Wills v London Guildhall University [1995] UKEAT 666_95_2107

EAT
Wills v London Guildhall University
[1995] UKEAT 666_95_2107 · 1995-07-21
MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal against the decision of the Industrial Tribunal held at London (North) on 15th June 1995.The Industrial Tribunal unanimously decided to refuse leave to the applicant, Mr Wills, to amend his originating application for unfair dismissal by London Guildhall University the respondents, by adding a complaint of sex discrimination out of time. Extended reasons for that decision were sent to the parties on 20th June 1995. On 23rd June Mr Wills served a Notice of Appeal. The matter was set down as a preliminary hearing to determine whether the appeal raises an arguable point of law. If it does, the case will proceed to a full hearing at which London Guildhall University can be represented. If it does not, there is no point in the case proceeding, because this Tribunal only has jurisdiction to deal with appeals raising points of law on Industrial Tribunal decisions.Mr Wills conducted his case in person on the appeal, as he did before the Industrial Tribunal.The background to the application for leave to amend, which was unsuccessful, is this: Mr Wills was employed by London Guildhall University, then known as the City of London Polytechnic, as a senior lecturer. He had been employed since 1974. He was dismissed with effect from 31st August 1992. On 19th November 1992, he presented an application for unfair dismissal, and he set out in 36 numbered paragraphs the detailed grounds of his complaint. There is no mention anywhere in those 36 paragraphs of a claim for sex discrimination, nor is there any allegation of any fact which would be perceived by a person reading the document objectively as likely to give rise to such a claim.The claim for unfair dismissal was resisted by the University. The Notice of Appearance, which was served on 23rd December 1992, admitted Mr Wills' employment as a senior lecturer in accountancy and business finance, admitted the dismissal and asserted that he had been dismissed for gross misconduct. Details are then given. It is not necessary to repeat the facts relied upon to support the assertion that the dismissal was fair.Those proceedings, although started long ago, have not yet been heard. We understand that the reason for that is that there have been High Court proceedings in progress between Mr Wills and the University. Those proceedings, we are informed, have been defamation, conspiracy and other matters.Not much seems to have happened in these proceedings since the end of December 1992 when the Notice of Appearance was served. On 2nd February 1995 Mr Wills applied for leave to amend his originating application to include a complaint of sex discrimination in contravention of the Sex Discrimination Act 1975 . The amendment to add that claim is contained in a document which starts at paragraph 37 and continues through paragraph 44 and 45. Some of the paragraphs give details of the claim for unfair dismissal, no issue arises on those on this appeal, because the Tribunal gave leave to amend the originating application excluding only paragraph 42. Paragraph 42 is headed "Sexual Discrimination". That sets out just over two pages allegations of discrimination taking the form of what is described as "male gender prejudice".The application to amend to add that claim was opposed by the University on the ground that Mr Wills was seeking to introduce an entirely new cause of action long after the expiration of the three months time limit for presenting a complaint. The matter was brought before the Tribunal as a preliminary issue.The Tribunal set out the background to the complaint. The background was that disciplinary proceedings against him, which led to his dismissal, arose from complaints received concerning relations with female students. He was suspended from duty. An initial disciplinary hearing was undertaken by Professor Lewis on 30th October 1991. There was a further hearing on 28th February 1992 following an investigation, and the receipt of a further complaint. After the conclusion of a meeting with the Provost on 16th March 1992 Mr Wills was given notice of dismissal with effect from 31st August 1992. He unsuccessfully appealed to the staff disciplinary appeal committee of the governors on 4th June 1992. He started the proceedings, already mentioned, making no reference to any complaint that he was the subject of sexually discriminatory treatment.He embarked upon a number of unsuccessful actions in the High Court. The Tribunal noted that those had resulted in him being made bankrupt and declared vexatious.They referred to the application for leave to amend almost three years after his notice of dismissal, and set out the substance of his amendment. They referred, correctly, to the provisions of Section 76 of 1975 Act which provide in subsection (1):
"(1) An industrial tribunal shall not consider a complaint under section 63 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done."
