Clarke v Luton & Dunstable Hospital NHS Trust [1995] UKEAT 847_94_1301

EAT
Clarke v Luton & Dunstable Hospital NHS Trust
[1995] UKEAT 847_94_1301 · 1995-01-13
MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an Appeal by Mrs Shirley Clarke against the Decision of the Industrial Tribunal held at Bedford on 13th April 1994.For reasons notified to the parties on the 22nd April, the Tribunal arrived at a unanimous decision on two points. First, they refused leave to amend Mrs Clarke's Originating Application, in which she complained of Unfair Dismissal, to add a claim of discrimination against her contrary to the Race Relations Act [1976]. Secondly, they found that on the 17th January 1994, Mrs Clarke had entered into a binding agreement with the Respondents, her former employers, Luton and Dunstable Hospital NHS Trust, by way of settlement and compromise of her Unfair Dismissal claim.The Tribunal held that she was therefore de-barred from proceeding with the claim and that it would be dismissed. As she was dissatisfied with the Decision, she appealed. Her Notice of Appeal was submitted by Supreme Public Law on her behalf. Mr Lee of Supreme Public Law represented Mrs Clarke on this appeal, just as he represented her before the Industrial Tribunal. The Notice of Appeal was submitted in May 1994.The purpose of the Preliminary Hearing is to decide whether this Appeal raises a point of law that is arguable. If it does not raise a point of law, we have no jurisdiction to hear the Appeal. In support of his submission that there are points of law on this Appeal, Mr Lee relies, in addition to the oral arguments presented today, on a written submission put before the Industrial Tribunal in support of an Application for review. That written submission is dated the 3rd May 1994.The Tribunal, on the 16th May 1994, refused a review on the grounds that it had no reasonable prospect of success and notified that Decision to the parties on the 25th May. We will deal with the two points in turn. The first point relates the refusal to grant leave to amend. The dates are revealing on this aspect of the case. Mrs Clarke presented her Application on the 5th August 1992. It appears that, at that time, she may not have been professionally advised. She completed the form, complaining Unfair Dismissal from her position as a nursing auxiliary. She gave the standard infomation relating to her hours of work and dates of employment. In Box 10, which contains details of the complaint, she set out her complaint of Unfair Dismissal without referring in any part of the details to any question of racial discrimination.The facts found by the Tribunal were that Mrs Clarke had come to this country from Jamaica in 1978 and had lived here continuously since then. She denied to the Tribunal that she was aware of the existence of laws about racial discrimination before she saw a television programme in 1993 which brought the laws to her attention.The Tribunal also found that, following the termination of her employment in August 1992 and until January 1993, she was represented by a regional officer of her union COHSE and that therafter until November 1993 she was represented by Mr Fraser of the Luton Law Centre.The first time that any notification was given to the Industrial Tribunal on an allegation of race discrimination was two days before the date of the Industrial Tribunal hearing on the 11th April 1994. In those circumstances, the Tribunal found, as it was bound to find under Section 68(1) of the Race Relations Act [1976], that the complaint was out of time. Under that section Industrial Tribunal shall not consider a complaint of racial discrimination, unless presented to the Tribunal before the end of the period of three months, beginning when the act complained of was first done.The Tribunal correctly considered whether it should exercise the discretion conferred on it by Section 68(6), which provides that a Tribunal may nevertheless consider any such complaint which is out of time, if, in all the circumstances of the case, it considers it is just and equitable to do so.The Tribunal specifically addressed this question in paragraph 5 of its Decision. It pointed out that the issue of racial discrimination was made twenty months after the applicant was dismissed and long after the expiration of the statutory period. The Tribunal said:
"There is nothing in the evidence we have heard which could enable us to find that it would be just and equitable to allow such a complaint to proceed so late in the day and, disregarding any procedural difficulties which might have arisen out of our finding that the applicant is in any event barred from proceeding with her unfair dismissal complaint itself, we find that the Tribunal is debarred from considering any discrimination complaint because it was not presented in due time."
