United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MICHAEL DUGGAN (of Counsel) Instructed By: Mr S J Pollitt Messrs Eaton Smith Marshall Mills Solicitors 14 High Street Huddersfield West Yorkshire HO1 2HA
For the Respondent	MR CHRISTOPHER GRAHAM (Solicitor) Instructed By: Messrs Ford & Warren Solicitors Westgate Point Westgate Leeds LS1 2AX


 


MR RECORDER UNDERHILL QC:

1. These proceedings have a complicated history. The essential elements can be set out as follows:

(a) The Appellant, who is black, was employed by the Respondents from 27 April 1994 to 11 June 1998. After the first few months of his employment he was transferred to work as a PCV bus driver.

(b) On 11 August 1997 he started proceedings ("the 1997 proceedings") for unlawful deductions and damages. The essence of the complaint was that other colleagues had been transferred to PCV driving at higher rates of pay than he had been, which he alleged constituted a breach of the collective agreements which governed his contract. The Tribunal heard the claim in January and February 1998 and by Extended Reasons sent to the parties on 25 March 1998 dismissed it, on the basis that the employers had acted at all times in accordance with the terms of the collective agreements.

(c) During the course of 1998 the Appellant brought four further claims against the Respondents in the Employment Tribunal, all of which were in due course consolidated ("the 1998 proceedings"). Three of the claims related to alleged breaches of Section 44 of the Employment Rights Act 1996. The last followed on his dismissal on 11 June 1998 and alleged unfair dismissal, including dismissal for an inadmissible reason under Section 100 of the 1996 Act.

(d) On 14 January 1999 the Appellant lodged what were described as amended particulars of claim in the 1998 proceedings in terms substantially identical to those now raised by these proceedings. The complaint related to the same grievance as had been the subject matter of the 1997 proceedings, but the Appellant claimed that the difference of treatment between himself and the other transferred drivers was on racial grounds. Although this is not spelt out in the amended particulars of claim, it appears from the Appellant's statement, to which we will be referring in more detail below, that the other transferred drivers with whom he compared himself were all white. In truth, the subject matter of the amendments had little in common with the subject matter of the rest of the 1998 proceedings; but the Appellant thought it made sense to have all his claims against the Respondents in one set of proceedings and determined at the same time. The Respondents' position was that the new claim sought to be raised by the amendment should not be joined in the 1998 proceedings and should be raised, if at all, in separate proceedings. They made it clear that they would take a time point in whatever form the claim was raised.

(e) It is unclear precisely how and when the application to permit the amendment first came before the Tribunal. There appears from the papers before us to have been a hearing on 24 February 1999, though we have no order. That hearing was either an interlocutory hearing fixed specially in order to consider the application to amend or it was the first day of the substantive hearing of the 1998 proceedings. It is not necessary for us to resolve this point: in either event, the eventual ruling was that the decision on the application should be deferred. In paragraph 3 of the Extended Reasons, following the substantive hearing in the 1998 proceedings, the Tribunal said as follows:

"3 One further matter was dealt with at the beginning of the hearing and that was a question of an application to amend to add a claim of race discrimination. It was decided by the Tribunal that as no mention in any of these applications was made of race discrimination that claim could not be treated as an amendment but could be treated as a separate application. It was made at a time which was considerably late and so the Tribunal decided that it would hear the application relating to that claim being out of time and whether the Tribunal should exercise its discretion in respect of that claim once the other cases had been dealt with and that the question of time should be dealt with by the same Tribunal (this Tribunal) but if the application to proceed was successful then the case would be heard by a differently constituted Tribunal."

(f) The substantive hearing of the 1998 proceedings took place over several days (there is some uncertainty as to precisely how many or when, although it certainly included several days in May 1999). By Extended Reasons sent to the parties on 14 June 1999 the Tribunal found that the Appellant had been unfairly dismissed but dismissed the other claims in the consolidated proceedings. It did not at that point deal with the adjourned application in relation to the racial discrimination claim.

(g) A Remedies Hearing took place on 19 August 1999. The Tribunal ordered that the Appellant be reinstated.

(h) The Appellant was not reinstated in accordance with the order of the Tribunal. A further hearing to consider remedies was accordingly fixed for 17 November 1999. On that occasion the Tribunal decided not to proceed further pending the outcome of appeals which the Respondents had lodged against the decision on liability and the decision to order to reinstatement. The question of the deferred race discrimination claim arose again. The Appellant made clear that he intended to claim that the failure to reinstate constituted victimisation, and the Tribunal expressed the view that the deferred claim and any victimisation claim should be raised together in fresh proceedings. The Appellant had already anticipated this and on the same day he presented his Originating Application in the present proceedings. This raises (1) the identical claim to that which was sought to be introduced by way of amendment in the 1998 proceedings and (2) an allegation of victimisation in relation to the failure to reinstate. We will refer to the former as "the discrimination claim" and the latter as the "victimisation claim".

