United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M KALLIPETIS QC (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE ALTMAN:

1. This is an appeal from the decision of the Employment Tribunal sitting at Leeds on 9 March 2000. It comes before us by way of preliminary hearing to determine if there is a point of law to justify consideration of this appeal in full by the Employment Appeal Tribunal. That part of the decision of the Employment Tribunal that is under appeal is the refusal to permit the complaint of racial discrimination to proceed on the ground that it is just and equitable to do so, notwithstanding the expiry of the time which the law provides, within which such complaints should be made. We are enormously indebted to Mr Kallipetis who has represented the Appellant under the ELAAS scheme and has taken such points as can validly be taken. We have however read the whole of the Appellant's Notice of Appeal and he did have an opportunity to supplement the submissions of his counsel and we are satisfied that Mr Kallipetis has taken the only point that can properly be taken on this appeal.
2. In the extended reasons the Regional Chairman set out a very helpful history of the inter-relating Tribunal proceedings that the Appellant has been involved with in relation to these Respondents and it is unnecessary to repeat it. In paragraph 1 the Chairman points out that in 1997 the Appellant brought a claim for unlawful deduction from wages and breach of contract. In relation to the latter the continuing employment meant that the Tribunal did not have jurisdiction to entertain the breach of contract claim. The Tribunal also dealt with the first matter, the claim for unlawful deduction of wages, and that was heard on its merits and was dismissed. The conclusion was that there was not an unlawful act, which led to a difference in the hourly rate of pay when the position of the Appellant was compared with others.
3. On 14 January 1999 the Appellant made an application claiming race discrimination in relation to those matters. He had earlier sought to raise those same issues by way of an amendment to other proceedings brought in 1998, following his dismissal in that year, and the amended claim at paragraph 6 had referred to the allegations of race discrimination, which arose out of similar, if not the same facts, as those from which the earlier application, which had been dismissed, also arose. In paragraph 5 of their decision, the Employment Tribunal find as follows:

5."The Applicant today asserts that he first raised racial discrimination in this context in January 1999 as a result of what he heard in the proceedings in February 1998 and later the transfer to higher rates of pay of two other people, Mr Robert Simcock on 3 May 1998 and Ms Diane Roach on 1 November of the same year."

The learned Chairman then records that the Appellant accepted that Ms Roach was of the same racial origin as him and focused accordingly on Mr Simcock as the only true comparator. It was unnecessary, the Tribunal found, to hear from the Applicant in evidence but they had his statement to which they referred together no doubt, also with submissions. The Tribunal then found that the material comparator Mr Simcock was transferred in May 1998 and even if that was the date upon which the last act of discrimination took place, the application was still 4 or 5 months out of time. We suspect however, that the May 1998 date is less relevant as to the time limit because it really provides evidence of earlier discrimination, rather than being an act of discrimination in itself. But that is unclear.

4. So taking the most favourable picture, so far as the Appellant was concerned, the Employment Tribunal came to the following conclusion: -

7. "Considering whether it would be just and equitable for that complaint to proceed, we have decided that it would not for the simple reason that, whether or not the applicant's belief in a racial motive arose as described by him in his written statement, the fact remains that this part of his current originating application is no more than an attempt to resurrect an issue which has already been decided against him by another Tribunal."

As we understand the position the Appellant was arguing that the Respondents were in breach of contract because he was not given a higher hourly rate. He having failed to establish that, he then said that he was discriminated against, not as a matter of contract law but because of racial discrimination and the Chairman recorded Mr Simcock as the Comparator. There is however a matter of concern in relation to the evidence that was before the Employment Tribunal. In the bundle of documents that has been placed before us is an affidavit from the Appellant dated 15 February 1999, over a year before the hearing before the Employment Tribunal, which refers to a Mr Malcolm Marshall, who was dismissed on grounds of gross misconduct but with notice pay. The assertion is now made by the Appellant that it was an allegation of racial discrimination that the Appellant was not given notice pay and the exhibit to that affidavit is shown at page 133 of the bundle before us.

5. We are uncertain on the information before us, where one side only was making representations, what information was before the Employment Tribunal. Mr Kallipetis urges us to find that when, in paragraph 7, the Employment Tribunal expressed its reasons for refusing to admit the complaint of racial discrimination, that there is an arguable point of law, which asserts that the Tribunal were in error in treating, as the only reason for failing to exercise their discretion, the fact that the Race Discrimination Act application covered the same grounds as issues that had already been decided. It may be that the Employment Tribunal was exercising a qualitative judgment to say that there was nothing within the new application to give rise to a possible additional allegation and that all the Appellant was doing was to try to have a re-run having lost the first time round. But what gives us cause for concern is the difference between the reference to Mr Simcock as the only comparator in the extended reasons and the reference before us to Mr Marshall and the proposition that he formed part of the argument presented to the Employment Tribunal.
6. If it be the case, as the Appellant tells us today, that the reason why he made his application in January 1999 was that he discovered about Mr Marshall at the end of 1998, then it may have been that that was a matter to be taken into consideration in deciding whether or not the new application was only covering old ground and whether or not to permit the application to proceed. In those circumstances it seems to us that we should take the submissions on face value and come to the conclusion that they do raise matters which are properly arguable in full, before the Employment Appeal Tribunal. They can be described as follows:

First whether the Employment Tribunal erred in law in refusing to admit the complaint outside the time limit on the ground that it was just and equitable to do so, solely on the ground that the Appellant was seeking to resurrect an issue which had already been decided against him by another Tribunal and

Whether in exercising their discretion the Employment Tribunal erred in failing to consider the position of Mr Marshall and his dismissal for gross misconduct with notice pay, and whether this was a new matter.

7. This matter will therefore proceed to a full hearing on those grounds only. In order to enable the Employment Appeal Tribunal to resolve those issues, exceptionally and we hope without imposing too great an administrative burden upon the Regional Chairman, we request that he provides his notes of evidence and any relevant documents before the Employment Tribunal at the time, relating solely to the issue of the identification of the comparators and the way that that was achieved through argument or submissions or discussion or evidence, and in particular, in so far as any general discussions also referred to Mr Marshall. We would ask the Regional Chairman if he would provide the Employment Appeal Tribunal with such information. We also direct that the appeal be listed for ½ a day in category C, skeleton arguments to be furnished in accordance with practice not less than 14 days before the hearing.