D'Souza v London Borough Of Lambeth & Anor [1998] UKEAT 199_98_2207

EAT
D'Souza v London Borough Of Lambeth & Anor
[1998] UKEAT 199_98_2207 · 1998-07-10

JUDGE PETER CLARK :

We have before us ex parte preliminary hearings in three appeals brought by Mr D'Souza in his continuing litigation against his former employer, the London Borough of Lambeth ["Lambeth"]. They are as follows:(1) An appeal against a decision of the London (South) Industrial Tribunal in Case No. 2303224/97 ["the material complaint"], promulgated with extended reasons on 11th December 1997, dismissing his claims of sex discrimination and breach of the Equal Treatment Directive, on the grounds that the first was time-barred and that he had no claim under the Directive. That was a decision of a full Industrial Tribunal chaired by Mr G W Davis. We shall call it the substantive decision. This is the first appeal (EAT/199/98);(2) an appeal against a decision of the Chairman, Mr Davis promulgated with extended reasons on 2nd February 1998, refusing an application by Mr D'Souza dated 21st December 1997 for a review of the substantive decision. We shall call that the review decision. That is the second appeal (EAT/489/98);(3) Following a ruling which I gave earlier this morning in PA/733/98, for the reasons given in my judgment on that occasion, the third appeal (EAT/893/98) is an appeal by Mr D'Souza against a decision of the London (South) Regional Chairman, Mr Meeran, not to conduct a further review of the substantive decision, or a review of the review decision himself, or to refer the appellant's application for a further review dated 5th February 1998 to the President of Industrial Tribunals, His Honour Judge John Prophet, for determination.

Background

Mr D'Souza commenced employment with the Greater London Council in November 1984. Following its abolition he transferred to employment with Lambeth, holding a senior position in the computer services department from 3rd March 1986 until his dismissal on 16th January 1990.During his employment with Lambeth he brought four separate complaints of unlawful racial discrimination and/or victimisation against his employer. He is of Asian ethnic origin. Following his dismissal he presented a fifth complaint of unfair dismissal and racial discrimination. The progress of those complaints, and inaction on the part of Lambeth in dealing with them, is fully set out in the judgment given on behalf of the Employment Appeal Tribunal by Morison P. and reported at [1997] IRLR 677 . An order for reinstatement made after an Industrial Tribunal upheld the fifth complaint was not complied with on 25th March 1993. Ultimately he received an award of just over £350,000 as a result of the order of this Appeal Tribunal made on 9th October 1997. That award is currently the subject of an appeal to the Court of Appeal by Lambeth.

Sex Discrimination

Mr D'Souza's sex discrimination claim arises in this way. He wished to compare the treatment which he received at the hands of Lambeth with that afforded to a female employee, Ms Emma Lewis. Ms Lewis was first employed by Lambeth on 10th October 1978. She is black. She brought a complaint of racial discrimination under Case No. 32355/85 arising out of her non-selection for the post of District Rehousing Officer for the Kennington District in December 1985. That complaint was heard by an Industrial Tribunal sitting at London (South) under the chairmanship of Mrs T J Mason over seven days in September and November 1986. By a decision with full reasons promulgated on 19th December 1986 her complaint was dismissed.Before coming to the material complaint we should refer to the judgment of Judge Hull QC, delivered on behalf of a division of the Employment Appeal Tribunal in EAT/1042/96 on 2nd July 1997. That was an appeal by Mr D'Souza against a decision of an Industrial Tribunal sitting at London (South) under the chairmanship of Mrs Gleeson on 26th June 1996 and promulgated on 13th August 1996 dismissing his then complaint of sex discrimination on the grounds that it was time-barred.The EAT judgment records that in 1990 the appellant became aware of grounds for believing that he could bring a claim in respect of sex discrimination, but was advised not to proceed with such a claim by experienced solicitors then advising him, Messrs Lawford & Co.It was not until 23rd February 1996 that he served a sex discrimination questionnaire on Lambeth, followed by an Industrial Tribunal complaint which was dismissed by Mrs Gleeson's tribunal on 13th August 1996. His appeal against that decision was dismissed by Judge Hull's Appeal Tribunal on 2nd July 1997.It cannot be coincidental that the material complaint was presented to the Industrial Tribunal on the same day that Judge Hull delivered this tribunal's judgment in the matter of the first sex discrimination complaint. However, no question of issue estoppel or res judicata is raised in relation to the material complaint.