(i) By letter dated 10 December 1999 the Respondents took the point that both aspects of the claim were out of time and/or constituted an abuse of the process. A Preliminary Hearing was fixed to hear that application, and it is the orders made on that occasion which give rise to the present appeal.

(j) For completeness, we should mention that various aspects of the Tribunal's order made on 17 November 1999 (embodied in Extended Reasons dated 7 December 1999) were the subject of an appeal to this Tribunal which was heard before the President on 18 January 2000. Although the appeal was allowed to a limited extent, in the events which have happened the decision made on that occasion is now of only academic interest.

2. The hearing of the Respondents' application was held at the Tribunal in Leeds on 9 March 2000. The Tribunal held that the victimisation claim should proceed, and we need say nothing more about that aspect. As for the discrimination claim, the Appellant's employment had ended on 11 June 1998 and that was therefore necessarily the end point for any act of discrimination against him in his employment. Any complaint should therefore have been presented within three months of that date: see Section 68(1)(a) of the Race Relations Act 1976. The present proceedings were presented on 17 November 1999. On the face of it that was well over a year out of time. It is true however that the Appellant had sought to introduce the same complaint by his draft amendment in the 1998 proceedings, which was dated 14 January 1999, i.e. four months after the expiry of the time limit. It is probably right that the Appellant should be given the benefit of the doubt – as, to anticipate, the Tribunal eventually did - and treat him as having first initiated these proceedings in January rather than November 1999.
3. The claim thus being on any view out of time, the question was whether time should be extended under Section 68(6) on the basis that it was just and equitable to do so. The Appellant put in a written witness statement explaining why the claim had not been brought earlier. The Tribunal considered the witness statement but indicated that it was unnecessary to hear the Appellant give oral evidence. It is clear, though this is not spelt out, that that was because it was prepared to decide the case on the basis that the evidence contained in the statement could be accepted, at least for the purpose of that application. On that basis we do not accept the submission of Mr Duggan, who appears for the Appellant, that it was necessary for the Appellant to be called to give oral evidence and be "tested" on the contents of his statement.
4. The essence of the Appellant's statement was that, although he had complained in the 1997 proceedings about the differential in pay between himself and the other transferred drivers, he had not at the time believed that differential to have been on racial grounds. He appears in paragraph 8 of the statement to be saying that that first occurred to him as a result of facts which came out at the hearing in February 1998. However, in paragraph 12 of the statement he says that what "convinced me beyond any doubt that race was an issue here" was his discovery in December 1998 of two further transferred drivers who had been paid at a higher rate than him. These were a Mr Simcock, who is white, and a Ms Roach, who was black. Also in paragraph 12 he said that "what further prompted my bringing of a race claim was my discovery at the same moment (January 1999) of a significant fact": this referred to a Mr Marshall who had been, like the Appellant, dismissed for gross misconduct but had, unlike him, been paid money in lieu of notice.
5. The Tribunal held that the discrimination claim was out of time and that it would not be just and equitable to extend time. Its reasons are set out in paragraphs 4 to 7 of the Extended Reasons. These read as follows:

"4 The amended claim dated 14 January 1999 has at paragraph 6 what is essentially the claim raised in these proceedings under section 1 of the Race Relations Act 1976.

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 applicant agrees that Ms Roach is of the same racial origin as himself. Accordingly, she cannot be a true comparator. Mr Simcock, on the other hand, is of a different racial origin and is accordingly a true comparator.

6 We have decided that, in order to determine the issue before us today, it is not necessary to hear from the applicant in evidence. We have before us the applicant's statement. The applicant's view was formed in February 1998 and the material comparator was transferred to the higher platform rate in May 1998. Giving the applicant the benefit of the doubt procedurally, we can take 14 January 1999 as the earliest date upon which, in a sense, he 'presented' his current complaint of racial discrimination. That was still four to five months out of time if one does not separate the hearing and the more favourable treatment; about 11 months if one does.

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."

6. It is that decision which is the subject of this appeal. The original Notice of Appeal raised a number of points, which were considered at a Preliminary Hearing on 9 June 2000. This Tribunal, with Judge Altman as Chairman, allowed the appeal to proceed on two grounds only which were defined as follows:

"1 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

2 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."

The Employment Appeal Tribunal on that occasion were unclear what material had been available to the Employment Tribunal at the time of its decision. Judge Altman expressed the hope that the position would become clear as a result of disclosure of the Chairman's Notes and some additional materials. In the event, the Chairman's Notes were not very full, and we were not at first supplied with any of the materials which had been before the Employment Tribunal. However, at the start of this hearing we were able to obtain a bundle put together by the Appellant which contains all the significant material that was before the Tribunal. It also contained what appears to be a full, but unauthorised, transcript of part of the hearing before the Tribunal. Since this was included in the bundle by the Appellants and referred to by Mr Graham for the Respondents and (following his lead) by Mr Duggan for the Appellant, we have felt able to refer to this transcript. We have done so with caution, both because of its unofficial nature and because a transcript of argument is not necessarily the best guide to the reasons eventually given. Nevertheless, it has provided some useful background information.

