At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE ELIAS
MRS C BAELZ
MR D A C LAMBERT
APPELLANT | |
(2) SOUTH WALES POLICE (3) KENT COUNTY CONSTABULARY |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
EAT/1404/01/MAA For the Appellant |
MR ANDREW GUMBITI-ZIMUTO (of Counsel) Instructed by: Cardiff Law Centre 41/42 Clifton Street Adamstown Cardiff CF24 1LS |
For the 2nd Respondent 1st and 3rd Respondents |
MR JONATHAN WALTERS (of Counsel) Instructed by: Force Solicitor's Office South Wales Police Police Headquarters Cowbridge Road Bridgend CF31 3SU No appearance or representation by or on behalf of the 1st and 3rd Respondents |
EAT/241/02/SM For the Appellant |
MR ANDREW GUMBITI-ZIMUTO (of Counsel) Instructed by: Cardiff Law Centre 41/42 Clifton Street Adamstown Cardiff CF24 1LS |
For the Respondent | No appearance or representation by or on behalf of the Respondent |
THE HONOURABLE MR JUSTICE ELIAS
The facts
The Cardiff Decision
"We direct ourselves that the tribunal has a wide discretion in this matter. That discretion must be exercised judicially and not simply on a whim or sympathy. We conclude that we must look particularly at the issues of the delay and the reasons for the delay and the question of any prejudice and the balance of any prejudice to one party as opposed to the other."
Mr Gumbiti-Zimuto, who has presented arguments most ably on behalf of the Appellant in this Tribunal, accepts that that is a perfectly proper direction and it is not necessary for us to go into the law on this matter.
"6 We conclude that the delay itself is not particularly excessive but the explanation for not pursuing this matter properly is in essence a simple reluctance on the part of the applicant. He had not been misled by the respondent or has been mistaken by any set of facts on any relevant matter. He was a highly qualified individual and was of the view that his failure to obtain at least an interview was because of discrimination. Those are the facts on which he based his view and it would have been open to him to proceed and if necessary make the decision to subsequently withdraw or confirm his decision to litigate after examining the content of any questionnaire.
7. We take the view that if one has a complaint then it should be prosecuted promptly. Especially in cases such as this, one should not sit on one's hands and wait for the time when one's mind changes. This is especially important in this case because although the delay itself is not particularly excessive as earlier expressed the delay does have crucial consequences.
8. We accept that all the relevant documents in this matter have been destroyed and that there will be prejudice against the respondent because it is their case that the applicant's application was the subject of attention merely because it had such unusual characteristics in a sense the qualifications were far superior to any others. This drew the attention and suspicion of those considering the applications. If the other applications are not available then it is impossible for the respondents to sustain that allegation and confirm it with documentary evidence which otherwise they might seek to do. We think that is a serious prejudice and combined with the failure of the applicant in our view to give an adequate reason as opposed to an explanation for the delay we do not think that it is right to exercise our discretion to extend the period for presentation of the Originating Application."
The Appellant challenges the exercise of this discretion.
The Kent Decision
"No adequate explanation has been given for the delay in seeking leave to amend. The application to amend should have been made promptly. We accept Miss Garner's submission that the delay would make it more difficult for the Respondent to investigate the proposed allegation. In all the circumstances we have decided not to allow the proposed amendment."
Mr Gumbiti-Zimuto puts the case in relation to this matter very shortly. He submits that there was simply no basis on which the Tribunal could properly have found that there would be any prejudice to the Respondent. The way in which the amendment was put simply relies upon the communication of certain information from the Kent Constabulary to the other two Forces. The relevant material, and any relevant investigations which bear on that matter, will have to be carried out in any event when the Kent Constabulary is defending the claim that it has discriminated, which claim was allowed to go forward by the Tribunal.