Karim v Hilton International Ltd [1997] UKEAT 106_97_2606

EAT
Karim v Hilton International Ltd
[1997] UKEAT 106_97_2606 · 1997-06-26
MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing is to decide whether there is an arguable point of law raised in an appeal against a tribunal Chairman's decision which was sent to the parties on 11th December 1996.Mr Purnell from the Tottenham Law Centre, on behalf of the appellant, Mr Karim, suggests that the Industrial Tribunal Chairman has erred in law in a respect which I will amplify in a moment.Mr Karim has presented a number of originating applications to an Industrial Tribunal against his employers, Hilton International Ltd. He made a complaint in an IT1 on 16th November 1994, and on 22nd February 1995, he wrote this to the Industrial Tribunal:
"Further to my IT1(E/W) form dated 16.11.1994 sent to you I like to add further complaint against above respondent which occurred on first week of December 1994 which I consider entirely discriminatory against me because of my race and colour and ethnic origine.
The complaint is as follows:

. .."

Then he sets out two specific types of complaint. One was related to his non-promotion; and the second related to an unlawful deduction from his salary.That letter was considered by the Industrial Tribunal in March 1995, and the response was as follows:
"Your letter of 22 February 1995 has been referred to a Chairman of the Tribunals who has refused your request to amend the Originating Application because:
"This is a wholly fresh complaint in regard to a period substantially after issue of the Originating Application. If amendment was allowed the Respondent would need leave to file yet a further Notice of Appearance. This would cause even more delay in the proceedings which is not in the interests of justice generally or fair to the Respondent."
The Industrial Tribunal heard the substance of the complaint in the IT1 on 2nd February 1996. On 10th February 1996, a new Originating Application was filed with the Industrial Tribunal, and in box 12 it is said:
"I am therefore now applying for the complaint sent in on 22/2/95 (see attached copy letter) to be treated as a valid application at that date."
The Industrial Tribunal considered the application submitted on 10th February 1996, and ruled that it had been presented outside the time limit, and therefore, should be dismissed as the tribunal was not prepared to exercise its discretion.The reasons for that decision are contained in writing and were sent to the parties on 11th December 1996. The Chairman referred to the facts to which I have referred, and then in paragraphs 2 and 3 said:
"2 Mr Purnell admitted that he was instructed on that case in September 1995 and stated that he had hoped to persuade the Tribunal on the 2 February 1996 to accept the amendment. When this was refused the current application was submitted.
3 It is clearly outside the three months time limit laid down in the Race Relations Act and no reason was given by the Applicant or his representative why this application was not presented within the three month time limit or within a short time after the Applicant was informed in March 1995 that his application to amend the current IT1 and add these allegations was refused."The essential point which is raised by Mr Purnell on this appeal, is that the Industrial Tribunal have erred in law in not treating the letter of 22nd February 1995 as an Originating Application in itself. He submits to us that there is no requirement for any particular form to be used for filing an Originating Application. He says that, in those circumstances, since it contained a wholly fresh complaint, it should have been treated by the Industrial Tribunal as such an application.It seems to us that that submission is unsustainable on the facts of this case. It is correct, as we understand the position, that no specific form needs to be used for an Originating Application. In one sense, therefore, the submission was well-founded. But, it seems to us, on the facts, that the letter of 22nd February 1995 was not intended to be an Originating Application at all, it was intended to be that which the tribunal considered to be, a request for an amendment to the Originating Application. Hence the words "like to add further complaint" and hence the tribunal's decision refusing "Your request to amend the Originating Application".It seems to us, therefore, that in this case there never was a document which could or should have been treated as an Originating Application. It would have been perfectly open to Mr Karim to have asked the tribunal to treat his letter of 22nd February 1995 as an Originating Application when he received the decision refusing leave to amend; and he could have asked them to extend time if by that date his complaint was then out of time on the grounds that he was asking for it to be considered as an amendment in the first place, and then only when it was refused, to have it considered as an Originating Application in the second place.It seems to us that Mrs Prevezer's decision as Chairman of the Industrial Tribunal, cannot be faulted. She has considered it on the basis on which the facts are, and we do not regard the submission which has been made to us, albeit attractively by Mr Purnell, as revealing any arguable point of law. On the contrary, we think the decision of the tribunal was manifestly correct.The appeal will be dismissed.