United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR W D PANTON (of Counsel) Instructed by: Mr B Parry-Davies Messrs Dowse & co Solicitors 23/25 Dalston Lane London E8 3DF
For the Respondents	MRS E ANDREWS (of Counsel) Messrs Doyle Clayton Solicitors 69-70 Mark Lane London EC3R 7HS


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us, by way of a full hearing, the appeal of Mr Emeke A Animadu in the matter Animadu v Mastercare Service and Distribution Limited.

1. There was a hearing on 13th January 1999 at London (North) under the chairmanship of Ms Manley and the unanimous decision was as follows:

"(i) the claim for race discrimination is not made on the IT1

(ii) it is not just and equitable to extend the time limit for the application to be amended. The applicant's application to amend is therefore dismissed;

(iii) the rest of the applicant's claims will proceed to a full hearing."

2. Mr Animadu is black. It is fair to say that his full name suggests that that is likely to be the case. On 17th June 1998 he lodged an IT1; it had been signed by him on 15th June. It gave the dates of his employment at Mastercare as being from 10th of November 1997 to 30th April 1998. That short period explains, no doubt, why there is no claim for unfair dismissal. The Box 1 of his IT1 is partly in print and partly in completed writing. The print says:

"Please give the type of complaint you want the tribunal to decide (for example: unfair dismissal, equal pay). A full list is given in Booklet 1. If you have more than one complaint list them all."

That was the printed part and there are then three separate dashes, each one having hand-written words against them:

"- BREACH OF CONTRACT

- EQUAL PAY

- BREACH OF COOPERATION & FAIR TREATMENT"

In Box 11, which is headed:

"Please give details of your complaint

If there is not enough space for your answer, please …"

What we have is:

"Breach of Contract (Wrongful dismissal) Intimidation, Victimisation and Harassment"

and then under the Breach of Contract heading, paragraphs 1, 2 and 3 set out various matters and at paragraph 4 it says:

"Various complaints about harassment, intimidation etc. were not responded to. This reflects the absolute disregard to all my previous queries of administrative nature; such as overtime claims, expenses, job issues etc."

At paragraph 5 it says:

"Breach of Co-operation, respect and fair treatment; in the form of unequal pay (all group that started Nov 97). Persistent attempts to make working conditions hostile and unbearable …"

At the foot of Box 11 it says:

"Details of the main breach of contract are attached as 4 pages titled "Events of 21/4/98 –22/4/98 .. Wrongful Dismissal"."

Under that heading there are three pages of typescript, which set out the nature of the complaint. One sees as one passes through those pages expressions such as harassment, humiliation and stress and there is reference to a Mr Alan Went as the main oppressor and as his being judge and jury. Looking at the IT1 as a whole one finds these words 'harassment', 'intimidation', 'breach of respect', 'humiliation', distress', 'oppressor', 'stress' and 'victimisation'. But nowhere does one find the conjoined words 'racial discrimination' or even the single word 'discrimination' and there was no mention of the complainant's race or of the race of those against whom accusations are made or of the Race Relations Act or, indeed, of relief under that Act or indeed relief under any Act. There is in the IT1 the absence of any comparator or any comparative approach which is really at the very root of allegations of racial discrimination.

3. The company's IT3 responded that Mr Animadu had been dismissed for gross misconduct.
4. The Tribunal found as a fact:

"4 … The applicant was dismissed on 30 April 1998 following a disciplinary interview held that same day. The applicant sought legal advice after his dismissal, including doing his own research on the Internet and at the library, as well as speaking to people who had some legal experience and were studying law, and two firms of solicitors, one of which he said was in Wembley. He completed the Originating Application himself and it was submitted on 15 June 1998. It included the two standard pages of the form and an extra four type-written pages. Although words used in that included the words "intimidation", "harassment", "fair treatment", there are no words which indicated discrimination on the grounds of race or ethnic origin. …"

5. The matter went forward in the ordinary way and there was directions hearing on 23rd October 1998. As to that the Tribunal said this:

"4 … At that hearing it seems that the question of whether there was a suggestion of race discrimination was raised. The applicant stated that that was indeed the case and the Chairman indicated that he should provide particulars of the alleged incidents of discrimination. These were provided to the Tribunal on 19 November 1998. They included a series of incidents with the last one being dated 24 April 1998. At the Preliminary hearing the applicant also referred to an incident on or around 30 April 1998 where the company car was removed from the station where he left it."

