United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR FERGUS MALONE (Representative) Free Representation Unit Peer House 4th Floor 8-14 Verulam Street London WC1X 8LZ


 


HIS HONOUR JUDGE J R REID QC

1. This is a Preliminary Ex Parte Hearing of an appeal by Mr Botan against the decision of an Employment Tribunal which determined by way of an interlocutory point in the course of a hearing that he was only entitled to raise one issue of discrimination on the ground of race.
2. The way in which this matter comes about is that Mr Botan was a security guard employed by the first Respondent, Golden Knight Security Ltd, at the site of the second Respondent, Murphy & Sons Ltd, the well known construction company. As a result of differences he was dismissed. He brought proceedings in which his original claim contained three heads. The first was direct and/or indirect race discrimination which, depending on how you read it, refers to either one or two incidents. I have to say that I read it as referring to one incident but I am told that it may be intended to refer to two. Secondly, there was a claim for breach of contract and thirdly, a claim for unlawful deduction of wages.
3. That was followed by a letter to the Tribunal from the Tower Hamlets East Citizens Advice Bureau which wrote to tell the Tribunal that it was now acting as Mr Botan's representative. They asked that a date that had been fixed for an Interlocutory Hearing should be changed. They asked for a change of location of the hearing. They asked for an amendment of the Originating Application by, amongst other things, substituting a new statement by Mr Botan setting out the bulk of his complaint. That further statement contained indubitably three allegations relating to racial discrimination, one in November and two in December.
4. At the Directions Hearing a number of issues were clearly canvassed. Unfortunately Mr Botan was not present himself at that hearing but his representative was. As a result of the hearing the Chairman made a number of directions. The first of those directions was in these terms:

"2 The Issues

The issues for determination by the Tribunal are as follows:

2.1 Whether the First and/or the Second Respondent treated the Applicant less favourably on account of his race pursuant to section 1(1)(a) and section 4(2)(c) of the Race Relations Act 1976 in relation to an incident [and I stress the words 'an incident'] that took place at the Second Respondent's site in November 1999."

Paragraphs 2.2 and 2.3 then go on to deal with breach of contract and the unauthorised deduction from wages. Paragraph 3 of the Directions is in these terms:

3 Further and Better Particulars

3.1 It was agreed and the Chairman ordered that the Applicant should provide Further and Better Particulars of the claim of race discrimination against the First and Second Respondent setting out full details of the matter complained of in November 1999, comparators and dates. In addition the Applicant should provide Further and Better Particulars of its claim of unauthorised deduction from wages against the First Respondent. These Further and Better Particulars are to be provided by 1 December 2000."

Paragraph 3.2 required the First Respondent, that is Golden Knight Security, to give some Further and Better Particulars. Paragraph 12 was in these terms:

"12 Further Directions

If you have any queries arising from this letter or if any further direction are required, application should be made as soon as possible."

No query was raised about that letter, no further direction were sought and the matter came for hearing on 1 and 2 May 2001. Suffice it to say that in relation to the financial claims, the claim for breach of contract was dismissed but an order was made for payment of a little over £800 for damages for breach of contract in relation to another breach and for unlawful deduction of wages.

5. So far as the complaint of discrimination on the grounds of race against both Respondents is concerned, that was dismissed, but the only issue which the Tribunal considered was the November incident. At paragraph 2 of their Extended Reasons the Tribunal dealt with the question as to whether or not the other two incidents were open for their decision in this way:

"At the outset of the hearing a question arose as to the issues to be decided in relation to discrimination on the ground of race. Mr Botan was represented at the Interlocutory Hearing held on 23 November 2000, at which the issue was identified as: -

"Whether the First and/or the Second Respondent treated the applicant less favourably on account of his race pursuant to section 1(1)(a) and section 4(2)(c) of the Race Relations Act 1976 in relation to an incident that took place at the Second Respondent's site in November 1999." "

ie they cite the words in paragraph 2.1 of the Directions letter. They then refer to the Further and Better Particulars order and paragraph 12, and at paragraph 5 of the Judgment they say this:

"In fact, another incident was referred to in the Originating Application and Mr Botan wished to rely on that and on a further matter concerning the fixing of the timing of the beginning of shifts. The Respondents, relying on the Interlocutory Hearing and subsequent correspondence, came to the Tribunal only prepared to deal with the incident of November 1999. It seemed to two members of the Tribunal that the Tribunal should only deal with the allegations of race discrimination identified at the Interlocutory Hearing and in the subsequent correspondence. Those were allegations pursued by Mr Botan's representative, both at the Interlocutory Hearing and in subsequent correspondence. [ie by the Better Particulars, I think] To deal with other matters would undermine the significance of the Interlocutory Hearing and of the Further Better Particulars provided in consequence of it. If Mr Botan's representative had not agreed with the terms of the interlocutory letter, there was a clear invitation to raise that disagreement, but that was never done. Further, the majority considered that the Respondents, having come to the Tribunal today to deal with the matters specified, it would not be reasonable or fair to add to their trouble and expense by adjourning to another day to enable them to prepare to deal with the additions matters."

They then record the view of the dissenting lay member.

6. It is said, on behalf of Mr Botan, that the Tribunal were wrong in taking that approach, that the Directions Hearing could not limit what was in the amended ET1 and that therefore Mr Botan was deprived of a fair trial. In our judgment that argument is hopeless. The point of a Direction Hearing is to deal with procedural matters amongst other things by trying to identify issues which are to be disposed of. Rightly or wrongly, the Tribunal determined that there was only one racial incident to be disposed of and they so said, hence the wording of paragraph 2.1 of the Directions letter. Were that incorrect it would have been open to the representative of Mr Botan to take the matter up with the Tribunal. He could, pursuant to paragraph 12 of the letter, have asked for further directions or raised a query. He could have asked for the decision to be reviewed and if the worse came to the worst he could have appealed against that decision. He did none of those things. The result of that was that when the hearing came there was only one matter which required to be decided and only one matter with which the Respondents were prepared to deal. The Tribunal were entirely within their rights to refuse to allow matters to be added to the issues to be decided and to refuse to allow an adjournment so that in effect the scope of the hearing would be widened.
7. In those circumstances we can see nothing whatsoever wrong with the decision which the Tribunal took. There is no substantive point to this appeal and it would be wrong to allow it to go to a Full Hearing. It will therefore be dismissed at this stage. What we say has of course no impact on the question of whether or not Mr Botan has any remedy against the advisors that he then had and indeed, looking at his credibility as found by the Employment Tribunal, whether the remedy, if he has it, is of any pecuniary worth. The appeal will therefore be dismissed at this stage.