HIS HONOUR JUDGE SEROTA QC
Introduction
1.
This is an appeal by the Claimant against the decision of the Employment
Tribunal at Liverpool (Employment Judge Hewitt with lay members).
The Judgment is dated 20 April 2010 and the Reasons are dated
3 August 2010.
2.
The Employment Tribunal held that it had no jurisdiction to consider the
Claimant’s claim of race discrimination in the absence of a grievance having
been raised. It awarded the Claimant the sum of £419.25, by reason of unlawful
deduction from his wages. The Employment Tribunal did not adjudicate upon a
claim that his dismissal itself was discriminatory on racial grounds. The
Employment Tribunal took the view that this allegation had not been pleaded, so
the Employment Tribunal had no jurisdiction to entertain it.
3.
The appeal was referred to a preliminary hearing by HHJ Peter Clark
on 27 October 2010 and to a full hearing by Underhill J on
2 February 2011. Underhill J permitted the Claimant to file an
amended Notice of Appeal.
Factual background
4.
The Claimant is a Muslim of Pakistani origin. He says that he suffers
from dyslexia, diabetes, speech disability, learning and communication
difficulties.
5.
He was employed by the Respondent company which carries on business as
hauliers, as a driver. The Claimant joined another haulier, Excel Logistics,
in 1999 and his employment transferred to the Respondent by reason of a TUPE
transfer of 12 October 2006.
6.
The Claimant worked at Lea Green Distribution Centre, near St Helens.
7.
The Claimant had a poor disciplinary record, having a warning and
subsequently a final written warning (which was upheld on appeal) in relation
to an incident that took place on 13 May 2008, when it is said he
failed to comply with instructions not to use an unsafe means of coupling.
8.
On 9 February 2009 he damaged his trailer but did not report
the damage as having been caused by an accident, as he was required to do.
Instead, he asserted that the trailer was defective. When the trailer was
examined, the damage was found to be more serious than the Claimant had
reported. This led to an investigation and a subsequent disciplinary hearing,
which led to the Claimant’s dismissal. At no time did he raise a grievance in
relation to any acts of discrimination suffered by him.
9.
The Claimant exercised his right of appeal against his dismissal. For
the purpose of his appeal, a document entitled “Grounds of Appeal” was drafted
by a friend and former trade union officer, John Healey. In these grounds
of appeal the following appears:
“3) The circumstances in which the Allegation resulting in the
Final Written Warning and those in which the Allegation which led to the
Dismissal were made, give rise to the suspicion that Junior Managers were
deliberately trying to get Mr Amin into trouble. Mr Amin has
indicated that he has felt victimised by the tenacity of the Disciplinary
Actions against him and other matters and he believes this to be Racially
motivated.”
Shortly thereafter, Mr Healey assisted the Claimant to
produce expanded grounds of appeal. This contains the following:
“3) The circumstances in which the Allegation resulting in the
Final Written Warning and those in which the Allegation which led to the
Dismissal were made, give rise to the suspicion that Junior Managers were
deliberately trying to get Mr Amin into trouble. Mr Amin is Asian
and of a staff of around 300 drivers he has been for a very long time the only
Asian driver. In his 9 years of service there have been many recruitment
initiatives which have seen the driving staff double in that 9 years. No other
Asian drivers have been recruited in that 9 years. Following his Dismissal
there are now no Asian drivers on the staff at Lea Green Wincanton for
Somerfield/Co-Op.
With the exception of only two or three Black drivers and three
Women drivers the staff drivers at Lea Green are all White Males. There would
seem to be a cultural imbalance in the recruitment policy at Lea Green and
Mr Amin has indicated that he has felt victimised by the tenacity of the
Disciplinary Actions against him and other matters and he believes this to be
Racially motivated.”
The appeal was dismissed.
Procedural chronology
10.