The material complaint

By his Originating Application dated 2nd July 1997 the appellant averred that although at the time when Lambeth refused to reinstate him, pursuant to the Industrial Tribunal's order on 25th March 1993 he believed that such refusal constituted unlawful sex discrimination he did not have the evidence to support such a claim. This was due to Lambeth giving him untrue information and suppressing relevant facts and documents. In particular, he was not able to obtain a copy of the Industrial Tribunal's decision in Ms Lewis' 1986 case until one was provided by the Commission for Racial Equality on 23rd June 1997.He sought an extension of time for bringing this sex discrimination complaint on the basis that the delay in doing so was attributable to the tactics used by Lambeth.

The substantive decision

The Davis Industrial Tribunal found that the appellant was no stranger to the Industrial Tribunal. He was now on his tenth complaint against Lambeth and in addition had three appeals before the EAT and one in the Court of Appeal. He had become familiar with employment law.The tribunal record the nature of his complaint, namely the failure to reinstate him pursuant to the earlier Industrial Tribunal order compared with the treatment afforded to Ms Lewis. Whether that claim has any merits does not fall to be decided. The question is whether it is time-barred.The tribunal did not accept that his waiting for a copy of Ms Lewis' decision prevented him from bringing his complaint. They weighed the prejudice to the parties in allowing the matter to proceed or not and concluded that it was not just and equitable for the complaint under the Sex Discrimination Act to proceed. Secondly, they found that the appellant had no free-standing cause of action under the Directive. Accordingly the complaint was dismissed.

The review decision

By letter dated 21st December 1997 the appellant applied for a review of the substantive decision. He sought a review under Rule 11(1)(d), the new evidence rule, on the basis that Lambeth had failed to disclose relevant documents and he had not been afforded an opportunity to cross-examine Mrs McKane, the Lambeth solicitor who had represented the Council at the substantive hearing. Further, he argued that the interests of justice required a review (Rule 11(1)(e)). First, he objected to Lambeth referring to Judge Hull's judgment of 2nd July 1997 at the substantive hearing; secondly, he contented that the tribunal had erred in law in its application of s.76(5) of the 1975 Act; thirdly, he challenged the tribunal's finding that the Directive did not provide a free-standing cause of action; fourthly, he argued that, contrary to the Industrial Tribunal's finding in the substantive decision, the refusal to reinstate him was a continuing act of discrimination, not a one-off act as the tribunal had concluded; finally, he raised certain miscellaneous matters.By his review decision reasons the Chairman, Mr Davis, dealt with each ground of application and concluded that none raised any basis for a review. Accordingly, he dismissed the application, on the grounds that it had no reasonable prospect of success, under Rule 11(5).

Further review

Following promulgation of the review decision the appellant wrote to the Regional Secretary at London (South) seeking a review of Mr Davis' review decision by the Regional Chairman. In a further exchange of correspondence the Regional Chairman ruled that neither he, nor the President of Industrial Tribunals, could consider a further review application after the original Chairman had ruled on the initial review application.

The appeals

We have had the advantage of reading the concise and closely-argued skeleton submissions prepared by Mr D'Souza in relation to each of the three appeals. He has supplemented those submissions by oral argument today. Having considered the way in which the appeals are put we shall deal with each in turn.

