Quarcoopome v Sock Shop Holdings Ltd [1995] UKEAT 300_95_0704

EAT
Quarcoopome v Sock Shop Holdings Ltd
[1995] UKEAT 300_95_0704 · 1995-04-07
MR JUSTICE BUCKLEY: There is presently proceeding an application before an Industrial Tribunal at London South by the Appellant in which he claims racial discrimination. In January of this year the hearing was due to come on. We think we are right in saying Counsel were present and the Appellant's Counsel indicated that he wished to, to put it neutrally, add to his claim. In essence, what he wanted to present was a claim for what is known as "indirect" discrimination, that is a claim under paragraph 1(1)(b) of the Race Relations Act 1976.That was objected to by the Respondents who asserted that what in truth was happening was that a new claim was being presented and, what is more, presented out of time. The argument was that the so-called new claim was not covered by the originating application, was therefore out of time and should not be allowed. The Appellant's argument presumably was that it was not a new claim, they were either giving particulars of the claim already started or, at the very most, amending it. At all events, the Tribunal did not allow the Application to amend or add to the claim.The Tribunal's conclusions are expressed fairly shortly in three paragraphs and, therefore, we can read them. Under the heading of "Conclusion":
"5. The Tribunal considered that it was for the Applicant to make a complaint of indirect discrimination at an early stage in these proceedings.
6. The purpose of pleadings is to give both parties a reasonable opportunity to prepare the cases they have to meet. This cannot be done if pleadings are deliberately left incomplete. We have considered the submissions of both of the parties and we bear in mind that the Applicant's have been advised by professional representative throughout this case.7. In these circumstances, we consider that it is not just and equitable to consider the complaints of indirect discrimination and therefore these applications must fail."It is to be noted that at the end of paragraph 7 the reference by the Tribunal is to the test of just and equitable. That comes from s.68(6) of the 1976 Act, which is dealing with applications out of time. Paragraph 68 generally deals with time-limits and identifies the time within which complaints are to be brought and subparagraph (6) says this:
"A court of 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."
It is common ground before us that the Tribunal regarded the application by the Appellant as an application to bring a claim out of time or, at any event, if they did not do that they still applied the test appropriate to such a claim.The first question, therefore, is whether this was a new claim, which was out of time. In other words, was the claim for indirect discrimination covered by the originating application? That application in Box 1, has these words printed on it:

"Say what type of complaint(s) you want the tribunal to decide."

What the Applicant or someone on his behalf had written in there was:

"Unfair Dismissal

Race Discrimination

- Unlawful Deduction of Wages contrary to Wages Act 1986"

The particulars given ran to 18 paragraphs. They were all very short and it is accepted that the only reference to race discrimination was made in paragraphs 16 and 17. It is presumably because the Appellants' advisers were conscious that those, as a matter of language, were not apt cover or, at very least, fully cover and expound a claim for indirect discrimination, that they wanted to amend. We do not think it necessary to recite paragraphs 16 and 17 but, as a matter of language, that would certainly be our view. They are clearly paragraphs dealing with race discrimination, they refer to the Race Relations Act, but it is very difficult to understand from them the nature of the claim which it is now wished to make based on indirect discrimination.Be that as it may, we return to the first question, whether the originating application containing, as it does, in Box 1, the reference to race discrimination, sufficiently starts or brings a claim within the time-limit. We are content to look at this question on the basis that the particulars do not take the matter any further forward than race discrimination, that is, they do not specifically identify an indirect claim.We have been referred to several cases in which the various Courts and this Tribunal have looked at the question of time-limits and what is and is not essential to a claim. One to which it is necessary to refer is Dodd v British Telecommunications Plc [1988] ICR 116 . That was a case in which the originating application had in it:

"Sex Discrimination Act or Race Relations Act"

but there were no further particulars and the question arose as to whether one or other of those was within time, whether that was a sufficient identification of the claim.The Court held that it was and we have to say at once that applying the approach or the reasoning of that case we would find it very difficult to see how without a different approach or applying a different principle we could distinguish the present case.What Mr Pitt-Payne, for the Respondents, has sought to argue is that a claim under s.1(1)(b), that is, the indirect discrimination, is wholly different from the direct, or what is known as direct discrimination, under 1(1)(a) and one only has to look at the other subparagraphs of the section, (i), (ii), (iii) and (iv), for example, and the terms of (b) itself, to see that and he prays that in aid in support of an argument that because that is a different type of claim, wholly separate from a direct claim, that an originating application that simply says "race discrimination" cannot cover it and that anybody, the man in the street or anyone else called upon to interpret the originating application would unhesitatingly say, "Oh, that is a claim for direct discrimination".We are wholly unable to accept that argument. An originating application that makes a claim, as this one did, for race discrimination, in our view incorporates any claim for race discrimination, whether it be under 1(1)(a) or (b) or s.2, discrimination by way of victimization, or any other claim that may be made on the grounds of race under that Act. The fact that there are different sections and different ways that people can discriminate cannot, in our view, detract from that and none of the cases to which we have been referred turn us away from that view. Indeed, they support us in it.We, therefore, conclude that the application to amend or to particularize, whichever it was, was not time-barred and the test that the Tribunal should have applied at the very highest and this is on the basis that it was an application to amend rather than just to particularize, was to see whether any hardship or prejudice would be incurred by the Respondents sufficient to justify rejecting the application and, in answering that question, of course, the Tribunal would have to have in mind that if they reject the application they are, in effect, shutting out a claim which the Applicant wishes to make. That is a very strong action to take and one which we would imagine Tribunals would be very slow to adopt. Without wishing to prejudge the issues here because we feel that the decision on that has to be made by the Tribunal we, for our part, have to say that we would find it difficult to make such a decision or identify sufficient grounds here upon which it could be made but, in saying that, we are not, of course, seeking to exercise the Tribunal's discretion for them. It must be a matter for them.There was another point taken by Mr Pitt-Payne and, quite understandably, because the conclusions, which we have read, do refer to the fact that the Appellant was throughout advised by professional representatives and that seems also to have influenced the Tribunal in their decision. This does not affect our judgment in any way but we find it very hard to see how, whether a party is represented or had advice or not, can be relevant to the essential validity of a document such as an originating application. The Rules set out what an originating application must contain. The Courts, in various cases, have interpreted those and indicated which are the essential ingredients to the validity of the application, as opposed to ingredients such as the giving of particulars, which are merely directory. On the question of the essential validity, that is, whether the document contains the matters which it has to contain to be an effective document, it seems to us that who has drafted the document can have no relevance. That must be a pure question of law. Of course, once a Tribunal is called upon to exercise its discretion in any matter, certainly, for example, to allow amendments or particulars to be given which may or may not strictly be within the wording of an application, those sort of applications, it may be very material to consider whether an Applicant is represented and if he or she is not, most Tribunals would think it appropriate to adopt perhaps a more flexible attitude to ensure that justice is done. Be that as it may, we have no doubt here that this originating application was valid. It follows from that that the Tribunal has in truth applied the wrong test because they have applied a test appropriate to an application to bring a claim out of time as opposed to an amendment or particularization of a claim and the matter must go back to the Tribunal to apply the correct test. Whilst accepting that it must be for the Tribunal to exercise their own judgment on that, we would only comment that in the main and we are not talking, of course, about frivolous or extravagant allegations but, in the main, where allegations of discrimination are made, it is usually better to grasp the nettle and hear them.