The Claimant presented his originating application (ET1) on
22 May 2009. This document was prepared by the Claimant in
manuscript. He completed the fifth section “Unfair Dismissal or Constructive
Dismissal” by explaining why he thought the dismissal was unfair:
“The incident for wich (sic) I was dismissed and th (sic)
previas (sic) one wich (sic) I got a final writen (sic) warnin (sic) for were
both set up by management to get me in truble (sic).”
Part of the form that deals with discrimination is part 6 and at
6.2 an applicant is asked to describe the incidents which he believes amount to
discrimination, the dates of those incidents and the people involved.
“Indidents (sic) happened betewen (sic) early 2007 and up to my
dismisal (sic).
Several transport manigers (sic)/clerics are involved.
I have ben (sic) presherd (sic) in to doing jobs that did not
alow (sic) me to take regiler (sic) brakes (sic) wich I need for my diabetes.
I have tricked by manigers (sic) in to doing things wich (sic)
they then used to acuse (sic) me of misconduct and disoplind (sic) me and
dismissed (sic) me.
Managers have refused me request that thy (sic) have alowed
(sic) other driver.
I have been refused holliday (sic) and over time.
I have sick pay taken away.
Racist remarks and jokes have been made.”
11.
We note that the matters complained of are said to be relevant to
complaints of both race and disability discrimination. We also note that
although there is a reference to the Claimant being tricked by managers,
disciplined and dismissed under the rubric “discrimination”, there is nothing
to suggest on what basis the complaints of which the Claimant made were
racially motivated.
12.
The Respondent lodged its response on 26 June 2009 and made
clear (see paragraph 6.1 at page 46) that it regarded the Claimant’s claims as
not adequately particularised. It therefore requested that the Employment
Tribunal list the case for:
“[A] Case Management Discussion at which the Tribunal may set
down guidelines for the future conduct of the case including, as a preliminary
direction, that the Claimant provide further and better particulars regarding
his claims of unfair dismissal, race discrimination and disability discrimination
[...]”
13.
At paragraph 18 (page 48) one finds:
“18. Section 6.2 of the Claimant’s ET1 Claim Form does not fully
particularise his claims for race nor disability discrimination. The
Respondent will therefore request further particulars and will request leave to
amend its Response on receipt of the same.”
14.
The Respondent then set out the complaints in the ET1, which we have set
out above, and at paragraph 20 states:
“20. The Claimant’s ET1 Claim Form does not set out the
allegedly race and/or disability discriminatory nature of the purported
treatment which is extracted above [...]”
The 24 June 2009 Case Management Discussion took place
before Employment Judge Robinson. The Claimant was represented by his
solicitor, Mr Ashcroft. Mr Ashcroft informed the Employment Tribunal
that he had just been instructed and needed some time to formulate the claim of
the Claimant properly. The order to which we now turn had been agreed between
Mr Ashcroft, acting for the Claimant, and the Respondent’s legal advisors.
The order was as follows:
“2. The claimant is ordered to provide to the Tribunal and to
the respondents by no later than 4.00pm on 22 October 2009 by way of
additional information or amendment to the Originating Application fully itemised
and particularised claim form giving details of each and every allegation, act
or admission alleged to amount to race and or disability discrimination and
also full details of why the claimant feels that he has been unfairly dismissed
and full details of the unlawful deduction of wages claim and holiday pay
claim.
3. The information must include the following:-
3.1 When such acts or omission is alleged to have occurred.
3.2 By whom any such act or omission is alleged to have been
committed; and
3.3 Who, if anybody is alleged to have witnessed such act or
omission.
3.4 The nature of his alleged relevant disability.”
15.
The Further and Better Particulars are dated 22 October 2009
and it has to be said they are somewhat ineptly drafted by the Claimant’s
solicitor. Particulars of the claim for unfair dismissal make no reference to
it having been an act of discrimination. The Particulars of the claim for
discrimination equally make no reference to the dismissal itself, as being a
matter relied upon as an act of discrimination.
16.
