis that he had decided a case against Mr d'Souza when President of the EAT. No objection was taken and his lordship adjudicated on the appeal. I am equally satisfied that I am able to deal with this appeal fairly, have consulted both with the President and my colleagues who presently sit with me.

The grounds of appeal

The appellant applied for, and was granted, leave to add an eighth ground of appeal. We shall consider each of those eight grounds in turn.

(1) His first point is that the Gleeson tribunal was functus officio and could not consider his review application having earlier turned it down. That is a curious submission since, if it is right, it disposes of his own further application for review. He relies on the NIRC decision in Stevensons Ltd v Brennan [1974] ICR 194 for the proposition that only one review application may be made. There is a tension between that case and the earlier case of Raybright TV Services Ltd v Smith [1973] ICR 640, as to whether a second application for review may be brought on the same grounds as the first. It is not necessary for us to resolve that tension; the position here is that the Chairman acknowledged that she had overlooked the tribunal's power to extend time when dismissing the first application and effectively reviewed her first review decision. She was entitled to do so. The principle of review is an exception to the principle of finality of judicial decisions.

(2) He complains that the tribunal regarded itself as bound by the EAT decision of 2nd July 1997 dismissing the appellant's appeal against the substantive decision now under review. (Review decision reasons, paragraph 13). We reject that complaint. It is not open to the appellant to relitigate matters earlier determined by the EAT (and the Court of Appeal, which refused leave to appeal against that decision). The question on the review application was whether he could introduce new evidence under r. 11(1)(d).

(3) He submits that the tribunal was wrong not to allow him to introduce an argument that there was here a continuing act of discrimination under s.76(6)(b) of the 1975 Act, a point which he acknowledges was not raised at the substantive hearing. In our view, that is not a permissible use of the review procedure. He cannot raise new points of law through that procedure which could have been raised at the substantive hearing.

(4) He prays in aid Community Law, in that he says that he was deprived of the opportunity to bring his case within time due to Lambeth concealing evidence from him. He refers to the European Court of Justice in Levez v T H Jennings [1999] IRLR 36, which deals with the domestic two year limit on an employee's entitlement to arrears of remuneration under s. 2(5) of the Equal Pay Act 1970. In our judgment these arguments have nothing to do with the review hearing conducted by the tribunal.

(5) He makes a general allegation that on the review hearing the tribunal failed to abide by binding judgments of the higher courts and the ECJ, without further specifying which ones he relies on. We pause to observe that Mr d'Souza displays considerable learning in his submissions. His difficulty lies in applying that learning to the particular circumstances of his case. He also submits that the tribunal failed to give adequate reasons for its review decision. We disagree. it is quite clear to us from those reasons why this review application was dismissed.

(6) New evidence; this is the only real basis put forward for review. The tribunal deal with this issue at paragraphs 14-19 of their reasons. The appellant had known of his claimed comparator, Ms Lewis, whilst still in Lambeth's employment. It was open to him to commence proceedings alleging unlawful sex discrimination then and to obtain such documents as he needed on discovery. Instead he left over his claim for some six years. This not "new" evidence in the sense identified by Popplewell J in Wileman v Minilec Engineering Ltd [1988] IRLR 144.

(7) The review hearing was conducted in a biased and procedurally unfair way. This is dealt with in the appellant's affidavit sworn on 21st October 1998, and commented on by the Chairman by letter dated 3rd November 1998. We accept her account and reject this complaint.

(8) He relies on the recent House of Lords judgment in Kleinwort Benson Ltd v Lincoln City Council [1998] 4 AER 513, dealing with the effect of s.32(1)(c) of the Limitation Act 1980 in cases where there has been a mistake of law. Mr d'Souza seeks to apply that principle to his case; he says that he was given incorrect legal advice by his former solicitors as to whether he should pursue this sex discrimination case. That is not a mistake of law in the sense dealt with by the House of Lords in Kleinwort Benson. We think this is another example of Mr d'Souza grabbing at any lifeline to try keep afloat a case which is well out of time and which in our judgment has been properly dismissed.

In these circumstances we have concluded that this appeal raises no arguable point of law to go to a full hearing. It is dismissed.