Panesar v Unisys Ltd [1994] UKEAT 558_94_0507

EAT

Panesar v Unisys Ltd

[1994] UKEAT 558_94_0507 · 1994-07-05

MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Industrial Tribunal held at London (South) on the 24th March 1994. For reasons notified to the parties on the 6th May the Tribunal unanimously decided that an application made by Mr Panesar, the Applicant, for leave to amend his Originating Application to add a complaint of Racial Discrimination should be refused. The reason given for the refusal was that the Tribunal would have no jurisdiction to hear such a complaint having regard to the time limit contained in s.68 of the Race Relations Act 1976 . Section 68(1) provides:

"An industrial tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done."

and under subsection (6) it is provided:

"A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

The arguments on this appeal turn on the application and effect of those provisions.

In order to understand the points made on the appeal on each side it is necessary to refer to the background facts which have given rise to the dispute. From the 1st August 1969 until the end of December 1992 Mr Panesar was employed by the Respondents, Unisys Limited. At the date when he ceased to be employed he was a Senior Customer Engineer. He was aggrieved by the manner of his leaving and presented a complaint to the Industrial Tribunal on the 26th March 1993.

He used the IT1 form commonly used for Originating Applications to the industrial tribunal. Box 1 provides for identification of the type of complaint which the applicant wishes to make. That was not filled in - but the nature of Mr Panesar's complaint was made clear in Box 10 in which applicants are asked to give full details of their complaint. The complaint made by Mr Panesar was clear. It was as follows:

"The employers ordered me to accept demotion in a very humiliating manne

r, so that my will to continue in their employment was severely undermined and conditions for a constructive dismissal became effective. Also, I was directly advised to resign or accept redundancy which - in the context of the unequal relationship with my employers - left no alternative for me but to accept redundancy on the terms dictated by my employers."

That was clearly a complaint of unfair constructive dismissal.

Unisys Limited put in a Notice of Appearance dated the 19th April 1993. They resisted the application for reasons stated in the notice. They denied that they had ordered Mr Panesar to accept demotion and set out their version of what had happened. They denied that they had advised Mr Panesar to resign or accept redundancy and they concluded by stating that Mr Panesar had signed a Company severance payment receipt stating that the severance payment, which was in total £20,231.04 gross, was in full and final settlement of any claims against Unisys arising out of, or in connection with, the termination of his employment.

The complaint came on for hearing before the Industrial Tribunal in that form on the 24th March 1994. It was then, for the first time, that an application was made on behalf of Mr Panesar to the Tribunal for leave to amend the proceedings to include a claim of racial discrimination.

At the hearing Mr Panesar was represented by Mr Chakravarty. Mr Chakravarty is a lay representative, not a lawyer. He holds an important position as Honorary Chair of the Managing Committee of the Greenwich Council for Racial Equality. He conducted the case before the Industrial Tribunal on behalf of Mr Panesar and he has conducted this appeal on his behalf. He has done so by making clear and concise submissions.

The Industrial Tribunal set out in the decision the facts relevant to the application to amend and then gave reasons why they refused an amendment. They mentioned at the beginning of the decision that Mr Panesar was unwell and had gone to see his doctor in the late afternoon the day before. They noted that Mr Panesar had already asked for an adjournment of the hearing of the 24th March. Mr Chakravarty asked for it again, not only because Mr Panesar was ill, but also because one of his witnesses was ill, though they did not see a medical certificate from the witness. The Tribunal did not grant an adjournment. They went on to consider the application for amendment. They referred to the IT1 and noted Mr Chakravarty's submission that Mr Panesar wished to present a race discrimination claim. Mr Chakravarty said that Mr Panesar believed he had been racially discriminated against all along. He admitted that Mr Panesar had been to see the Greenwich Commission for Racial Equality in September 1993 and he admitted that Mr Panesar said to him when he first met him in October 1993 that it was a question of race discrimination. The Tribunal did not find that this was consistent with the application to the Tribunal nor was it dealt with in any way in the Respondent's reply.