The Respondent, on 13 November 2009, served amended grounds of
resistance, and under the rubric “race discrimination”, the Respondent pleaded:
“28. On 29 September 2009, the Claimant was ordered by
the Tribunal to provide further and better particulars which fully itemised and
particularised details of each and every allegation, act or admission alleged
to amount to race discrimination, and also full details of why he feels that he
was unfairly dismissed (the “Order”). The Respondent therefore assumes that
the Claimant’s race discrimination claim does not extend beyond the alleged
incidents referred to by the Further and Better Particulars under the heading “2.
The Claim for Discrimination.” If the Claimant should seek to contend that
there were other incidents of alleged discrimination, then in the light of the
Order, the Respondent will contend that the Claimant should not be permitted
rely on any such further allegations.”
17.
The Employment Tribunal had before it a letter dated
24 November 2009 from Mr Healey, to the Claimant.
Mr Healey was giving advice to the Claimant who apparently felt that he
was concerned he might not be able to get his points or meaning across to his
solicitor. He was writing the letter for the assistance of the solicitor.
18.
The letter contained the following:
“1) You do believe you were unfairly dismissed in the
straightforward sense of the meaning. This is because you believe that the
actions of managers at work amounted to “setting you up” for disciplinary
warnings and ultimately dismissal.
2) you believe also that the reason you were set up in this
way is racially motivated this is detailed at 6.2 of your Tribunal complaint.
Essentially under the heading Discrimination you say you were tricked by
managers, then accused of misconduct then disciplined and then dismissed - all
for a racially motivated reason.
3) your ET complaint does detail this and therefore your claim
for dismissal for a racially motivated reason was submitted in writing within
the time limit. It would also note that you had me present this in your appeal
against dismissal.
5) the matters which you listed in your application to
Tribunal as racist incidents and which I understand you have given further
particulars of (which I have not seen.) Apart from those you raised verbally
in your grievance one month before dismissal you did not raise these matters
during your time in work. They have been included as incidents which you would
like to bring out as evidence in a Tribunal Hearing as to the strength of your case
that the dismissal was racially motivated.
To put it another way – these matters are not themselves
intended to be separate and individual claims against the employer rather they
are evidence of the way you were treated in the months prior to your dismissal.
In my view the fact that you did not raise them as a grievance or within any
particular time frame does not stop them being recounted as evidence in a
Tribunal.”
19.
A further Case Management Discussion took place on
3 February 2010, presided over by Employment Judge Shotter.
Again, the Claimant was represented by Mr Ashcroft for the CMD which took
place by telephone. The Claimant withdrew his claim for disability
discrimination, which was dismissed by the Tribunal, directions were given for disclosure
and in relation to the discrimination claim. The point was taken by the
Respondent that the Claimant had not issued a grievance in respect of matters
set out in his discrimination claim; the Claimant believed he had lodged such a
grievance and there was some doubt as to whether or not the claim for unlawful
race discrimination would be proceeded with.
20.
Further, the Respondent was asserting that the discrimination claims
were time-barred. At paragraph 7, a minute of the Case Management Discussion
is in these terms:
“7. The parties discussed the issue in this case and it was
agreed that they were fully pleaded. The unfair dismissal claim will entail a
straightforward consideration of the principles as set out in British Home Stores v Burchell
1978 IRLR 379; 1980 ICR 303 and the issues in relation to the unlawful
deduction and accrued unpaid holidays were straightforward. However, one
further issue remained in respect of the respondent’s amended response
paragraph 40.1 to 40.6, in response to which Mr Ashcroft agreed to confirm
whether or not the claimant intended to rely upon those specific allegations,
such a confirmation to be sent to the respondent and lodged with the Tribunal
on or upon 3 March 2010.”
21.