Section 63 is the section which confers jurisdiction on Industrial Tribunals to hear claims of discrimination in contravention of the 1975 Act. It is also relevant to refer to subsection (5) of Section 76 which provides:
"(5) 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 Tribunal pointed out that the acts complained of culminated in Mr Wills receiving notice of dismissal on 16th March 1992, and the eventual dismissal of his appeal on 4th June 1992. His application for leave to make a complaint of sex discrimination was received more than two years out of time. He admitted that there was no obstacle to him presenting a complaint of sex discrimination at any time after his dismissal, apart from the fact that he was heavily involved in High Court litigation. He said that his knowledge of the law was not great. He was unaware of the three months time limit. He had only recently become aware of the unlimited compensatory award that can be made on complaints of sex discrimination, and of cases that Tribunals might sustain a complaint of male gender prejudice. He informed us that he had only become aware of such cases coming before the Tribunals during the course the last year. He referred by name to a number of cases of that kind.The Tribunal made these comments on the application.
"6. The tribunal's assessment : If it was Mr Wills' belief that the respondents had discriminated against him on the grounds of his sex in the conduct of the disciplinary proceedings. it was clearly reasonably practicable for him to have included it as part of his complaint of unfair dismissal on 19 November 1992. He was represented at every stage of the disciplinary proceedings by an experienced trade union representative ... The fact that Mr Wills was ignorant of his rights does not assist him because there has been no material change in the law which now enables him to bring a complaint of sex discrimination which he could not have brought at the time of his dismissal."
They pointed to the width of the discretion in Section 76(5) as to what is just and equitable. But they declined to extend the time. They observed that, in their view, it did not appear that Mr Wills had a strong complaint. They pointed out that there was no evidence or any document that a woman found to have committed similar conduct would have been treated any differently than the University treated Mr Wills.There was no obstacle to him pursuing his claim for unfair dismissal. On the other hand, they thought that the University would be prejudiced if they were to permit Mr Wills to add a complaint of sex discrimination at this late stage. They observed that they would be placed at "unlimited financial risk following the judgment of the European Court of Justice in Marshall v Southampton & South West Hampshire Area Health Authority (No. 2) [1993] IRLR 445 ." They added that the "scope and length of the proceedings" would be "materially extended". They also observed that:
"As a person who has already been adjudged to be vexatious litigant ... Mr Wills might be expected to chase every hare with the utmost determination and if he pursues these proceedings frivolously or vexatiously the respondents will be unable to enforce any order for costs against him because he is a undischarged bankrupt."
Having made all those observations the Tribunal refused the application for leave.What is wrong in law with that decision?Mr Wills made a number of points conveniently summarised in his grounds of his appeal and in his skeleton argument. The specific complaints, amplified in the oral argument, were that the Tribunal erred in law in failing to give full and proper consideration to the substantive issue that his claim for sex discrimination included facts which overlapped with or were very much the same as those to be determined in the unfair dismissal claim. He argued that the Industrial Tribunal failed to consider that his sex discrimination claim was not a completely fresh claim "coming out of blue". It was largely another way of putting a claim on facts which, in any event, had to be determined.On that part of the case, Mr Wills referred to the decision of this Tribunal in Berry v Ravensbourne National Health Service Trust [1993] ICR 871 . He said that this case was not referred to in the decision of the Industrial Tribunal. It should have been. If it had been, they would have come to a different decision. He accepted the general observation made by Judge Hague in his judgment that a question of whether an amendment should be made to a pleading is difficult to appeal from. It is a question of discretion. Judge Hague observed at page 873 C:
" The industrial tribunal in this case, having found the application for an amendment was outside the three-month period, decided that it would not be just and equitable to extend the time and therefore refused to allow the amendment. As we have said, usually it would be impossible for us to interfere with that exercise of their discretion. However, in this case there are additional factors."