6. At this point we turn to the Race Relations Act 1976, section 54(1):

"A complaint by any person ("the complainant") that another person ("the respondent")-

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part II; or

…

may be presented to an employment tribunal."

At section 68(1) it says:

"An employment tribunal shall not consider the complaint under section 54 unless it is presented to the tribunal before the end of-

(a) the period of three months beginning when the act complained of was done;

…"

Subsection (6) reads:

"A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

The position was that Mr Animadu had two real difficulties in front of him. The first was that the racial complaints needed the leave of the Employment Tribunal if they were to be included by late amendment; and, secondly, if, as was the case, the IT1 was dated 17th June 1998, he would prima facie be unable to complain of events earlier than 16th March 1998. But, of course, as to those matters, thirdly, he could ask for an extension of time under section 68(6) on the ground that it was just and equitable that there should be such an extension.

7. At the hearing on 13th January 1999 the company urged that it was unfair that it should be required to answer claims not only old but even by then, it is claimed, inadequately particularised.
8. Mr Animadu was in person and he argued as follows; his submissions are set out at paragraph 7:

"The applicant asked to be allowed to amend the IT1. He said that race discrimination is implied because of his bad experiences with the respondent. He believes that he had evidence that Alan Went discriminated against him and mentioned the question of the faulty motherboard in particular, which was the substance of one of his allegations of racist treatment. He says that Alan Went as a team co-ordinator was supposed to be supportive, but he had always been oppressive and that this must have been racially motivated. The applicant also asked for permission to amend the IT1 to bring in the details of the allegation on 30 April when his car was removed from the station. He submitted that his claim should be allowed to proceed."

9. The decision was sent to the parties on 8th February 1999. The Tribunal expressly directed themselves by reference to section 68(1) and 68(6). Succinctly, in their paragraph 9 they said:

"It is well settled that Tribunals must look at all the circumstances before deciding whether to allow an application to amend."

Although the Tribunal did not expressly refer to a leading case – Selkent Bus Co Ltd v Moore [1996] ICR 836 – their language is so close to the language used at one part of the Selkent case that it is hard to believe that they did not have the Selkent case either cited to them or if not cited to them, at any rate, in mind. The Tribunal went on to hold:

"11. It is the unanimous decision of the Tribunal that the Originating Application does not appear to include a claim for race discrimination. Although some of the words used in the IT1 are words which are sometimes used in discrimination cases, there is no suggestion apart from that, that this claim is one which is meant to be made out as a discrimination claim. … Nowhere in the IT1 nor in subsequent correspondence before 19 November does the applicant say anything about his ethnic origin or any suggestion that his treatment was as a result of ethnic origin. The IT1 certainly does not make this allegation."

The Tribunal then turn to the discretion which they have to extend time backwards, so to speak, to include complaints as to earlier periods and the case for amendment, and what they said:

"12 In those circumstances the Tribunal have to consider whether to extend the time limit and whether it is just and equitable to do so. The applicant had plenty of opportunity to raise this question. First, he wrote a letter of complaint before his dismissal. This did not express his view that his treatment may have been racially motivated. As we have said, the IT1 makes no reference to this and subsequent correspondence also makes no reference to racial motives for the applicant's treatment. Indeed, it is not until the applicant appears at the Directions Hearing that this point is raised at all. …"

As Mrs Andrews points out, in fact, that beyond the correspondence and the reference there, there is a bundle of paper before us and which was also before the Employment Tribunal that shows that even throughout a long period of complaint, including a disciplinary appeal, still no mention seemed to have been made of racial motives or discrimination on racial lines. The Tribunal look to see how that had come about. They say:

"12 … Given that the applicant had some legal advice before he completed the IT1, we are surprised that it was not mentioned at that point or subsequently. He also did a considerable amount of research himself. Having heard all the evidence and considered all the documents before it, the Tribunal is of the unanimous view that it is not just and equitable to extend the time limit in this case. The applicant's application to amend is therefore dismissed."

10. On 9th March 1999 a letter, by way of Notice of Appeal, was received at the EAT from Mr Animadu. He said:

"I hereby appeal to have my case reheard as a discrimination (race) case as originally implied in my application. I have been badly hurt in every way through various actions resulting from very wicked motives directed towards me because of the hatred of my nationality, origin, race etc..