The Claimant was directed to confirm with the Employment Tribunal and
the Respondent whether or not he intended to proceed with his race
discrimination claim. Evidence in chief of each witness would be called at the
liability hearing and should be given by the witness reading from a prepared
written statement. Directions were given as to service. On
15 February 2010, the Claimant wrote directly to the Employment
Tribunal and enclosed a copy of a letter from his solicitors of
11 February 2010 and the letter from Mr Healey, to which we have
previously referred, together with the expanded Notice of Appeal in the
internal disciplinary proceedings. It was apparently believed by the Claimant
that these documents could constitute the appropriate grievance and should be
served directly on the Employment Tribunal. There was correspondence between
the Claimant’s solicitors, John A Behn Twyford and Osborne Clarke for the
Respondent, relating to whether or not the Claimant was pursuing his claims for
discrimination. In a letter of 9 March 2010, John A Behn Twyford
wrote:
“Our client instructs us that it is his firm intention to
proceed with his claim for racial discrimination. He would like to make it
clear that he seeks compensation for the incidents referred to at paragraphs
2(a) to (e) of the Further and Better Particulars and also contends that his
dismissal was discriminatory.”
22.
On 12 March 2010, Osborne Clarke wrote to the Employment
Tribunal enclosing the letter of 9 March 2010 in which it had been
contended on behalf of the Claimant that his dismissal itself was
discriminatory.
“The Respondent’s position is that it is not part of the
Claimant’s case that his dismissal was discriminatory. He respectfully applied
for an order confirming this.”
Messrs Osborne Clarke points out that the Claimant had not in his
ET1 or Particulars stated whether he intended his claim to include the
allegation that the dismissal itself was discriminatory. The Respondent contended
that the allegation, the dismissal was discriminatory, was not part of the
Claimant’s pleaded case and requested that the Employment Tribunal confirm the
same:
“6. We would note that, as summarised above, the Respondent has
on more than one occasion sought to clarify the scope of the Claimant’s race
claim and on 13 November the Respondent stated its assumption that the
Claimant did not seek to contend the dismissal was discriminatory. In more
than 8 months since the Respondent first sought such confirmation, the Claimant
at no point stated an intention to plead that his dismissal was discriminatory,
until the letter dated 9 March. Indeed, the Claimant’s Further and Better
Particulars, and the discussion at the CMD on 3 February referred to at
4.7 above, had clearly indicated that this allegation did not form part of the
Claim.
7. We would also contend that the Claimant should not at the
eleventh hour be permitted to amend his claim to encompass the above
allegation. To do so would cause detriment to the Respondent, which is in the
process of preparing disclosure and witness statements. The disclosure
exercise and statements would have to be re-revisited to cover evidence on this
allegation.”
23.
Messrs John A Behn Twyford wrote to the Employment Tribunal on
22 March 2010. It is made clear that the Claimant intended to pursue
his claims for unfair dismissal, discrimination on the grounds of race. The
letter then continued:
“So far as discrimination in respect of the dismissal is concerned,
in describing incidents which amounted to discrimination in his claim form the
Claimant stated “Incidents happened between early 2007 and up to my
dismissal...I have tricked (sic) by managers into doing things which they then
used to accuse me of misconduct and disciplined me and dismised (sic) me.”
Furthermore in his notice of appeal against his dismissal it was stated
“Mr Amin has indicated that he has felt victimised by the tenacity of the
disciplinary actions against him and other matters and he believes this to be
racially motivated” and “conclusions reached by the dismissing officer –
Mr Cowley were arrived at by a prejudicial process.”
Although it is accepted that the Further and Better Particulars
did not make it clear that the Claimant was contending the dismissal was
discriminatory, this was confirmed by a letter to the Respondent’s
representative dated 9th March.
We expect that the Respondent will now have the clarification
which it requires and will realise that the Claimant contends that the
dismissal was discriminatory. The Claimant also contends that little
additional work will be required to deal with the allegation that the dismissal
was discriminatory, bearing in mind that instructions will no doubt already
have been taken on the several other allegations of race discrimination, and
that the parties ought to be ready to comply with the requirement to complete
disclosure of documents and exchange of statements by 29th March.”