The facts found by the Tribunal in paragraph 2, 3 and 4 of their Decision are sufficient to justify their conclusion that it was not just and equitable to hear the complaint out of time. We can find no error of law in that part of the Decision. The Tribunal referred to the correct statutory provisions. They found facts on which they could justifiably reach the conclusion that they did.The second point concerns the finding that the applicant could not proceed with the complaint of Unfair Dismissal because a binding agreement had been entered into on the 17th January 1994.The Tribunal investigated this matter at the hearing, because it was contended byMr Lee, on behalf of Mrs Clarke, that the agreement was not binding on her. The Tribunal heard evidence. They said, in paragraph 6 of the Decision that they considered the Respondents submission that Mrs Clarke was debarred from proceeding because she had entered into a binding agreement to compromise the settlement claim. They set out the essential facts, which were not in dispute and dealt with the involvement of Mr Clingan, an ACAS reconciliation officer, who was allocated to the case after Mrs Clarke's complaint was presented.Evidence was given, on behalf of the Respondents by Mr Clingan. The Tribunal said Mr Lee, representing the Applicant, consented to the admission of Mr Clingan's evidence about the content and substance of his conciliation efforts, and indeed has cross-examined him at some length on those matters.The Tribunal set out the evidence given by Mr Clingan and stated their conclusion in paragraph 8 as follows:
"It is clear on the facts that a settlement agreement was made on the 17th January 1994 in the manner set out above: it is equally clear that that agreement was made after Mr Clingan had taken conciliation action. "
The Tribunal had well in mind, as appears from paragraph 7 of their Decision, the provisions of section 140 (2)(g) and sections 133 relating to the restrictions on contracting out of the provisions of the Act.As the Tribunal came to the conclusion that a binding agreement had been reached, they were right to make an order that the claim of Unfair Dismissal should be dismissed. The point taken by Mr Lee on this matter is partly on the merits and partly on the procedure adopted. What he says on the merits is that Mrs Clarke had not time to consider the matter before the alleged agreement to accept £500. There had been no reference of the matter to her previous advisors. He made references to a possible conspiracy. He asserted that other people in a similar position to Mrs Clarke had been paid far more substantial amounts than Mrs Clarke was promised.He made a point on the procedural aspect. He said that, at the hearing before the Industrial Tribunal, the correct procedure had not been followed because Regulation 6 of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations [1993] provide that a Tribunal must not determine an issue relating to the entitlement of a party to bring proceedings, unless the Secretary has sent notice to each of the parties, giving them an opportunity to submit representations in writing and to advance oral argument before the Tribunal.In our view, that rule does not assist the Appeal in this case. That is referring to a preliminary questions arising as to the entitlement of a party to bring or contest proceedings. It provides that those shall not be determined unless a party has been given an opportunity to make written or oral representations.In this case, the Tribunal was not concerned with a preliminary issue on entitlement to bring proceedings. The Tribunal heard the claim for Unfair Dismissal and decided that it could not proceed because of the binding agreement which had been made. Mrs Clarke had notice of that hearing and Mr Lee attended to represent her. We are told by Mr Lee that he made an application for an adjournment which was not granted. It then appears that he fully participated in the conduct of the hearing by cross-examining Mr Clingan, and by making submissions on behalf of Mrs Clarke, both in relation to the application for leave to amend and in relation to the binding agreement relied on by the Respondents.We are satisfied on the arguments that there is no arguable point of law in this case. Mr Lee said that his client had been denied the right to have her complaint heard. What he wants is a Full Hearing for the facts of the case to be fully investigated including Mr Clingan's conduct. This misses the point. That has already happened. The hearing before the Industrial Tribunal went into evidence and law relating to the agreement relied by the Respondents. The Tribunal made findings of fact which are binding on this Tribunal. We are unable to see any error in the law that they applied to the facts found by them.For all those reasons the Appeal is dismissed.