United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C SPRATT (Of Counsel) Instructed by: Messrs Baily Gibson Solicitors 30 High Street High Wycombe Bucks HP11 2AG
For the Respondent	MR A KORN (Of Counsel) Instructed by: Thames Valley Police Headquarters Human Resources Dept Oxford Road Kidlington Oxford OX5 2NX


 


MR JUSTICE HOOPER

1. The Appellant appeals a Preliminary Decision of an Employment Tribunal sitting at Reading on 27 April 2000. The Tribunal dismissed the Appellant's complaint of unfair dismissal and he was refused leave to amend his originating application to bring a claim for racial discrimination.
2. The grounds are set out at pages 2-3 of the bundle. Ground 6(a) concerns the relationship between section 200 of the Employment Rights Act 1996 and the Human Rights Act 1998 with the European Convention of Human Rights. For reasons which we shall give later today, we find no merit in that ground.
3. In ground 6(b) the appellant complains that the Tribunal was wrong to conclude that the Appellant: "was not entitled to bring or amend the originating application to bring any claim for racial discrimination or harassment for incidents of discrimination or harassment from the commencement of his employment to his dismissal save for the claim for racial discrimination arising directly out of his dismissal on the ground such claims and the particulars supporting such claims were stale."

In paragraph 6(b)(i)-(v) the Appellant sets out the reasons why, so it is said, this part of the decision of the Employment Tribunal was wrong.

4. This appeal was listed before the Employment Appeal Tribunal on 14 November 2000. His Honour Judge D M Levy QC, Mr B V Fitzgerald MBE and Mr R Sanderson OBE were the members of the Court. Mr Spratt who appears before us today appeared for the Appellant. The Respondent was not represented. His Honour Judge Levy gave a very short judgment.
5. In the first sentence of paragraph 1 His Honour Judge Levy summarised briefly the two grounds. He then went on to say:

"We all consider that there is an arguable point to go forward under the Human Rights Act and in the circumstances we propose to let this appeal go forward to a full hearing."

6. When we read that sentence we formed the tentative view that the Tribunal was only permitting argument at a full hearing on the Human Rights Act point. Some confirmation for that can be found in a note which we have now made available to the parties, prepared by His Honour Judge Levy on 14 November, namely the day of the hearing. The form on which he made the entry is an internal form in which the Tribunal conducting a Preliminary Hearing is asked to express its view as to whether or not this was a case that should have gone straight to a full hearing. His Honour Judge Levy answered 'Yes' to that question and in his comments wrote:

"When the skeleton argument was considered the point on which we all thought it should go forward emerged ie a point on Article 6. The Appellant may well lose but their point appeared arguable."

7. Subsequently the Respondent's solicitor wrote to the Employment Appeal Tribunal asking for confirmation that the full hearing would be confined to ground 6(a). The Registrar responded:

"The Appeal Tribunal at the Preliminary Hearing allowed the Appeal to proceed to a full hearing on the point on Article 6 of the Human Rights Act – Ground 6(a) of the Notice of Appeal."

The letter from the Registrar to the Respondent's solicitor was copied to the Appellant's representative. No action was taken by the representative to contradict the assertion.

8. The Order of the Court as prepared by the associate records:

"The Tribunal orders that the Appeal be allowed to proceed to a full hearing in accordance with the judgment of the Employment Appeal Tribunal."

That takes us no further forward in our attempts to decide what it was that the Employment Appeal Tribunal was deciding on 14 November. Mr Spratt tells us that the hearing lasted only a matter of minutes. If the Employment Appeal Tribunal was minded to dismiss ground 6(b) then it seems inescapable to us that there had to be some oral argument about it and reasons given for dismissing ground 6(b). The absence of argument and reasons does tend to suggest that the appeal was not to be limited to ground 6(a) only.

9. There is a further indicator in the last few words of the first paragraph:

"In the circumstances we propose to let this Appeal go forward to a full hearing."

We take the view that there is doubt about what the Employment Appeal Tribunal on 14 November intended to happen. If the Employment Appeal on 14 November had made it clear that the only ground which could be considered at a full hearing was ground 6(a) and if it had dismissed the appeal on ground 6(b) then we would be bound by that decision. We take the view that it is not practical now to ask the Employment Appeal Tribunal who sat on 14 November what precisely was meant.