24.
On 7 April 2010, Judge Reed directed the Secretary to the
Employment Tribunal to write to the parties to say the case would be listed for
three days, commencing 12 April 2010 and, if any issue of amendment
should arise, it could be addressed at the hearing. The letter asked whether
in the light of that observation, and the Claimant’s solicitor’s letter of
22 March, it required any further action from the Tribunal. We do not
believe there was any response to that letter. The Employment Tribunal in due
course held that the allegation that the dismissal was discriminatory on racial
grounds had not been pleaded and went on to dismiss all of the claims.
25.
As we have said the Notice of Appeal (dated 14 September 2010)
was referred by HHJ Peter Clark to a preliminary hearing on
26 October 2010.
26.
On 2 February 2011 the Employment Appeal Tribunal presided
over by Underhill J, on the basis that it was arguable that the Employment
Tribunal was wrong to hold that the question of discriminatory dismissal was
not pleaded referred the appeal to a full hearing. The Employment Appeal
Tribunal gave permission for an amended Notice of Appeal in which it is
asserted that the Claimant had indeed pleaded that his dismissal was on the
grounds of his race and that the Employment Tribunal was wrong to find that he
had not pleaded the issue.
27.
During the course of submissions before us, an issue arose as to whether
evidence had been adduced before the Employment Tribunal to support the
allegation that the Claimant had been dismissed on discriminatory grounds.
Accordingly we gave permission to the parties to send to us the Claimant’s
witness statement. The Claimant produced the statement but has objected to our
taking it into consideration.
The Decision of the Employment Tribunal
28.
The Claimant was represented again by his solicitor, Mr Ashcroft.
29.
Issues were taken by the Respondent at the outset, that the allegations
relating to discrimination were out of time, and that no grievance had been
raised in respect of them. Further, that although in correspondence (we
presume a reference to the letter of 22 March 2010) the Claimant
asserted that his dismissal was discriminatory, this had not previously been
raised. The Claimant sought to argue that the Notice of Appeal itself
constituted a grievance.
30.
The Employment Tribunal concluded that the specific acts of
discrimination (other than dismissal) had been presented out of time, and that
it was not just and equitable to extend time. It also concluded that no
grievance had been lodged as required by s.32 of the Employment Act 2008:
and in relation to the claim of race discrimination by way of dismissal it said
“Insofar as the allegation that the dismissal itself was a
discriminatory act, that had not been pleaded, either in the original claim
form or in the Further and Better Particulars.”
Accordingly the Employment Tribunal determined before it heard
any evidence that it did not have jurisdiction to determine the claims for race
discrimination.
31.
The Employment Tribunal went on to consider the question of unfair
dismissal by reference to the relevant facts and directed itself correctly as
to the law, and referred to s.98 of the Employment Rights Act 1996, and
the well-known cases of British Home Stores v Burchell
[1978] IRLR 379 and Iceland Frozen Foods v Jones
[1982] IRLR 439. The Employment Tribunal, having considered the facts and made
its findings, concluded that the dismissal was:
“[U]ndoubtedly within the band of responses available to a
reasonable employer [...] In arriving at this conclusion, the Tribunal is
entirely satisfied that the respondent complied with all three legs of the “Burchell
test” [...]”
Notice of Appeal and submissions
32.
The Claimant was represented before us by his friend, the former trade union
officer, Mr Healey who had helped him during the Employment Tribunal
proceedings. Mr Healey has considerable skill and experience in
representing parties before Employment Tribunals and in the appropriate
procedure.
33.
His case in essence was that the ET1 contained a clear reference to the
dismissal having been racially motivated. Accordingly the Employment Tribunal
was bound to deal with this issue. While the subsequent Further and Better
Particulars and correspondence may have failed to adequately clarify the matter,
the claim was pleaded, and as he had submitted should have been dealt with.
34.