I wish to seek Justice."

A little later, in a follow-up letter, he wrote on 26th March 1999:

"I wish to proceed with my appeal on the grounds of breach of co-operation, respect and fair treatment, victimisation and harassment resulting from very wicked motives directed towards me because of the hatred of my nationality, origin, race etc.."

11. For the respondent, Mrs Andrew put in a succinct Respondent's Answer. It said:

"The Respondent intend to resist the appeal of Mr Animadu on the following grounds:-

(1) The Employment Tribunal's decision discloses no error of law or wrongful exercise of discretion.

(2) The IT1 did not claim race discrimination nor was any factual basis for such a claim contained in the IT1. If there had been there would have been no need for the Appellant to make the application which he did on 13 January 1999.

(3) The race discrimination claim was an entirely new claim which was out of time. The Tribunal properly considered whether time should be extended to permit the claim to be made and/or whether there was a causative link between the original claim and the proposed amendment."

On that point about a causative link Mrs Andrew has drawn our attention to Housing Corporation v Bryant [1999] ICR 123 CA before Nourse, Peter Gibson and Buxton LJJ.

12. For Mr Animadu, Mr Panton has appeared today. He did not appear before the Employment Tribunal. We have heard his argument and also have his skeleton in front of us. The skeleton makes three points that the oral argument has fleshed out. The first is that the leading case which sets out a number of matters which need to be considered when amendment is sought, including amendment to add a complaint prima facie out of time, is Selkent Bus Co. Ltd v Moore where the EAT under Mummery J set out a list of factors which need to be considered in such an application. They include, as Mr Panton's skeleton points out, the nature of the amendment, the applicability of time limits and the timing and manner of the application. These, says Mr Panton in the skeleton, if considered at all by the Tribunal, were only considered on a very superficial basis. We are bound to say we see no ground for that complaint. So far as we can judge, careful consideration was given to the submissions which the Tribunal received. It may of course, have been that those submissions on Mr Animadu's side, he being in person, were defective, but it is hard to make any criticism of a Tribunal not considering a thing when the thing was not clearly drawn to their attention. The Tribunal, it is to be noted from their paragraph 10, say this:

"The Tribunal considered all the evidence before it and relevant documents, including the IT1, the respondent's letters to the Tribunal of 22 July and 11 August and 19 November 1998."

We have already read the passage where the Tribunal says that it recognises that it has to look at all the circumstances. There is no basis for an argument that the Tribunal was there merely paying lip service to the correct approach. It has to be remembered, too, that both as to the granting of permission to amend and the granting of an extension of time backwards so as to include events otherwise out of time, what the Tribunal has is a discretion. In order successfully to challenge the exercise by the Tribunal of such a discretion, and bearing in mind that we are able only to deal with errors of law, the appellant has to show either that the Tribunal plainly espoused some wrong principle or that it arrived at a result which no Tribunal properly instructing itself could have arrived at. To complain of mere superficiality really goes no sufficient distance, even it is proved, which it is not. It is also worth recollecting the well-known dictum of Lord Russell of Killowen in Retarded Children's Aid Society v Day [1978] ICR 437 that one cannot assume that a Tribunal did not have a thing in mind simply because they did not expressly mention it.

13. A second ground, which the skeleton urges, depends upon the comparatively recent case Ashworth Hospital Authority v Liebling (Unreported 10th March 1997 – EAT/1436/96). Mr Panton draws attention to it in the skeleton to make two points. The first is that it refers to:

"the wide discretion which is given to tribunals in considering whether or not to grant an amendment."

Well, that, of course, is no great assistance to the appellant. In the Ashworth case the EAT was upholding the discretion as it had been exercised by the Employment Tribunal. Here, of course, Mr Panton seeks to set aside the Tribunal's exercise of the discretion and so the task is very different. The second point deriving from the Ashworth case as noted in the skeleton is this:

"As noted in the Supreme Court Practice, the guiding principle of cardinal importance on the question of amendment is that generally speaking all such amendments ought to be made 'for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings.' Secondly, where there is a new claim that is being advanced, then the question as to the exercise of discretion will be affected by a consideration as to whether the amendment adds to or substitutes a new cause of action arising out of the same facts, or substantially the same facts, as those in respect of which relief had already been claimed in the action."

