United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	JAIN SWANN (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE PETER CLARK

1. This case is presently proceeding before the Stratford Employment Tribunal. We have before us an appeal by Mr Edeogu, the Applicant, against the decision of a Tribunal chaired by Mr J Cole (the Cole Employment Tribunal) sitting on 5 June 2001 dismissing the 1^st Respondent, the London Borough of Newham (Newham) from the proceedings. The complaint of race discrimination against the 2^nd Respondent, Stratford Circus is listed to be heard on 29-31 October 2001.

Background

2. The Applicant has, since April 1993, been employed part-time by Newham as front of house manager at the Stratford Town Hall.
3. On 3 April 2000 he commenced further part-time employment as an Administrative Assistant with the 2^nd Respondent. The director in charge at the 2^nd Respondent was Jon Harris.
4. In June 2000 the Applicant applied for a full-time post as house manager with Stratford Circus, the2nd Respondent. He was interviewed by Mr Harris on 24 July. On 27 July he was informed that his application had been rejected.
5. On 25 October 2000 he presented his Originating Application to the Employment Tribunal, naming Newham only as Respondent. Subsequently Stratford Circus was joined as 2^nd Respondent.
6. The claims are resisted. On 30 March 2001 a directions hearing took place before a chairman, Mr Q Barry. The directions given on that occasion are recorded in a letter to the parties dated 11 April.
7. The principal issues identified on that occasion were whether either Respondent was guilty of:

(1) direct race discrimination and

(2) victimisation

8. The Chairman went on to identify 2 further issues fit for a preliminary hearing:

(a) whether the 1^st and 2^nd Respondents were associated employers of the Applicant and

(b) whether the claim brought against the 1^st Respondent Newham was out of time and if so whether it was just and equitable to extend time.

9. It was those 2 preliminary issues which came before the Cole Employment Tribunal.
10. By their decision the Cole Employment Tribunal record:

(a) that the Appellant accepted that Newham is not a proper Respondent to his complaint against Stratford Circus, relating to his non-appointment to the full-time post in July 2000 (see reasons, paragraphs 13 and 18) and

(b) that the complaints against Newham were out of time and that it was not just and equitable to extend time.

11. Accordingly Newham was dismissed from the proceedings.
12. The grounds of this appeal, set out in a Notice dated 31 July 2001 are whether the Cole Employment Tribunal erred in not examining the question, posed by Mr Barry in the directions letter of 11 April 2001, as to whether the 1^st and 2^nd Respondents were associated employers of the Appellant within the meaning of s231, Employment Rights Act 1996, thus denying the Appellant the opportunity to examine Associated Employer issues in relation to s218(6) of the Employment Rights Act; whether Mr Cole's decision that the issue of Associated Employer was not a legally tenable issue in law, and whether the discarding of the Associated Employer issue raised in the Barry directions order could be interpreted as a procedural issue that may impact on other aspects of the case.
13. The short answer to the appeal as formulated, as Miss Swann now accepts on behalf of the Appellant, is that the question whether the 1^st and 2^nd Respondents were associated employers for the purposes of Employment Rights Act is wholly irrelevant to the issues in this case of race discrimination/victimisation. That question can only be relevant to the question of continuous employment under the Employment Rights Act. It simply does not arise here as Miss Swann acknowledges and accordingly all original grounds of appeal are abandoned and it follows, dismissed.
14. However, Miss Swann has sought permission to amend the notice of appeal to raise a number of new matters. They are formulated as follows:

(1) whether the Tribunal should have exercised its discretion under s68(6) of the Race Relations Act 1976 to permit the Appellant's complaint against the 1^st Respondent to proceed because the last act complained of occurred on 25 July 2000, consisting of a conversation between representatives of the 1^st and 2^nd Respondents, which gives rise to a complaint of victimisation against the 1^st Respondent arising out of earlier protected acts done by the Appellant in the course of his employment with the 1^st Respondent. As to that point there are 2 difficulties. The first is whether or not the Appellant raised below as a matter of evidence or argument the submission that the last act complained of as against the 1^st Respondent was a conversation between the 1^st Respondent and 2^nd Respondent on 25 July. We have scanned the Originating Application, the Employment Tribunal's reasons, the Appellant's notice of appeal, the Appellant's skeleton argument in this appeal and the Appellant's chronology attached to that skeleton argument and nowhere are we able to discern that the factual contention was raised before the Employment Tribunal, nor the argument that that was the last relevant act in time complained of against the 1^st Respondent. Even had the point been raised evidentially it is quite clear from the Employment Tribunal's reasons at paragraphs 13 and 18 that the Appellant conceded that in the circumstances Newham ought to be removed as a Respondent in these proceedings.

15. Now by way of amendment to the notice of appeal he seeks to resile from that concession. Points once conceded cannot ordinarily be taken again on appeal save in exceptional circumstances - see Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 (Court of Appeal). Miss Swann submits that exceptional circumstances do arise in this case. She puts forward two. The first is that the explanation given by the chairman as to the legal position was inappropriate and wrongly resulted in the Appellant making the concession that is there recorded.
16. We reject that as amounting to an exceptional circumstance. It frequently happens, particularly with parties in person, that an exchange takes place with the chairman when the chairman explains his or her understanding of the legal position. It is then for the party either to press the point or if he sees fit to abandon it. There is nothing exceptional in the course of events in this case.
17. Secondly, she relies upon the fact that the concession was made in those circumstances by an Appellant in person. It has been made clear since .Kumchyk v Derby City Council [1978] ICR 1116 in this Employment Appeal Tribunal, a decision approved by the Court of Appeal in Jones v Burdett Coutts School that the inexperience or indeed incompetence of a party or his representative is not a ground for permitting a new point to be taken. In these circumstances we shall not allow that amendment.
18. The second way in which it is sought to put the case by way of amendment to the notice of appeal is a complaint that at paragraph 17 of the Employment Tribunal's reasons they failed to give adequate reasons for not permitting the claim against Newham to proceed on the just and equitable grounds in section 68(6) of the 1976 Act.
19. We are quite unable to see any force in that submission. The Employment Tribunal set out at paragraph 16 the submissions made on behalf of the 1^st Respondent. They indicate at paragraph 17 that they accept those submissions and they go on to add reasoning of their own. In particular they point out that the Appellant himself gave no clear reason to explain his delay in bringing proceedings.
20. In these circumstances we shall not allow that further amendment to be made and it must follow we shall dismiss the appeal.