United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T OKPOKO (Of Counsel) Instructed By: Messrs Chiltons Solicitors Refuge House 9 - 10 River Front Enfield EN1 3SZ


 


MR RECORDER BURKE QC

1. This is the Preliminary Hearing of Mr Madamidola's appeal against the decision of the Employment Tribunal sitting at Watford, chaired by Mr McMullen QC and promulgated with extended reasons on 9 July of last year. By that decision so far as Mr Madamidola is concerned, and we say that because two other Applicants' cases were being dealt with at the same time, his claims, which were refined at the hearing so as to establish that they were claims of unfair dismissal and that he had been the subject of race discrimination by the West London Mental Health NHS Trust, were dismissed because they were presented out of time.
2. The original Notice of Appeal in this case did not raise any points which appeared to us, on a preliminary reading at least, to be arguable. We need say nothing more about them because they are no longer pursued.
3. Mr Madamidola has obtained advice from a Solicitor, Mr Orpoko, who has appeared in front of us today and who has drafted, or another solicitor on his behalf has drafted, an amended Notice of Appeal, which was intended to be wholly in substitution for the original Notice of Appeal. By that amended Notice of Appeal, one new ground of appeal is put forward, namely that the Tribunal erred in law in its decision under section 68(6) of the Race Relations Act 1976 that it was not just and equitable to allow the claim to proceed despite the fact that it had been presented out of time, i.e. later than the three month primary time limit.
4. Mr Orpoko first of all asks us to give leave for that amended Notice of Appeal; but as we have pointed out to him, if it does not contain any arguable case there is no point in our giving leave; if it does, then of course we would be likely to give leave. We therefore asked Mr Orpoko to address us on the merits of the amended ground of appeal, as he has done with admirable clarity. The sole point which is taken, is this. It is submitted that the Tribunal failed to take account of the fact that the employers were still, well after the last events of which complaint is made, namely the events of 13 & 14 April 2000, investigating what had happened. Mr Madamidola, it is said, had written (or some others had written on his behalf) letters which indicated that there were continuing investigations; nothing definite was coming back from the employers. Reference is made to a letter in our bundle dated 9 June, which is addressed to Mr Madamidola by the employers and which says:-

"I am currently investigating the issues raised by patient PH and will contact you shortly to discuss your statement but in the meantime, you will not be offered any bank work"

The difficulty with this submission is, as Mr Orpoko has frankly accepted, that no evidence other than in that letter was given by Mr Madamidola to explain his delay as it is now sought to be explained to us. It is clear from the Tribunal's decision that Mr Madamidola's case was supported by Mr Akinsamin, who is said by the Tribunal to be an experienced Trade Union representative and who was acting as Mr Madamidola's advocate but also, it seems from paragraph 11 of the decision, was a witness. Neither, it is suggested, gave any evidence to support this explanation. That being so, it is hardly surprising that the Tribunal has not taken it into account.

5. Let us assume that it was part of Mr Madamidola's case that the delay had been caused in some measure by what had happened in relation to investigation. Nevertheless, we do not see that the Tribunal's decision could arguably be said to have been wrong in law.
6. The question as to whether it is just and equitable for a time limit in a discrimination case to be set on one side so as to allow an application to proceed despite the expiry of the primary time limit is one of fact and discretion for the Tribunal; and the Appeal Tribunal will only very rarely intervene. In this case the Tribunal has found as fact, first of all that the Originating Application should have been presented on or before 13 July and not, as it was, on the 14 September.
7. Well before the 14 July, according to the findings of the Tribunal, on 19^th May indeed Mr Madamidola had been in receipt of legal advice. He was, the Tribunal found, aware that there was a three month time limit. He was of the view that he was awaiting a response from the Respondent; but he was aware of the time limit, was in receipt of advice and indeed, by 20 June, he had himself made out an Originating Application to the Tribunal. He had apparently faxed it to the wrong number, he informed Mr Akinsamin of all this and gave him a copy of the document or at least made him aware of what had happened; but neither Mr Akinsamin or Mr Madamidola took the matter any further.
8. Mr Akinsamin had experience of handling Tribunal claims. Obviously both of them knew of the time limits; and the Tribunal came to the conclusion that there was no sensible explanation of the failure to present the Originating Application considerably earlier than it was; even if not within the original time limit, the Tribunal found that the Originating Application should have been presented by Mr Akinsamin no later than 20 July.
9. Having regard to the findings they had made as to Mr Madamidola's knowledge of his rights, his knowledge of the time limits, his reliance on experienced advice and his own error in failing to obtain the correct fax address or send a hard copy to the correct address, the Tribunal reached the conclusions that it did. These were conclusions which the Tribunal was entirely entitled to reach. We see no error of law in its decision; and this appeal must therefore be dismissed. That being so we need no longer consider whether to allow or refuse the application to amend the Notice of Appeal. There is no arguable case that could be made out upon the amended Notice of Appeal were we to allow the amendment. The appeal is therefore dismissed.