The judgment discussed the additional factors. Mr Wills relies upon on the summary of the position given at the end of the judgment on page 875 B, where, in winding up the decision, the Tribunal said:
"... we think that this is a case where we can look at the matter again, because the tribunal has failed to take into account facts which they should have done. That being so, we think we can interfere, if we think fit, with the exercise of the discretion of the tribunal. Of course, the mere fact that the time the application for an amendment was made within three months of the applicant becoming aware of the discrimination is not sufficient. We have to look at the matter in the round. There was a certain delay after she had become aware of the advertisement. But, on the other hand, by this time it is clear from Mr Parker's involvement and Councillor Coker's involvement that she was considering and thinking about a racial discrimination claim. More importantly [ This is the passage on which Mr Wills placed great emphasis ], we think, the facts on which the applicant relies as regards her racial discrimination claim overlap with and are very much the same as those which are to be determined in her unfair dismissal claim. We were told indeed that that claim is due to be heard next month. So it is not as if it is a completely fresh claim coming out of the blue. It is very largely another way of putting a claim on the facts which are, in any event, having to be determined."
For those reasons the appeal in that case was allowed, and the Employment Appeal Tribunal granted leave for the amendment.In our view, that is a correct statement of legal principle. There may be exceptions of the kind mentioned there to the general principle that it is impossible or very difficult to appeal against the exercise of a discretion in relation to the extension of time. Mr Wills's arguments, however, fail on the application of that principle to this case. The matters which he alleges in paragraph 42 under the heading "Sexual Discrimination" are a fresh set of facts when compared to those set out in the first 36 paragraphs of the IT1. Mr Wills sought to overcome this problem by saying:
" Well, one should take into account not only the original pleaded facts but also the further facts which are pleaded in relation to the unfair dismissal claim as result of the leave which was being granted for an amendment in relation to that claim."
We reject that. The position has to be looked at, as at the date when the claim was first made. A comparison then has to be made between the facts pleaded in support of the claim at that stage, and the facts which are relied upon to support the new cause of action in the proposed amendment. This is a completely fresh claim. There is no reason why it could not have been made earlier. We agree with the Tribunal that the fact that Mr Wills may not have been fully aware of the right to bring such a claim and the fact that he might not have been aware of the time limits is really beside the point. It would also be beside the point if the case was that he failed to receive correct legal advice on this point from his union representative. The position is that it is now too late in the day to make this kind of amendment, in the absence of a very full and satisfactory explanation as to why it was not made earlier. No such explanation has been given.The further points made by Mr Wills are of less importance. He said that the Industrial Tribunal erred in law in concluding that, as he had been represented by his trade union representative, it would have been made clear to him what the legal position was, and that a faulty showing on the part of NATFHE could not be relied upon by him in relation to this amendment. We do not regard that as a particularly important point. The position is that, whether he had a representative or not, he has not produced a good explanation for the long time that has passed before seeking to make this amendment.He criticised the decision on a number of points on which we have some sympathy, but we do not think that the criticisms are sufficiently significant to make this decision erroneous. He said that the Tribunal erred in law in concluding that his case was not a strong one. In expressing that view, the Tribunal erred by attempting to judge the case on the merits without hearing it, and knowing that he had indicated that there was no great need to go through a great bundle of documents at this preliminary stage. In our view, it probably was premature for the Tribunal to indicate how strong or how weak his case was. There is a danger in hazarding such assessments on a case, in advance of hearing evidence and argument. We agree with Mr Wills that it was not relevant to the exercise of the discretion on the amendment to take into account the fact that the University would be placed at "unlimited financial risk", as a result of the removal of the ceiling for compensation in sex discrimination cases. That is simply a consequence that follows if a claim is established. It does not seem to be a material consideration in deciding whether an amendment should be made. We would also place little weight on the fact that Mr Wills has been made bankrupt or that he has been declared a vexatious litigant in relation to other proceedings in other courts.We have to weigh those criticisms, which we think are legitimate, with the other reasons given by the Tribunal, and view the matter overall. In our judgment, the Tribunal were right to refuse to grant the amendment. Their decision is legally correct for the reason that this is a totally new claim raised long after the initiation of the proceedings, and without any satisfactory explanation for leaving it so long to make the amendment. The Tribunal exercised their discretion. It has not produced a perverse result. There is no error of legal principle in the way they have exercised it. In our view, this appeal must be dismissed.