The Employment Tribunal was wrong to say that it had not been pleaded
having regard to the clear words in part 6 of the ET1 “discrimination” where
the dismissal is referred to as an incident of discrimination.
35.
Mr Healey also drew our attention to the various references and
correspondence and the internal appeal documents to which we have mentioned as
showing that the Claimant always maintained his dismissal was itself discriminatory.
36.
Mr Healey submitted the Claimant was a lay person and dyslexic, and
had completed the ET1 himself, so both the Employment Tribunal and the
Employment Appeal Tribunal should be sympathetic to his lack of clarity. The
Claimant used his own language in the ET1 and paragraphs 5.1 and 6.2 should be
read together as saying that he had been dismissed by reason of his race.
37.
Mr Healey submitted that the letter of 15 February constituted
compliance with the Employment Tribunal’s order of 3 February. He also
asserted that before the Employment Tribunal, the Claimant’s managers were said
to be racist and he gave evidence in his internal appeal that his dismissal was
on racial grounds; he could not say if such evidence had been led at the
Employment Tribunal.
38.
He also submitted that the finding by the Employment Tribunal that the
Claimant had not pleaded that his dismissal was discriminatory was perverse.
The Respondent’s submissions
39.
Ms Loraine, for the Respondent, submitted that the dismissal was
neither pleaded as being discriminatory in either the ET1 or in the Further and
Better Particulars. She submitted that at the Employment Tribunal Case
Management Discussion on 24 September, it was conceded by the Claimant’s
solicitor that this was not clearly pleaded in the ET1 (something we are unable
to resolve) and that the Further and Better Particulars would set out the
Claimant’s case in full. The proper course, she submitted, was for the Claimant
to have applied to amend although the Respondent would have objected to the
amendment. The Employment Tribunal was, therefore, correct when it decided it
had no jurisdiction to entertain the Claimant’s complaint that his dismissal
was itself discriminatory.
40.
Ms Loraine stressed the importance of the absence of the pleading
as being a jurisdictional issue. She relied upon the decision of the Court of
Appeal in Ahuja v Inghams [2002] EWCA Civ 1292 to
support her case that if an issue was not pleaded, even if it were the subject
of evidence and submission, the Employment Tribunal had no jurisdiction to
entertain the claim. It was submitted there was no evidence before the
Employment Tribunal to support the allegation that dismissal was, itself, an
act of discrimination; even at the date of the hearing the Respondent did not
know what the Claimant’s case was. It was apparent that the case was not set
out in the Further and Better Particulars, which required each allegation of
discrimination to be fully itemised and particularised. There were no findings
in relation to allegations of discrimination by the Employment Tribunal, and it
was submitted that the Respondent’s witnesses were not cross-examined as to the
allegedly discriminatory nature of the dismissal.
41.
The fact that no case was put as to the discriminatory nature of the
dismissal in evidence showed clearly that the issue was not before the
Employment Tribunal.
42.
The grounds of appeal did not meet the high standard required of a
perversity appeal.
The law
43.
In Chapman v Simon [1994] IRLR 124 paragraph 42
Gibson LJ stressed the importance of pleading all allegations that were to
be relied upon:
“Under s.54 of the 1976 Act, the complainant is entitled to
complain to the tribunal that a person has committed an unlawful act of
discrimination, but it is the act of which complaint is made and no other that
the tribunal must consider and rule upon. If it finds that the complaint is
well founded, the remedies which it can give the complainant under s.56 (1) of
the 1976 Act are specifically directed to the act to which the complaint
relates. If the act of which complaint is made is found to be not proven, it
is not for the tribunal to find another act of racial discrimination of which
complaint has not been made to give a remedy in respect of that other act.”
The point was taken further in Ahuja v Inghams
[2002] EWCA Civ 1292. This was an unusual case in which evidence was adduced
by the claimant of three allegations of separate incidences of discrimination.
