Habte v London Borough Of Southwark [1998] UKEAT 1337_97_0502

EAT
Habte v London Borough Of Southwark
[1998] UKEAT 1337_97_0502 · 1998-02-05

JUDGE SMITH QC:

This is an application by Mr Habte for leave to proceed to a full hearing, of his appeal against the decision of an Industrial Tribunal held at London (South) in June and September 1997, when the Industrial Tribunal held that Mr Habte had resigned from his job with the London Borough of Southwark as an Accountant, and was therefore not dismissed, so that his complaint of unfair dismissal was dismissed. Extended Reasons were sent to the parties on 3 October 1997.Before we go any further, we are going to make it clear that we are going to allow this matter to proceed to a full hearing of the appeal on one point only. That is, the point relating to whether the Tribunal arguably may have erred in their finding that there was no breach of contract. That is the only point upon which we are allowing this matter to go forward by way of an appeal.We are going to say why, now, we are not going to allow the matter to go forward in relation to other grounds, before we come back to the ground upon which we are allowing the matter to go forward.One of the grounds which the Applicant wishes to go to a full appeal, which we are not allowing to go to a full appeal, is his submission that the Industrial Tribunal wrongfully exercised its discretion in refusing an adjournment on 17 June and in refusing to accept the Applicant's bundle (as it is called) on 17 September and refusing to allow the Respondent's witnesses to be recalled. It is also suggested, and we are referring to paragraph 6.2 of the Original Notice of Appeal, that the Tribunal did not give proper assistance and advice to the Applicant, who was a litigant in person.We very carefully considered all of that and we have noted carefully what the Applicant has said to us today in relation to that, and the points that he has made in the bundle of documents that he has put in front of us. In particular, we have taken carefully into account, everything he says under the heading "Particulars of Events on the dates of the hearing June 17 1997". It goes on for several pages, but at the end of the day, on that point, we consider that the reasons given by the Industrial Tribunal do not disclose any error, or possible error, in the way in which they exercised their discretion in relation to those matters.The Industrial Tribunal dealt with the matter in detail in paragraph 6. There was a confusion in the Extended Reasons because there are two paragraph 6's by mistake. In the first paragraph 6, which is the one we are dealing with here, the Industrial Tribunal set out at length its reasons for refusing the adjournment in the first place and for refusing the submission of a further bundle and for the recall of the Respondent's witnesses. They gave a total of about seven reasons as to why they were refusing those applications with regard to the application that was made on 17 September. They also, in paragraph 6, gave detailed reasons as to why they were refusing the adjournment of the hearing on 17 June.The Tribunal had written to the parties: they had given notice of the hearing on 21 May, saying that unless there were wholly exceptional circumstances, no application for postponement would be entertained and then there had been a further letter on 9 June to a Miss Fascholo of Southwark Legal Services, making it clear to the Respondent, and a copy to the Applicant's solicitors, that the case would have to go ahead on the date arranged. That was communicated to Mr Habte.In all the circumstances, we take the view that there is no reason for us to believe that the Industrial Tribunal exercised their discretion in any way other than totally properly with regard to that aspect of the matter.The Applicant has sought to persuade us today that his presentation of his case was prejudiced, in consequence of the way the orders were made by the Industrial Tribunal, but we cannot find any such grounds and accordingly, in regard to that matter, we do not allow this matter to proceed to a full hearing in relation to that matter.In our judgement it is clear that all the relevant documents were placed before the Tribunal relating to the crucial issue as to whether there was or was not a constructive dismissal. In our judgement it is plain that all the relevant documents were adduced and it is equally plain that all the relevant witnesses were heard in relation to that matter. For those reasons as well those given by the Industrial Tribunal, we do not allow the matter to proceed to a full hearing in relation to that head of appeal.The next matter is that the Industrial Tribunal found at paragraph 6(d) that the only issue before them was that of an alleged unfair constructive dismissal and in particular they found as a fact that the Applicant did not at any time purport to allege racial discrimination. They put it in this way:
"..... It should be noted that the Applicant did not at any time purport to allege racial discrimination - the only issue before the Tribunal was that of an alleged unfair constructive dismissal."
The Industrial Tribunal took into account some evidence that was given of harassment and they dealt with that in the same sub-paragraph. They made a finding at paragraph 4 of their decision that the evidence of the Applicant was in places confused, contradictory and uncorroborated and they preferred the evidence of the Respondent and witnesses. They obviously took into account paragraph 16 of Section 12 of the Originating Application. In our judgement, it is absolutely clear that that was the only issue that was argued before the Industrial Tribunal. When the original Notice of Appeal was put in by the Applicant to this Employment Appeal Tribunal, there is no reference in paragraph 6 whatsoever to any criticism of the Tribunal for failing to deal with the issues before them relating to a complaint of racial discrimination. There just is nothing in the Notice of Appeal that refers to that. That Notice of Appeal was received by the Employment Appeal Tribunal on 24 November 1997.Yesterday - that is to say the day before we are giving judgment - some time during the day, there was a very large bundle of documents put in before the Employment Appeal Tribunal: I should have thought well over a hundred pages, maybe a hundred and fifty pages altogether in a number of dividers. This was not at all in conformity with the correct procedural requirements for the hearing of an application for leave to proceed to a full appeal, but because the Applicant is in person, we have of course looked at that, we find that that purports to amend the Notice of Appeal at page 2, to include at (e) "failed to apply the law in deciding on whether my allegations of discrimination and harassment were founded" and then determining on whether it was based on race. Within this very lengthy document there are at pages 11-15 lengthy arguments purporting to put forward a case that there was a failure on the part of the Industrial Tribunal to make findings in relation to race discrimination.In our judgement this is quite impermissible. It is now far too late for the Applicant to seek to raise these matters. There is the clearest possible finding of fact by the Industrial Tribunal that no such matter was raised before them. There is nothing in the original Notice of Appeal to indicate that any point is being taken in that regard. It is noteworthy that in the original Originating Application under Section 1 on the first page, there is no reference to any complaint of racial discrimination whatsoever. In those circumstances we do not allow this matter to go forward on any allegation that the Industrial Tribunal erred in any way in relation to an ostensible complaint relating to race discrimination. There was no such complaint in front of the Industrial Tribunal and they made no findings in relation to it and accordingly there can be no appeal in relation to it.That leaves the position that we stated at the beginning of this judgment. We consider it is just arguable and no more than that, that there may be room for a criticism of the Industrial Tribunal's decision which they reached in paragraph 10, which they expressed in this way:
"10. ...... the Tribunal can find no evidence of a series of breaches by the Respondents leading to the 'final straw'.
12. The Tribunal can find no evidence of a breach of contract or conspiracy by the Respondents to force the Applicant's resignation."We have looked closely at the documents, particularly a letter of 27 August 1996 and other very important documents at about that time, leading up to the Applicant's resignation. We allow this matter to go forward on the narrow issue as to whether the events that took place in August and September, and up to October 1996, may arguably have given rise to a position whereby there was a breach of contract entitling Mr Habte to resign. On that issue alone, this matter may go forward on appeal. We will mark it in Category C. We would estimate that it would take two hours. There is no Order for the Chairperson's Notes of Evidence. There will have to be Skeleton Arguments on each side in accordance with the usual directions.We cannot too strongly advise Mr Habte - having listened to him this morning and with great respect to him, he is certainly in no way an advocate, and such matters as these raised difficult questions of law - we strongly advise him accordingly to seek legal advice in one way or another, so that he can be represented properly before the Employment Appeal Tribunal. A copy of this judgment should be provided to the Employment Appeal Tribunal which has to deal with the full appeal.