The first appeal

Mr D'Souza first challenges the Industrial Tribunal finding that he had no claim under the Equal Treatment Directive. We reject that submission, first, on the ground that this is a claim of sex discrimination which can be brought under the Sex Discrimination Act . There is no material conflict between the Act and the Directive. Secondly, and in any event, the domestic procedural rules as to time limits under the 1975 Act apply. We see no distinction in principle between this case and that of Biggs v Somerset County Council [1996] ICR 364 simply on the basis that in Biggs the Court was dealing with the time limit under unfair dismissal legislation, which provides for extensions of time under the reasonable practicability test. and under the Sex Discrimination Act the just and equitable test applies. Further, we do not accept that the domestic procedural rules as to limitation of actions in sex discrimination complaints offends European law. Nor do we accept that the Industrial Tribunal rules of discovery, even if they are less favourable than the ordinary civil rules of automatic discovery, are of relevance in deciding the limitation issue in this case.Secondly, as to the Industrial Tribunal's refusal to extend time, we have taken into account the background to the material complaint as Mr D'Souza has related it in his skeleton argument. In summary he repeats that he believed that he had a sex discrimination claim by reference to Ms Lewis before his dismissal.Following his dismissal on 16th January 1990 he had a meeting with Mr Carmicheal, Lambeth's Chief Personnel and Management Services Officer and raised the case of Ms Lewis. He claims to have been told that the entire story about Ms Lewis and her tribunal case was untrue. He then discussed the possibility of raising a claim of sex discrimination with his solicitors, Messrs Lawford & Co, and was advised against it. He accepted that advice and instead pursued his claims of racial discrimination and unfair dismissal, with conspicuous success as it has turned out thus far.On 24th October 1992 he saw an article in the Daily Telegraph concerning Ms Lewis. He has shown us that article. It was reported that Ms Lewis had been at home on paid leave for five years. Although she lost her claim of race discrimination before Mrs Mason's Industrial Tribunal, her claim was then accepted by a Council grievance panel. Finally, she accepted an undisclosed redundancy package in June 1992.The appellant wrote to Lambeth's then Chief Executive, Sir Herman Ouseley as he now is, on 26th October 1992, but took no steps to issue a complaint of sex discrimination.On 9th November 1992, he told us this morning, the appellant applied to an Industrial Tribunal for leave to amend his then complaint of racial discrimination to add a complaint of sex discrimination. That application was refused. He did not appeal against that decision.On 25th March 1993 Lambeth informed the appellant that they would not reinstate him pursuant to the Industrial Tribunal's order. He contends that thereafter Lambeth's failure to reinstate him was a continuing act of sex discrimination (in separate proceedings he also contends that that was an act of unlawful racial discrimination and/or victimisation) so that the material complaint is in time. The Industrial Tribunal rejected that submission. In our view they were entitled so to do. It was a single act, not a continuing act, assuming that an act of sex discrimination after employment has ceased is justiciable. cf. Adekeye v Post Office (No.2) [1997] IRLR 105 .Reverting to the question of extending time under s.76(5), on the basis that the ordinary limitation period for bringing the material complaint expired, at the latest, three months after the refusal to reinstate in March 1993, was the tribunal entitled to conclude that it was not just and equitable to extend time where the material complaint was four years outside the ordinary time limit?We remind ourselves of the approach set out in the judgment of Phillips J in Hutchinson v Westward Television Ltd [1977] ICR 279 . S.76(5) gives a wide discretion to Industrial Tribunals. This Appeal Tribunal will only interfere with that exercise of discretion where it is shown that the Industrial Tribunal has failed to consider material factors, or had considered irrelevant factors or has otherwise reached a perverse conclusion.In our judgment the Industrial Tribunal took into account relevant factors, it did not take into account irrelevant factors, and reached a permissible conclusion for the reasons given, weighing up the potential prejudice to both parties. In particular, it was entitled to reject as a good reason for delay the appellant's claimed difficulty in acquiring a copy of the Lewis Industrial Tribunal decision before issuing the material complaint. Further, it was open to the tribunal to reject the appellant's case that he had been prevented from bringing his complaint due to the alleged concealment of relevant facts by Lambeth. The position was sufficiently clear to him as a result of reading the Daily Telegraph article in October 1992. It is not a reason for failing to commence proceedings that one's opponent has not been forthcoming prior to the issue of proceedings. That is very often the reason for issuing proceedings.We also reject the appellant's complaints about the fairness of the hearing before the Davis Industrial Tribunal. The respondent was plainly entitled to refer to the judgment of the EAT in Appeal 1041/96, although we see from the Chairman's comments on the Notice of Appeal that it did not assist the tribunal in reaching its decision. Secondly, the Chairman was entitled to reject the appellant's application for a direction that Mrs McKane should tender herself as a witness for cross-examination. Next, we do not accept that the Chairman gave the appearance of bias because, in his comments dated 30th January 1998, he proffered the opinion that Mr D'Souza was becoming a vexatious litigant. Finally, we have considered Mr D'Souza's various submissions to the effect that he did not receive a fair hearing before the Industrial Tribunal according to European law, and in particular Articles 5 and 6 of the Directive. We see no grounds for impugning the procedure followed by the Industrial Tribunal in this case.In short, we uphold the substantive decision.