The Tribunal considered the provisions of the 1976 Act and noted the relevant dates, the important one being the last date of Mr Panesar's employment, the 31st December 1992. Between the 31st December and the 1st September he had no legal advice. He was representing himself. But that some five months had past since he had consulted the Greenwich Commission for Racial Equality without any application being made to the Tribunal either orally or in writing to amend the proceedings by adding an allegation of racial discrimination.

The Tribunal stated that ignorance of the law or procedure was no complete defence, but they reminded themselves, correctly, that the Tribunal has a discretion to allow a complaint to be considered if it is just and equitable to do so, even if that complaint is out of time. The Tribunal considered whether it should exercise the discretion and said this in paragraph 13:

"The circumstances which we must consider in deciding whether it would be just and equitable to allow a late claim are those urged on us by Mr Chakravarthy. He says there was an on-going correspondence with the Respondent and it was thought that the matter was settled prior to a hearing and that it was not thought necessary, either because there would be a settlement or because the facts would come out in any event, to present a specific claim of racial discriminatIon to a tribunal."

In those circumstances the Tribunal stated their conclusion in paragraph 14 as follows:

"We do not feel it just and equitable to allow a late claim at this stage because we find that the Applicant must have known, and indeed his representative says that he did know of the possibility of such a claim, especially having regard to the high profile given to racial discrimination and to the amount of advice he has received, we consider that in all the circumstances he did not activate his rights when he quite well could have done and in those circumstances, the claim fails and is dismissed."

The Tribunal adjourned the remainder of the matters until the 22nd June for hearing of the facts of the case.

Mr Panesar was dissatisfied with that decision and he appealed by Notice of Appeal dated 16th June 1994. That is a detailed document typed out and signed by Mr Panesar. It refers to the decision and identifies what are claimed to be points of law relating to the decision of the Tribunal.

The appeal was originally fixed to be heard on the 28th June. That hearing had to be adjourned because this Tribunal was not satisfied that Mr Panesar had been notified in time of the date of the hearing. It appears from the records of the Employment Appeal Tribunal that a Notice of Hearing was sent dated the 24th June, but checks were made on the 28th June, when Mr Panesar had not arrived for the hearing. It was discovered that there was no record in the Post Office of recorded delivery of the relevant papers. A telephone check with Mr Panesar revealed that he had not, in fact, received the papers. In those circumstances the Tribunal had no alternative but to adjourn the hearing, since it would not be right to proceed with a hearing of a case where the Appellant had not been properly notified of the hearing date. Today was fixed as the fresh date. Mr Panesar was notified. He has attended today with Mr Chakravarty. Before we go to the main arguments on the appeal we should deal with an application for an adjournment which Mr Chakravarty made during the course of opening the appeal. Mr Chakravarty complained that he had only received yesterday papers relating to the case, including the Respondents' answer dated the 27th June and the Respondents' skeleton argument, prepared by Mr Neaman, Counsel for Unisys, and dated the 28th June. Mr Chakravarty emphasised that he was not a trained and qualified lawyer and that he really had not had long enough to consider the points raised in the documents. It was then that the Tribunal invited him to consider whether he wished to ask for an adjournment to prepare his arguments. At the time when he applied for the adjournment Mr Chakravarty had in fact already handed in to the Tribunal a typed summary of his account of the background and arguments relevant to the appeal. In support of his application for an adjournment Mr Chakravarty said that it was not fair that the hearing of the appeal should have been brought on so quickly. His client had only really been given three working days in which to prepare a skeleton argument, whereas the Notice sent out by this Tribunal, fixing dates of hearing, refers to skeleton arguments being submitted not less than fourteen days before the hearing. He also stated that negotiations had been going on for some time in an attempt to settle this matter. If the matter was adjourned to another day Mr Chakravarty would be able to get advice from a lawyer about the appeal and would also have the opportunity of bringing negotiations to a final settlement.

