United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANDREW HOGAN (Of Counsel) Instructed by: The Treasury Solicitors Queen Anne's Chambers 28 Broadway London SW1H 9JS
For the Respondent	MISS JENNIFER JONES (Of Counsel) Instructed by: Messrs Hand Morgan & Owen Solicitors 17 Martin Street Stafford ST16 2LF


 


JUDGE BIRTLES

Introduction

1. This is an appeal from the decision of an Employment Tribunal sitting in Nottingham on 17 October 2002. The decision was sent to the parties and entered in the Register on 30 October 2002. The Chairman of the Employment Tribunal was Mr J Blackwell and the members were Mr J M Bonham and Mr T Southerd.

The Material Facts

2. By an Originating Application received at the Employment Tribunal on 8 April 2002 Mr Hammouda alleged race discrimination and breach of contract against his former employer HM Prison Service. Mr Hammouda had been employed as an Operational Support Grade from 1 June 2001. It was alleged against Mr Hammouda that he had made inappropriate comments regarding the terrorist attacks on the World Trade Centre and the Pentagon on 11 September 2001. He denied making any inappropriate or racial comments. His conduct was investigated by the Prison Service and on 21 September 2001 he was informed by letter that he was suspended from work for making alleged racist comments. The suspension was on full pay. On 8 and 9 January 2002 Mr Hammouda was the subject of a disciplinary hearing and on 9 January 2002 he was dismissed for gross misconduct. That dismissal was confirmed by letter dated 10 January 2002. The grounds of the dismissal related not only to the remarks alleged to have been made by Mr Hammouda on 11 September 2001 but also in respect of remarks constituting racial hatred expressed by him on or around 10 July 2001. Mr Hammouda appealed against that decision. The appeal was dismissed on 15 March 2002. Mr Hammouda commenced proceedings in the Employment Tribunal as already indicated. The details of the complaints set out in the Originating Application recite the history of the matter (paragraphs 1-20) in chronological sequence. However, it is important to set out paragraph 5 of the Originating Application which says this:

"5. The Applicant was subjected to racial comments and abuse by staff of the Respondent throughout his employment with them."

Paragraph 21 of the Originating Application denies that Mr Hammouda had made the alleged remarks he was accused of and which were found to have been made by him. We set out the remainder of the Originating Application which said this:

"22. The Applicant claims that he was subjected to disciplinary measures which would not have been taken against individuals of a different racial background.

23. In addition and or in the alternative, the Respondent failed to allow the Applicant his right to freedom of expression under Article 10 of the Human Rights Act 1998.

24. The Respondent subjected the Applicant to a detriment by not properly investigating the allegations made against the Applicant.

25. Further, the Respondent failed to adhere to their disciplinary procedure and appeal procedure.

26. The Applicant seeks:-

1) a declaration that he has been subjected to racial discrimination/victimisation by the Respondent

2) compensation for injury to feelings and all other losses

3) an Order for re-instatement or re-engagement."

The Employment Tribunal Decision

3. The matter came before the Employment Tribunal on 17 October 2000 for a full hearing. We have heard from Counsel for both parties who appeared there and who appeared before us today. The Chairman did what is often done at an Employment Tribunal which is to try to identify the issues which the Employment Tribunal has been asked to consider. The discussion resulted in the Tribunal deciding that the claim for breach of contract was dismissed on withdrawal by the Applicant and that the complaint of victimisation under section 2 of the Race Relations Act 1976 was also dismissed on withdrawal by the Applicant. Furthermore, the Applicant conceded through his Counsel that there was no independent claim under Article 10 of the Human Rights Act 1998.
4. What the Employment Tribunal did do was to hold that the complaint in paragraph 5 of the Originating Application set out above should be permitted to proceed notwithstanding that it was served outside the 3 month limitation period contained in section 68(1) of the Race Relations Act 1976. The Employment Tribunal decided that it was just and equitable to do so: see section 68(6) of the 1976 Act. In paragraph 3 of its decision the Employment Tribunal gave the reasons for so doing; the Employment Tribunal said this:

"3. Miss Jones, however, argued that it would be just and equitable for the matter to proceed. Mr Hogan declined the opportunity to argue the just and equitable point, being unprepared to do so, but we have decided that it would be just and equitable for the matter to proceed for the following reasons:-

(a) The allegations set out in the applicant's witness statement are substantially the same as those which were investigated by the respondent in 2001 (see paragraph 15 of the document at page 315 of the bundle).

(b) It is clear that the allegations were investigated and action proposed.

(c) In our view the cogency of the evidence will be unaffected by any delay caused by the late service of the claim.