The evidence was the subject of cross-examination and submissions, as
Sedley LJ observed at paragraph 49:
“Here, as it happened, one allegation was pleaded but not
formally proved and two were proved but not pleaded. A lay person may be
forgiven for not differentiating between the two things but the law says
otherwise”
44.
We also refer to the Judgment of Mummery LJ at paragraph 35:
“Chapman v Simon is Court of Appeal authority
for the proposition that the jurisdiction of the Employment Tribunal is limited
to complaints made to it. Under Section 54 of the 1976 Act the complainant is
entitled to complain to the tribunal that a person has committed an act of
unlawful discrimination. But it is the act of which complaint is made and no
other that the tribunal must consider and rule on. If the act of which
complaint is made is found to be not proven, it is not for the tribunal to find
another act of racial discrimination of which complaint has not been made and
to give a remedy in respect of that act. The tribunal should confine itself to
the acts of racial discrimination specified in the originating application,
unless it allows the originating application to be amended.”
Discussions and conclusions
45.
In the light of the assertion by the Claimant, that the issue of the
dismissal being discriminatory was raised in evidence at cross examination
before the Employment Tribunal, we asked if we might see the Claimant’s witness
statement, and this was supplied to us by both parties. Although the witness
statement refers to the internal appeal, and refers to the complaint of racial
abuse and discrimination being raised at the internal appeal hearing, there is
no other mention of the dismissal itself, being discriminatory. The Claimant
declined to make submissions in relation to his witness statement, on the basis
that we should not rely upon a document the Respondent had not chosen to rely
upon, and there was no cross-appeal. We had asked to see the statement in
order to assist the Claimant, but in the light of his stance we have chosen not
to take account of it. In any event we find it difficult to see how the issue
was raised in cross examination when the Employment
Tribunal had decided the question of jurisdiction against the Claimant before it heard any evidence.
46.
It is apparent that the ET1 is not the clearest and that little (or
indeed no) evidence was advanced in the documents we have seen to show that
the dismissal was racially motivated beyond the assertions contained in the
ET1, the letter from Mr Healey and the internal appeal document. It is clear
from correspondence that we have cited that the Claimant always intended to
raise the issue of the dismissal being discriminatory and it is apparent from
the internal appeal documentation, to which we have referred, that he had
previously made this assertion (again) without anything by way of evidential
support. We refer to the correspondence of 9 March 2010 (page 50), a
letter of 22 March 2010 (page 58), the Notice of Appeal and expanded
Notice of Appeal relied upon in the internal appeal proceedings, together with
the letter from Mr Healey at page 158. Reference to the dismissal having
been discriminatory was, however, conspicuously omitted from the Further and
Better Particulars which were served in purported compliance with the order
that he provide further and better particulars which 'fully itemised and
particularised details of each and every allegation, act or admission alleged
to amount to race discrimination, and also full details of why he feels that he
was unfairly dismissed.'.
47.
It is most unfortunate that the Claimant's
solicitor failed to address the question at the Case Management Discussion of
3 February 2010, nor did he seek to amend the further and better
particulars, and provide the necessary particulars although in the letter of
22 March 2010 it was accepted that the Further and Better Particulars
did not make it clear that the Claimant was contending the dismissal was
discriminatory.
48.
It is equally unfortunate that the Employment
Tribunal did not itself suggest that the issue could be determined by
the Claimant amending the Further and
Better Particulars. It is clearly undesirable that important issues in Employment Tribunal proceedings should be
determined by pleading points. It should have been clear to the Employment Tribunal that the Claimant had intended at all times to assert
that the dismissal was discriminatory, and it is hard to see what prejudice the
Respondent would suffer by reason of any amendment.
49.
We are unable to accept that the letter on 15 February was intended
to provide compliance with the order of 3 February; it did not purport to
do so; it gave none of the required particulars and simply repeated the
assertion in the ET1 that the dismissal was discriminatory.
50.
We do not consider that the withdrawal of the other discrimination
claims was of any relevance. It was noted by the Employment Tribunal that
those claims relied upon proof of a grievance having been lodged, whereas in
cases of racially motivated unfair dismissal there was no obligation to lodge
such a grievance.