10. In those circumstances and conscious of the need to provide a fair hearing to an Appellant we take the view after consideration of the documents to which we have referred that the Employment Appeal Tribunal on 14 November did not dismiss the appeal in so far as ground 6(b) was concerned.

[Further argument]

11. Having heard full argument on ground 6(a), having given judgment as to why we take the view that the Appellant can still argue ground 6(b), we now give our reasons for dismissing the appeal on ground 6(a). The Appellant appeals against a decision of the Employment Tribunal at Reading presided over by Mr J G Hollow. The hearing took place on Thursday 27 April. Extended Reasons were subsequently prepared and sent to the parties on 10 May 2000.
12. It is not necessary for the purposes of this judgment to go into the facts in any detail. It is sufficient to say that the Appellant was at the time a serving police officer and in his originating application he complained of, amongst other things, unfair dismissal. The Tribunal in its extended reasons dismissing the claim for unfair dismissal said:

"Whilst it is clear that the claim for unfair dismissal was presented within the three month time limit, Mr Korn relies on s200 (1). In his submissions Mr Spratt, on behalf of the applicant, concedes that the Tribunal presently has no statutory jurisdiction to entertain a claim for unfair dismissal. It is, however, he submits, anomalous and incompatible with Articles 6(1) and 14 of the European Convention on Human Rights now incorporated in the Human Rights Act 1998 and set out at Schedule 1 thereof. He invites the Tribunal not to dismiss the application saying that if the Employment Rights Act 1996 is incompatible with the Human Rights Act and/or the Convention, there may be an amendment to the employment protection legislation which may enable the applicant to pursue a claim for unfair dismissal in the future. In response to specific questions from the Tribunal, he conceded that the applicant did not seek any remedy for unfair dismissal other than compensation. On behalf of the respondent, it was submitted that the rights referred to incorporated in the Human rights Act 1998 (which is not yet in force) refer to the right to a fair trial and the prohibition of discrimination. There was, it was submitted, nothing in the Act or the Convention which specifically related to unfair dismissal proceedings or disciplinary proceedings under the Police Disciplinary Regulations so as to give rise to the suggestion that the applicant's human rights had been breached in this respect. In any event, any amendment to the employment protection legislation consequent upon the coming into force of the Employment Relations Act 1999, would be most unlikely to be retrospective. It was submitted that there was no justification for leaving the unfair dismissal claim in abeyance at a stage when it is presently conceded that the Tribunal did not have jurisdiction to entertain it.

The unanimous view of the Tribunal is that the claim for unfair dismissal should be dismissed and we do so. The terms of s200 (1) are clear. It is difficult to see, in the context of this present case, what impact the rights referred to might have on the applicant's dismissal following a disciplinary enquiry at which he was represented. The remote prospect of an amendment to the legislation at some future point which might then enable the applicant to pursue the matter does not, in our judgment, justify this claim remaining in abeyance for what may be a very long time."

13. Mr Spratt submits that section 200 of the Employment Rights Act 1996 is incompatible with a Convention right. Section 200 makes it clear that a police officer cannot bring a claim for unfair dismissal. Mr Spratt accepted that section 200 could not be interpreted to permit such a claim. He submitted that by virtue of section 23 of the Employment Relations Act 1999 the Secretary of State has power to modify section 200 so that police officers do have the right to claim to be unfairly dismissed. We shall assume, without deciding the point, that that is right.
14. It follows that either by statutory instrument or by primary legislation section 200 could be amended to give police officers the right to claim for unfair dismissal. That has not been done. It is not suggested by Mr Spratt that it is about to be done. He submitted to the Employment Tribunal that it should adjourn the case without limit of time in case section 200 was amended in either of the two ways which we have indicated. The Tribunal declined to do that holding that there was no justification for this claim remaining in abeyance for what may be a very long time. We unanimously agree with that conclusion which could not possibly be described as perverse.
15. Mr Spratt sought to persuade us that section 200 was incompatible with articles 6 and 14 of the Convention. However, this Court not being a court listed in section 4 (5) of the Human Rights Act 1998 has no power to make a declaration of incompatibility. Section 200 being clear as to its meaning must be applied by this Tribunal whether or not it is compatible with Convention rights. In those circumstances we take the view that to embark on the exercise of deciding whether section 200 is or is not compatible would not be a sensible step to take. If the Appellant wishes to take the point then he will have to do so before the Court of Appeal, if permission to appeal is granted either by this Tribunal or by the Court of Appeal itself. We add that the alleged incompatibility with articles 6 and 14 may raise difficult issues of law and fact. For example the chief constable might wish to show that the rights of police officers under their internal disciplinary procedure are such that they are very fully protected.
16. Mr Spratt further argued that the Employment Tribunal should have adjourned the matter until after the coming into force of the Human Rights Act at the beginning of October 2000. No such submission appears to have been made to the Tribunal. We asked Mr Spratt to elaborate on why it would have been desirable to adjourn the matter until then. Mr Spratt submitted that the Chief Constable by claiming that the Appellant's claim for unfair dismissal was barred by section 200 was doing an act which was incompatible with a Convention right, see section 6(1) of the Human Rights Act 1998.
17. Section 6(2) provides:

"Sub-section 1 does not apply to an act if (a) as a result of one or more provisions of primary legislation the authority could not have acted differently or (b) in the case of one or more provisions of or made under primary legislation which cannot be read or given in effect in a way which is compatible with the convention rights the authority was acting so as to give effect to or enforce these provisions."

18. It seems to us that by relying upon section 200 the chief constable came within sub paragraph (b). Mr Spratt submitted that the Chief Constable had a discretionary power not to exercise the rights under sub-section (2). We have considerable doubts about that argument. Furthermore, although we have not heard any argument about sub-section (5) (private acts), that provides a further difficulty for the Appellant.
19. Even if the chief constable had the discretion to which Mr Spratt referred, and if this is not a case which falls within sub-section 5, there is in our view the insurmountable difficulty that after the coming into force of the Human Rights Act, the Employment Tribunal still had to apply section 200. Even if the Chief Constable said: "Well we are not relying on section 200" the Employment Tribunal had to do so. Mr Spratt accepts that in those circumstances section 200 would have to be applied by the Tribunal.
20. Ground 6(a) is dismissed and we turn to hear the argument on ground 6(b).

[Further argument]

21. We now turn to ground 6(b) of the Notice of Appeal. Did the Tribunal reach a perverse conclusion in deciding that the Applicant needed an amendment to his original application if he was going to rely upon the matters conveniently set out in paragraph 1(a) – (i) of a document headed "Particulars of Unlawful Race Discrimination" served on the Employment Tribunal and on the Respondent on 5 April 2000. It is common ground that the Tribunal at the full hearing will in any event be considering the matters set out in paragraphs 2, 3 and 4 of that document.
22. In those sub-paragraphs two matters are raised. First, an allegation that the reason for the Appellant's dismissal was one of racial discrimination and secondly that the Respondent discriminated on grounds of race against the Appellant by not expeditiously completing the grievance procedure and by not conducting that procedure properly. For example he suggested that the Appellant was only interviewed for some twenty minutes about his grievances. Those grievances were contained in a statement dated 26 January 1999, a copy of which was provided to us at the start of this hearing.
23. Reading paragraphs 11 and 12 of the decision of the Tribunal it is clear that Mr Korn persuaded the Tribunal that the matters in paragraph 1(a) – (i) of the "Particulars of Unlawful Race Discrimination" required an amendment to the originating application. Persuaded by that argument, the Tribunal refused leave to amend the originating application. Mr Spratt who had appeared for the Appellant before the Tribunal had not sought an amendment. He had argued that no amendment was necessary. Nonetheless, having accepted Mr Korn's submission that an amendment was necessary, the Tribunal then refused leave to amend.
24. The question which we have to resolve now is whether the decision of the Tribunal that leave to amend was necessary was a decision which was perverse. We have unanimously reached the conclusion that it was perverse. To substantiate that conclusion it will be necessary to examine a number of documents. Many of these documents were (understandably) only placed before us during the course of the hearing.
25. Because Mr Korn had not come to the Tribunal prepared to deal with 6(b), we invited him to have as much time as he needed to prepare his arguments and if necessary for the matter to be adjourned. Mr Korn accepted that he was able to present his submissions on this part of the case today. He did not need an adjournment. We should add that he represented the Respondent before the Employment Tribunal. We are grateful to him.
26. The first document we look at is the IT1 served on the Tribunal on 4 November 1999. Before looking at that it is helpful to set out some of the salient dates. The Appellant was employed by the Respondent on 27 April 1992. On 5 August 1998 the Appellant went sick and since that date he has not returned to work. In November 1998 he was suspended from duty following a number of allegations or charges being made against him. In January 1999 he submitted the complaint about his previous treatment to which we have already made reference. On 5 August 1999 a disciplinary inquiry was held. The Appellant pleaded to one charge of acting in a manner reasonably likely to bring discredit on the reputation of the force or the police service in that he used information solely for use in a police investigation for his own private purpose. Details of that charge involving him telephoning a 14 year old female whom he had come across during an investigation into an alleged crime. For that, the punishment was dismissal.
27. He was found to have committed four other offences which resulted, in two cases, in a requirement to resign and, in the other two cases, a reprimand. They involved telephoning a Mr and Mrs Mughal and an allegation that he had made threats to Mr Mughal. Thus the Appellant was dismissed on 5 August 1999. The next event was that on 26 August 1999 the Appellant received a response to his complaint submitted in January. We have not seen that response but the effect of it appears to have been that the Respondent had inquired into the matter and that there was insufficient evidence to support the allegations. We take that from the Appellant's IT1 and it may be that this is an inadequate summary of that letter.
28. We turn then to the IT1. This is not a satisfactory document albeit that it was signed by solicitors for the Appellant. Paragraph 1 refers to the Appellant's complaint being about (a) unfair dismissal (the matter we dealt with first this morning), secondly, race discrimination/harassment, third, personal injury. In paragraph 9 it stated that the Appellant wishes to claim compensation only "and his complaint is only about dismissal". That contradicts what is set out in paragraph 1 and certainly contradicts what is set out under the heading "Statement of Case". It also contradicts what is set out in paragraphs 2, 3 and 4 of the "Particulars of Unlawful Race Discrimination" in that it is accepted that the complaint about the manner in which the grievance was handled is a matter that will be considered by the Tribunal.
29. We turn to the Statement of Case which reads as follows:

"The Applicant was dismissed by the Respondent following a disciplinary hearing on 5^th August 1999. The dismissal was by written notification dated 5^th August 1999.

In January 1999 the Applicant submitted a claim for racial discrimination and harassment. This was not dealt with expeditiously as far as the Applicant was concerned, and he received notification after the termination of his employment with the Respondent that the Second Respondent believed that a comprehensive enquiry had taken place and that there was insufficient evidence to corroborate the allegations.

The said notification was given by letter dated 26^th August 1999.

The Applicant has not been given any further details of what form the enquiry took and what investigations were made. The Applicant was not appraised of the development of the enquiry.

The effects of discrimination and harassment led to personal injury being caused by the Applicant, full details of which will be supplied to the Respondent in due course but the Respondent is aware of certain injuries to the Applicant because of the time the Applicant was absent from work during his employment with the Respondent.

At the disciplinary hearing that led to the Applicant's dismissal the Respondent did not take account of the effect that discrimination/harassment had in their findings.

Further, the Respondent, only dealt with the matter of discrimination after the disciplinary hearing despite the serious nature of the allegations when it would have been proper in all the circumstances to have dealt with it openly and before the disciplinary hearing.

Accordingly the Applicant claims damages from the Respondent."

30. It will be seen that the second, third, fourth, sixth and seventh paragraphs relate to the dismissal and to the handling of the grievance. It is agreed by Counsel that the paragraph which is of relevance to the issue which we have to decide, is the fifth paragraph. At the end of what was a lengthy analysis of the documents it came clear that the question is: "In that paragraph is the Appellant referring back to his complaint about the manner in which his grievance was handled or is he making (as Mr Spratt submits) a further free standing complaint?"
31. Mr Korn submitted that the words "the effects of discrimination and harassment" were a reference to the discrimination and harassment that followed from paragraphs 2, 3 and 4. In our judgment that cannot be right. It is being alleged that the effects of the "discrimination and harassment" led to personal injury, full details of which will be supplied to the Respondent in due course, but about some details of which the Respondent is aware, because of the time that the Appellant was absent from work. Although there is some confusion as to the date from which he was absent, we are proceeding on the assumption that he went off sick on 5 August 1998 and did not return to work thereafter. It must follow that the discrimination and harassment to which the Appellant was referring is something which had led to the alleged personal injury and was connected with his absence from work.
32. The Respondent had understandably maintained the position that once he had ceased "working" on 5 August 1998 there was no opportunity to discriminate and harass him other than by the handling of the grievance procedure. Secondly, it seems to us that the words "discrimination and harassment" could not relate to the manner in which the grievance was handled as set out in paragraphs 2, 3 and 4. The manner in which it was handled might constitute discrimination but it is difficult to see how it constitutes harassment.
33. Thirdly, we note that in the first sentence of the second paragraph there is a reference to a claim for "racial discrimination and harassment". In January 1999 the Appellant had submitted a lengthy complaint and asked for it to be investigated. It seems clear to us that in the fifth paragraph what was being there incorporated was the allegation of discrimination and harassment which had been referred to in the letter of January 1999.