(d) The respondent only informed the applicant that his complaints would not lead to disciplinary action by a letter of 16 July 2002 (see document 347)."

5. The whole case was then adjourned on the Respondent's application because there were now two matters to be considered by the Tribunal. The first was the allegation that the decision to dismiss Mr Hammouda was an act of racial discrimination and the second was the allegations made of racial abuse set out above. The Employment Tribunal did adjourn the case to a later date and then dealt with an application by Mr Hammouda's Counsel for costs. The Employment Tribunal dealt with that in the following way in its decision:

"6 COSTS

Miss Jones made an application for costs on the basis that today's adjournment was caused by the conduct of the respondent in not dealing with the plain allegations set out in the Originating Application. Mr Hogan conceded on the basis of our findings above that such an application was not unreasonable and, indeed, we had given that preliminary view subject to submission. Mr Hogan, however, made cross-application in respect of costs wasted by the abandonment of the breach of contract claim, the Section 2 victimisation claim and also Miss Jones' concession that she would not be proceeding with arguments under Article 10 of the Human Rights Act 1998. We can see no evidence of any of these three matters being addressed in the respondent's witness statements. If any attention had been paid to the issue of victimisation then, in our view, further and better particulars would have been sought. In our view no significant costs can have been incurred by the respondent in the context of the three matters abandoned today.

7. Fundamentally, the reason for today's adjournment is the lack of preparation by the respondent in respect of the allegation of racial abuse. We, therefore, conclude that the applicant is entitled to the costs of today."

The Grounds of Appeal

6. The Prison Service appeal on three separate matters. We will deal with each in turn. The first ground of appeal is that the Employment Tribunal erred in law and/or was perverse in construing the Originating Application as including issues of detriment and thus complaints of racist remarks when the Applicant had only specified as a detriment the investigation, disciplinary and appeal procedures and limited the case accordingly.
7. We have no difficulty at all in finding that there is no error of law here. Paragraph 5 of the Originating Application makes it crystal clear that Mr Hammouda was claiming that he 'was subjected to racial comments and abused by staff of the Respondent throughout his employment with them. (our emphasis) Mr Hammouda was employed from 1 June 2001 and was at work until his suspension on 21 September 2001. The true fact of the matter is that the legal representatives of the Prison Service failed to see this clear pleading. Having seen it they should have then asked for further and better particulars of it. In our view there is no merit in this ground of appeal.
8. The second ground of appeal is that the Employment Tribunal erred in law in exercising its discretion to permit the allegations of racial abuse contained in paragraph 5 of the Originating Application to go forward. In other words it should not have exercised its discretion to disapply the time bar under section 68(6) of the Race Relations Act 1976. Mr Hogan appeared for the Prison Service before us and the way he put this part of the appeal is succinctly contained in paragraphs 9-11 of his skeleton argument where he says this:

"9. The Tribunal acted in a way that was procedurally improper by failing to accede to either the suggestion of counsel for the Appellant or Counsel for the Respondent as to the way that the time bar should be decided, by going on to determine the jurisdictional point in a summary fashion.

10. The Appellant was accordingly denied:-

(i) An adjournment to consider and plead a detailed case in relation to the time bar.

(ii) To marshall evidence.

(iii) To make considered submission s on the issue of prejudice.

(iv) To consider relevant authorities.

11. Moreover the Tribunal heard no evidence whatsoever on the point as to how it should exercise its discretion. On the part of the Respondent, the Tribunal was shown 2 documents, in an unproved bundle and asked to conclude by the Respondent that it was appropriate to disapply the time bar."

9. In support of his submissions Mr Hogan relied upon Rule 11(1) and (2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001. They say this:

"(1) The Tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and, shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings.

(2) Subject to paragraph (1), at the hearing of the originating application a party shall be entitled to give evidence, to call witnesses, to question any witnesses and to address the tribunal."