51.
The function of Particulars is to limit and define issues to be tried,
and to inform the other side of the case it has to meet, and avoid surprises.
Particulars will limit the generality of a pleading. It was clear that the
Claimant wished to pursue his assertion that his dismissal was discriminatory,
as revealed by the correspondence and documents to which we have referred.
However, despite being put on notice as to the inadequacy of his pleadings and
Particulars, at no time did the Claimant's
solicitor seek to make an amendment.
52.
Failure to plead the matter in the ET1 should not be thought of as
simply a technicality; it goes to jurisdiction as the cases we have cited
earlier, Chapman v Simon and Ahuja v Inghams,
make clear. It is striking that in Ahuja v Inghams, the
Employment Tribunal had heard evidence and submissions (apparently without
objection) in relation to two unpleaded allegations but the failure to plead those
allegations as part of her case was fatal to the jurisdiction of the Employment
Tribunal to entertain those complaints. In the present case, in compliance
with the order requiring the Claimant to supply, by way of additional
information or amendment, the Originating Application, it is most unfortunate,
so far as the Claimant is concerned, that although he was legally represented,
the Particulars failed to set out any reference to the dismissal being an act
of discrimination.
53.
It is clear to us, as it was to Underhill J, that although, contrary to
the view of the Employment Tribunal, the ET1 did contain a plea that the
dismissal was an act of discrimination and accordingly the Employment Tribunal
was wrong to find otherwise. As we have already described at paragraphs 6 and
at 6:2 of the ET1 when required to describe the incidents which he believed to
amount to discrimination the Claimant
pleaded that he had been tricked by managers into doing things which they then
used to accuse him of misconduct and 'disciplined me and dismissed me'..
[our italics].
54.
No argument was raised that this allegation should have been treated as
abandoned by reason of its absence from the Further and Better Particulars, nor
did the Respondent seek an order at the hearing that the claim that the
dismissal was discriminatory should be struck out for failure to comply with
the order to provide Further and Better Particulars.
55.
We have asked ourselves whether the inadequate Further and Better
Particulars deprive the Employment Tribunal of jurisdiction to entertain the
complaint.
56.
Although the point is a short one we have not found it easy to decide.
We are not in any way influenced in coming to our conclusion by the Claimant’s
disability. The Respondent's case is not so much that the Claimant did not plead the case of discriminatory
dismissal but that it was not properly particularised in accordance with the
order of 24 June 2009.
57.
This case can therefore be distinguished from Chapman v Simon
and Ahuja v Inghams in which the pleading itself did not
raise the disputed issues. That was a matter going to jurisdiction. In the
present case the issue was pleaded but not properly particularised. Failure to
provide proper Further and Better Particulars does not go to jurisdiction. The
Respondent's remedy was to seek to strike out the pleading on the basis that
there had been a failure to provide the particulars required by the order of
24 June 2009 rather than challenge the jurisdiction of the Employment Tribunal.
58.
In those circumstances we consider that the Employment Tribunal fell into error in holding that the claim in
respect of the alleged discriminatory dismissal was not pleaded. Accordingly it
had jurisdiction to entertain the claim. Therefore, the appeal must be allowed.
59.
In light of the nature of the Employment
Tribunal's error we consider that the claim relating to the alleged
discriminatory dismissal only should go to a hearing before a fresh Tribunal.
We do not doubt that the original Employment
Tribunal would conscientiously try to approach the case with a fresh
mind, were we to remit the case to the same Tribunal.
However, the Claimant might
reasonably consider that the original Tribunal might not bring a fresh mind
to bear, but would be affected by its findings that led it to dismiss the
other heads of discrimination ; see Sinclair Roche & Temperley v
Heard [2004] IRLR 767.
60.
Finally we would like to thank both Ms Loraine and Mr Healey for their
assistance.