Mr Neaman, on behalf of Unisys, opposed the adjournment. He pointed out that Mr Panesar had chosen to be represented by Mr Chakravarty at the Industrial Tribunal and on this appeal. He knew that he was not a qualified lawyer and he could not now use the argument that a qualified lawyer was needed to give advice as an excuse for an adjournment. He pointed out, (and this is confirmed by events which occurred at this Tribunal), that Mr Panesar wished to bring his appeal on quickly. The reason why he wished to bring the appeal on quickly is that, after he put in his Notice of Appeal, received here on the 17th June, Mr Panesar was faced with the adjourned hearing of the Industrial Tribunal on the 22nd June. It was not possible to bring the appeal on before then. Because the appeal had not been brought on before then, the Industrial Tribunal had, despite initial refusals, granted an adjournment of the hearing fixed for the 22nd June. So far as we know no new date has yet been fixed for the hearing of the case on the merits. Mr Neaman finally submitted, most importantly, that it was possible to deal with the appeal justly today. Mr Chakravarty and Mr Panesar knew what their grounds of appeal were from the 16th June. They knew because the Notice of Appeal was sent in bearing that date. It could not be right that a party should get an adjournment of an appeal on the grounds that they had not had time to consider the other side's arguments. An appellant is under a duty to get his own arguments together when he is appealing on the ground that there have been errors of law in the decision.

As to the negotiation point, Mr Neaman said that negotiations had been going on for a year. They had still not reached agreement. He made it clear that his clients' position was that they would not continue with the negotiations with a view to a settlement until there had been a decision on this appeal one way or the other. Nothing would be achieved in negotiations until this appeal was disposed of.

After we heard the arguments we informed the parties that we did not think it right to grant the adjournment. We accept the arguments advanced by Mr Neaman as valid grounds for refusing that application. We were also satisfied that it was possible for Mr Chakravarty to do justice to the points raised by his client in his Notice of Appeal and in Mr Chakravarty's own skeleton argument.

The essence of Mr Chakravarty's argument was this. He said that the Originating Application was incomplete because it did not state Mr Panesar's full case. It only revealed part of his case and did not explicitly state that the dismissal of which he complained was in fact prompted by considerations of colour, race and ethnic origin. He is quite right on that point. There is no mention anywhere in the Originating Application of any consideration of colour, race or ethnic origin. He then sought to make a legal point, that the cause of action which his client has is only one course of action, that is unfair dismissal as complained of in the Originating Application. No amendment was sought to introduce a second cause of action. The amendment sought was to introduce a second element, that is the race discrimination element, into the existing cause of action of unfair dismissal. Mr Chakravarty supported his arguments by reference to a recent decision of the Court of Appeal reported in "The Times" for the 10th June 1994, Sion v. Hampstead Health Authority , a decision on Order 20, Rule 5 of the Rules of the Supreme Court relating to amendments. The Court of Appeal held:

"A statement of claim could be amended with the leave of the court . . . after the limitation period had expired, in order to add or substitute a new cause of action arising out of the same facts as those which were already pleaded but which disclosed no sustainable cause of action."

Mr Chakravarty submitted that, if on the authority of that case, a new cause of action could be included after the date of expiration why could not Mr Panesar be allowed to include an addItional ground or additional element to an existing cause of action, the unfair dismissal claim.

Mr Chakravarty added to those legal points what he called "Background". He set out facts referred to at all by the Industrial Tribunal in their findings of fact. What he stated in the background facts was, in essence, this: that Mr Panesar had informed the Tribunal that he wished to include an element of race discrimination at a later stage. He had attempted to do this after he had put in his Originating Application but, he says, he was informed, when he contacted the Industrial Tribunal, that the actual forms were forwarded to the Regional Office and that these facts on race discrimination would have to be brought out at the hearing. He stated:

"This guidance was given by a very sympathetic officer of the Industrial Tribunal on the `phone."

Mr Panesar, who had no experience as to how hearings were conducted, accepted that advice.