Here, it seems to us, it cannot be doubted but that a new claim, based on new facts, was sought to be introduced. The IT1, although it mentions intimidation, victimisation and harassment, at no point introduces any linkage between those words and discrimination on account of race. The only facts which were then explained in any detail were the facts of 21st April 1998 to 22nd April 1998. Whereas, when particulars were eventually supplied, they related to a whole series of other events on other dates going back to November 1997, January and February 1998 and so on. The particulars served by Mr Animadu in November 1998 are not only often insufficiently specific, which was one of the complaints by the respondent employer at the Tribunal, but are of events not touched on at all in the complaint as made until that date in November 1998 when for the first time particulars were given. The case before us is materially different to the Ashworth case because there the applicant had indicated her intention to amend to add sex discrimination even before the employer had got round to lodging his IT3. This case is substantially different from Ashworth.

14. A third point made in Mr Panton's skeleton was that:

"The Tribunal adopted a narrow approach in deciding whether it was just and equitable to consider the complaint after it had ruled that the Originating Application did not include a claim for race discrimination. The appellant's contention that his dismissal by the respondent was an act of racial discrimination is one of the real questions to be determined by the Tribunal. Evidence about the comparative treatment of white employees involved in the incident that resulted in the dismissal of the appellant is also very important."

This touches on Mr Panton's argument that amongst the issues between the parties that need to be resolved is the question of racial discrimination. It is not enough merely to assert that that is an issue that needs to be resolved. It should have been and was not specified in the IT1. If one takes the IT1 to outline what are the issues that need to be resolved, one sees a number of claims but not amongst them is anything of a racial nature. In our view, there was nothing narrow about the Tribunal's approach in this particular case. The lengthy, even fulsome, IT1, fairly read, contained nothing by way of a complaint of racial discrimination. It was not brought up until the directions hearing on 23rd November 1998. The appellant had had legal advice even before the IT1 was lodged. No particulars of racial discriminatory claims were lodged until 19th November 1998 and even a racial discrimination questionnaire, which could have been lodged and could have provided the complainant with details, was not raised. It was for the Employment Tribunal to balance the potential injustice to both sides. Mr Animadu would, if denied an extension of time and leave to amend, be, of course, unable to complain of acts which some five months after his IT1 and in one case almost 12 months after the events themselves were first specified in his particulars of 19th November 1998. The delays seem to have been unexplained; certainly there is no mention of an explanation of the delay in the reasoning of the Employment Tribunal and nor is it said that there was evidence given which the Tribunal should have paid attention to but has somehow overlooked. That unexplained delay might be taken to be some measure of the lack of serious grounds of complaint in relation to those events. If they were, indeed, so serious, how come they were not specified from the outset when it was decided that complaint should be made? On the other hand, the company, were there to be permission given to Mr Animadu, would have to, at additional cost, no doubt, and, no doubt, also additional delay, have to meet claims which Parliament has decreed should, in the ordinary way, be lodged within three months after the events complained of, Parliament no doubt recognising the difficulty in obtaining information in the employment world where fellow employees and witnesses therefore come and go. Mr Panton rightly says that the Tribunal does not mention the need to strike a balance between the relative hardship to both sides, but, on the other hand, as Mrs Andrew points out, the Tribunal do carefully set out the respective submissions they received from both sides and they do, using the language of Selkent, indicate that they have to take all circumstances into account before deciding. We bear in mind the dictum to which we earlier referred in Retarded Children's Aid Society v Day. In the circumstances, we do not find it possible to say that that balance was not in the Tribunal's mind. Certainly, in our view, it cannot be said that the Tribunal was wrong in law to have done as they did. It cannot, in other words, be said that they came to a result at which no Tribunal properly instructing itself could properly have arrived. It could have been that a distinction could have been drawn between the events before and after 16th March 1998, which was the date three months before the IT1 was lodged on 17th June 1998, but it does not seem that the Tribunal below was asked to distinguish between events in that way, and even as to events after 16th March 1998, there would need to have been some satisfactory explanation of the delay between the events, at the latest, on 30th April 1998 and the first particularised raising of them on 19th November 1998. As we mentioned earlier, none seems to have been given and that distinction has not been drawn before us either. All in all, we are unable to find an error of law, and we do emphasise of law, in this matter, and accordingly, we must dismiss the appeal.