7. We turn to the first of the two issues as formulated by Judge Altman. We accept that if the Tribunal's reasons as expressed in paragraph 7 are read strictly literally, they were plainly wrong. The Tribunal stated that in these proceedings the Appellant was attempting to "resurrect an issue which has already been decided against him by another Tribunal". As Mr Duggan points out, the "issue" raised in the present proceedings, namely "was the Appellant racially discriminated against?", had not been decided against him in the 1997 proceedings, which were not concerned with racial discrimination at all. However, we do not believe that it is right to read the reasons so literally. The Employment Tribunal was very well aware that the legal nature of the claims in the present proceedings and the 1997 proceedings was wholly distinct. It had set out the history in the preceding paragraphs, clearly identifying the nature of the 1997 claims and how the complaint of racial discrimination was first raised; and if reference is made to the unofficial transcript it is still clearer that the Chairman understood the point very well, because he challenged forcefully the contention of Mr Graham for the Respondents that this was a case of issue estoppel or formal res judicata.
8. In our view it is clear that the Tribunal was making a broader point, namely that the substantive grievance raised by the discrimination claim in these proceedings - that is, that the Appellant was paid lower rates than the other transferee PCV drivers - had been the subject of earlier proceedings and had been carefully investigated on that occasion. It took the view that it was not just and equitable that the Respondents should have to go over the same substantive grievance now, two years later, because the Appellant had clothed it in a new legal guise. In our view that was a perfectly proper consideration and was capable of being, as the Tribunal expressed it to be, the decisive consideration in this case. The Tribunal had been referred to the well known principle in Henderson v Henderson (1843) 3 Hare 100, which the Court of Appeal has held to be fully applicable to Employment Tribunal proceedings: see Divine-Bortey v London Borough of Brent [1998] IRLR 525. Although the Tribunal's decision was based on Section 68(6), rather than on an application to strike out as an abuse of process (as is clear from the terms of the formal decision) the underlying principle of fairness expressed in Henderson v Henderson is necessarily relevant in any consideration of what is just and equitable. There might be, as the cases recognise, special circumstances in which it is fair to permit a point to be taken in later proceedings even though it would have been available to the party seeking to take it in earlier proceedings. But the Tribunal plainly did not think that that was so here, and that was a matter for it. We can see no error of law in the Tribunal treating this principle as decisive in the circumstances of the present case.
9. Mr Duggan suggests that the reliance placed by the Tribunal on this single point means that it did not have regard, as it was required to, to all the relevant circumstances, including in particular the Appellant's evidence as to the date at which he first became aware that he could bring a race discrimination claim. But in our view, to decide that in a particular case one circumstance is overwhelmingly decisive does not mean that all other circumstances are ignored. The Tribunal was prepared to accept the evidence given by the Appellant in his statement as to how he first became aware of the possibility of bringing a claim for racial discrimination. That is plainly what it meant by the phrase "whether or not the applicant's belief in a racial motive arose as described by him in his written statement". Whether the Applicant's statement is correctly construed as putting that date in February 1998, as the Tribunal appears to have read it, or December 1998, as Mr Duggan urges on us, is not of real significance given the Tribunal's reasoning. It would, of course, be different if it had decided the case on the basis that he had not acted promptly on first becoming aware that he had a claim; but that was not the basis of its reasoning. The Tribunal's essential point was that the racial discrimination claim was, in principle, available to be decided in the 1997 proceedings and ought in justice to have been raised then. Whether his failure to raise it then was the result of oversight, or bad advice or indeed because he appreciated that there was no real basis for such a claim - or for any other reason - does not affect the justice of the matter as between both parties.
10. We can deal shortly with the second ground permitted by Judge Altman. Mr Duggan accepted before us that the Appellant relied on the treatment of Mr Marshall, who was not one of the transfer drivers with whom the Appellant sought to compare himself, simply as supporting evidence of a possible racial motive in the treatment which was the subject matter of his substantive complaint. It is plain from his statement that it was his discovery of the facts about Mr Simcock (who was, unlike Mr Marshall, another transfer driver) on which the Appellant was primarily relying as having opened his eyes to the possibility of a racial discrimination claim. That being so, the failure of the Tribunal expressly to mention the position of Mr Marshall does not in our view indicate that it overlooked any matter of significance, still less that it fell into any error of law on what was plainly a matter which was within its jurisdiction to decide.
11. We accordingly dismiss this appeal.