10. Miss Jones sought to persuade us that in fact the Tribunal was acting under Rule 6 but we do not think this is correct. The parties had come to the Employment Tribunal on 17 October 2002 for a 2 day hearing on the merits of Mr Hammouda's Originating Application. In our view this was the hearing of the Originating Application: Rule 10.
11. In our view there was no error of law by the Employment Tribunal in this case. We understand that there are various options as to the appropriate way of dealing with the 'just and equitable' issue before the Tribunal. In our experience the Employment Tribunals deal with these matters in different ways. Some take the point as a preliminary issue while some prefer to deal with it having heard all of the evidence including the evidence about the alleged act of discrimination.
12. This Employment Tribunal decided on the morning of the first day of the two day hearing of the Originating Application that certain issues were not viable (and therefore withdrawn) and that there was a distinct cause of action set out in paragraph 5 of the Originating Application. Only if it held that part of the claim was in time ie that it was just and equitable to extend time would an adjournment have been necessary. The parties were present and ready to deal with the other part of Mr Hammouda's claim ie that he had been the subject of racial discrimination by his dismissal.
13. It made little sense to adjourn that issue to a later date when if it was decided against Mr Hammouda the hearing could continue on the only remaining allegation of race discrimination. It is not in dispute that the parties were afforded a number of adjournments to take instructions in the course of the morning of 17 October 2002: Respondent's skeleton argument, paragraph 20. This was not disputed by Mr Hogan. Rule 11(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 is clearly subject to Rule 11(1). That is precisely what the words at the beginning of Rule 11(2) say.
14. In our view there is no absolute right of a party to give evidence or call witnesses or to address the Tribunal on the issue of whether that is just and equitable to extend time providing the Employment Tribunal approaches the matter in a fair and reasonable way. Mr Hogan was given the opportunity to address the Employment Tribunal about the just and equitable point but according to paragraph 3 of the Employment Tribunal's decision he declined to do so.
15. In our view there was no error of law in the Employment Tribunal refusing to adjourn the 'just and equitable' issue to a later date. It was a decision which they were fully entitled to come to in the exercise of their discretion. Neither do we find any error of law in the fact that they decided the issue without hearing Mr Hammouda. They were able to do so from the material to which they were referred by Miss Jones. There is no suggestion that the Employment Tribunal were asked by Mr Hogan to call Mr Hammouda so that he could cross-examine him. In our view Rule 11(2) subject as it is to Rule 11(1) does not require an Employment Tribunal as a matter of law to call the Applicant when deciding the 'just and equitable' point for or against him or her.
16. The third ground of appeal is that the Employment Tribunal erred in law and/or was perverse in dismissing the Appellant's cross application for costs which was based on the abandonment of three claims in respect of breach of contract, victimisation and Article 10 of the European Convention of Human Rights. Mr Hogan argued that the Employment Tribunal conflated two issues. The first was whether costs should be awarded at all in principle and the second was the quantum of costs. He submitted that the language of the last part of paragraph 6 of the decision set out above made it clear that this was what had happened. The power to award costs is contained in Rule 14 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001. So far as material it provides as follows:

"(1) Where, in the opinion of the tribunal, a party has in bringing the proceedings, or a party or a party's representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by a party has been misconceived, the tribunal shall consider making, and it is so decides, may make –

(a) an order containing an award against that party in respect of the costs incurred by another party;

(b) (not relevant)"

17. In our view the correct analysis of paragraphs 6 and 7 of the Employment Tribunal's decision is two-fold. First, it was faced with the fact that although the Applicant had come to the two day hearing of the Originating Application prepared to fight the case on two grounds only ie the allegations of racial abuse throughout the employment and the allegation that the dismissal was itself an act of racial discrimination the Respondent was not able or willing to fight the case on the first of those two grounds because it had misread the Originating Application having simply failed to notice that there was a separate allegation of racial abuse throughout the employment. It did not recognise the significance of the pleading in paragraph 5 of the Originating Application. In those circumstances the hearing could not go ahead once the Employment Tribunal had decided that it was 'just and equitable' to extend time to allow those allegations of racial abuse to be tried. No time had been lost by the abandonment of the other three claims. Having looked at the papers in the case including the Respondent's witness statements it came to the view no significant costs had been incurred by the Respondent in respect of the three matters abandoned on the morning of the first day of the hearing.
18. In our view there is no doubt that paragraphs 6 and 7 of the decision make it quite clear that the abandonment of the three claims for breach of contract, victimisation and breach of Article 10 of the European Convention of Human Rights did not mean that the Applicant had acted vexatiously, abusively, disruptively or otherwise unreasonably or that the conduct of the proceedings had been misconceived: See Rule 14(1). Taking each of those alleged courses of action in turn we find that the term 'breach of contract' appears only in Box 1 of the Originating Application; the word 'victimisation' appears only in paragraph 26(1) of the Originating Application which is in effect the prayer for relief; and the claim for breach of Article 10 of the European Convention of Human Rights is an alternative claim: see paragraph 23 of the Originating Application. It is a tangential point to the core of the Originating Application which was quite clearly allegations of racial abuse by colleagues throughout the Applicant's employment and an act of racial discrimination in dismissing him from the Prison Service.

Conclusion

19. For these reasons the appeal is dismissed.