We are unable to place any reliance on those new facts, because they were not put before the Industrial Tribunal. They were facts, which, if true, were known to Mr Panesar throughout. Yet he had not mentioned them. What is sought is to introduce new evidence on an appeal which should have been used at the hearing before the Industrial Tribunal. On the principles of Ladd v. Marshall , which apply to the Employment Appeal Tribunal, as they apply to the Court of Appeal, new evidence cannot be admitted on an appeal if it was available for use at the original hearing or could have been available for use by the use of reasonable efforts. We therefore put entirely out of account those background facts. We are left with the arguments summarised above.

In our view, the insurmountable obstacle facing Mr Panesar is that this is an appeal against the exercise of a discretion. The discretion is contained in s.68(6). This Tribunal can only hear appeals on questions of law. That limitation is contained in s.136 of the Employment Protection (Consolidation) Act 1978 . It applies to race discrimination cases as it applies to unfair dismissal cases. An appeal against the exercise of a discretion can only succeed if it can be shown that there has been a misdirection as to the relevant statutory discretion or there has been a misdirection as to the relevant principles which guide the exercise of that discretion; or if the exercise of that discretion has resulted in a perverse decision, that is one which no reasonable tribunal exercising the discretion would have reached.

We agree with Mr Neaman's submissions that none of those matters have been demonstrated by Mr Chakravarty's arguments in this case. The exercise of the discretion was correct by reference to s.68(6), and to the circumstances put before the Tribunal. The decision was not perverse and there is no error of law in it. For those reasons we shall dismiss the appeal.

Before finally closing this judgment, however, we should mention several further matters drawn to our attention. The first is that Mr Panesar has complained, in a letter dated 4th July 1994, of irregularity by officers of the Employment Appeal Tribunal in relation to the notification of the hearing for the 28th June, last week. He wishes to complain that the letter notifying the hearing date was not posted on the date when it was franked. There had been a failure, therefore, on duty on the part of officials of this Tribunal. There is no basis for this complaint. We have already explained the circumstances in which the Employment Appeal Tribunal, on the 28th June, did adjourn the hearing because they were not satisfied that Mr Panesar had received notice of the hearing. We have caused enquiries to be made and there was no irregularity on the part of any official of this Tribunal in sending out the papers.

There is one other matter. Two statements have been produced, one by Mr Chakravarty and another by Mr Shailinder Panesar, criticising the conduct of Mrs Royce, the Chairman of the Tribunal, at the hearing on the 24th March. The complaint in both statements is the same. That is, that when the application for an adjournment of the hearing was made on the grounds of Mr Panesar's illness, the Chairman remarked that she was "cynical about the medical certificate" and commented that the General Practitioner's Certificate was suspect. There are other more detailed complaints about the demeanour of the Chairman when dealing with the application for an adjournment. We would make two comments on these complaints. First, we have sought the comments of Mrs Royce on these allegations. She points out the circumstances in which she was not fully satisfied with the certificates produced in relation to the application for an adjournment on the grounds of Mr Panesar's illness. It is not necessary to go into the details of that because as Mrs Royce points out (and it is evident from the record of the proceedings) that an adjournment was in any event granted. There was no question of any prejudice, legal wrong or injustice being suffered by Mr Panesar in relation to the manner in which the application for an adjournment on the grounds of illness had been dealt with.

The second matter is this. These criticisms, which have been produced by Mr Chakravarty and Mr Panesar's son, were only produced at the very last minute. That did not give the Tribunal all the time that it would have wished to obtain comments. We have been able to obtain the comments mentioned at short notice. If allegations of this kind are to be made about the conduct of a hearing, the complaints must be made promptly in order to enable the members of the Tribunal to give their side of the story. In our view, these criticisms are irrelevant to any complaint of an error of law on the part of the Tribunal. If Mr Chakravarty and Mr Panesar have complaints that they wish to pursue about the way in which the hearing was conducted, they are entitled to do so to the Regional Chairman or President of the Industrial Tribunals. The matter can be investigated. At the moment we see no solid grounds for criticism of the conduct of the Tribunal. For the reasons mentioned earlier, this appeal fails because there is no error of law in the exercise of the discretion. The appeal will therefore be dismissed.