34. Those reasons alone would be sufficient for reaching the conclusion that to interpret the fifth paragraph as referring only to the manner in which the grievance was handled would be perverse. We accept that the paragraph is not happily worded. To give one example the words "full details" could be read as referring to personal injury or could also be read as referring to discrimination and harassment.
35. However, the matter does not end there. Mr Spratt points out that in the IT3 the Respondent appears to have interpreted this document in the same way that we have. It is there claimed that the alleged acts of discrimination and harassment took place more than three months before the Application was presented. We turn to a letter of 24 December. On 10 December the Chairman of the Tribunal had sent a letter to the solicitors asking for full particulars. In the second paragraph, the letter states:

"The Chairman is concerned that the originating application gives no detail of the allegation which the Applicant seeks to pursue nor of the personal injuries sustained."

36. There then follow the lengthy letter of 24 December which recounts events going back as far as 1993 and refers to a number of events in 1996. There is in that letter a reference to absence from duties, which at least on the face of it seems inaccurate.
37. The solicitors then sought to include the contents of that letter in an amended Notice of Appearance. The solicitors for the Respondent took the view that leave would be needed to rely upon that document and so wrote in a letter of 3 February. We can see by a letter of 7 February that that letter of 3 February was a success. We have been given a letter sent to Mr Korn by the solicitors saying that the Appellant's solicitors were not seeking now to amend their originating application:

"and have asked for those recent papers to be binned"

38. On 15 March there was a Preliminary Hearing and the Tribunal gave the following direction amongst others:

"The applicant is to particularise all acts upon which he will rely to support the assertion of discrimination on grounds of race and in particular, in support of the assertion of a "continuing act". Such particulars are to be served upon the Respondent with a copy to the Tribunal on or before 5 April 2000. If the Applicant shall fail to comply with this Direction, the Tribunal may strike out the application."

39. It seems likely, although we cannot be certain, that the Tribunal had before it the letter of 24 December but felt that more was needed. The Tribunal also ordered that there should be a further preliminary hearing at which the Tribunal would decide whether it had jurisdiction to hear a complaint of unfair dismissal in the light of section 200 (1) of the Employment Rights Act 1996 and secondly: "Whether the application in respect of discrimination on the grounds of race was presented in time."
40. In accordance with the first of those directions and (on the last day) the document "Particulars of Unlawful Race Discrimination" was served. It had been prepared by Mr Spratt. Although the Tribunal had on 15 March ordered that at the further Preliminary Hearing the Tribunal should decide whether the application in respect of discrimination was presented in time, the Tribunal decided to treat the document prepared by Mr Spratt as an application to amend in so far as the matters to be found within paragraph 1 is concerned.
41. For the reasons we have given, we take the view that no amendment was necessary. That is not to suggest that the IT1 was a perfect document. It was far from it. It is unfortunate that it was prepared in the manner it was by a firm of solicitors. Nonetheless, we take the view that that fifth paragraph did plead the issues of which further details were to be given in the letter of 24 December and finally in the document served on 5 April. The appeal on Ground 6(b) succeeds.

[Further argument]

42. We have now heard argument from both Counsel as to what is the proper order to make. Mr Spratt submits the matter should be remitted for further consideration. Mr Korn accepts that but wishes to have it made clear that when the matter is reconsidered, the Tribunal will need to consider whether an extension of time is necessary and whether to grant such an extension. We agree. We order that to be done at a Preliminary Hearing before a different Tribunal.