The second appeal

The grounds on which the appellant sought a review of the substantive decision are set out in his letter to the Industrial Tribunal dated 21st and 28th December 1997. We have earlier summarised the broad grounds of the application. Each is dealt with by the Chairman in his review decision reasons.The appellant raises three grounds of appeal against that decision. The first is that the Chairman was wrong in law not to admit new evidence on review. Mr D'Souza accepts that the test is that to be found in the judgment of Popplewell J in Wileman v Minilec Engineering Ltd [1988] ICR 318 , applying the Court of Appeal guidance in Ladd v Marshall [1954] 1 WLR 1489 .One of the relevant criteria is whether the new evidence would probably have an important, although not necessarily decisive influence on the result.The new evidence consisted of 12 lever arch files and 12 full storage boxes of documents running to several thousand pages in the possession of the Council relating to Ms Lewis' grievance, whose existence he first learned of in a letter from Lambeth's solicitor dated 20th November 1997.Would the production of that material be likely to have an important influence on the outcome of the limitation issue? In our view the Chairman was entitled to take the view that it would not.Secondly, Mr D'Souza complains that the Chairman fell into error in holding that an error of law is not subject to the review procedures. We accept Mr D'Souza's submission, based on Trimble v Supertravel Ltd [1982] IRLR 541 , that an Industrial Tribunal is not precluded from reviewing its earlier decision if in so doing it might have to correct an earlier error of law. However, such correction must be incidental to the holding of a review on proper grounds under Rule 11. It seems to us that the grounds relied on by the appellant were pure questions of law which ought properly to be pursued by way of appeal, as indeed they have been. To this extent we have concluded that the Chairman did not fall into error.Thirdly, Mr D'Souza challenges the Chairman's observation in paragraph 13 of his review decision reasons that this appears to be an attempt by the appellant to re-argue the case and to persuade the tribunal to make different findings of fact from those it made on 19th September 1997. We shall say no more than that we agree with that observation. The principle of finality of judicial decisions, subject to appeal, by a fact-finding tribunal is relevant here.It follows that we reject the arguments advanced in the second appeal.

The third appeal

The question of law raised in this appeal is whether, once the original Industrial Tribunal Chairman has considered and rejected an application for a review of that tribunal's substantive decision under Rule 11(5), it is open to the unsuccessful applicant to make a further review application to the Regional Chairman (assuming that he is not the original chairman) or to the President of Industrial Tribunals.Mr D'Souza submits that a second review application may be possible after a first application has been refused. He cites a passage from Harvey on Industrial Relations and Employment Law , paragraph T1114, which queries whether a second application can be made and if so whether it must be on different grounds from the first application.It is not necessary for us to answer that question in this case since, contrary to the appellant's submission to the Regional Chairman, a second application, if permissible, would normally be made to the same Chairman who refused the first review application, in this case Mr Davis.Rule 11(5) provides:
"An application for the purposes of paragraph 1 [ i.e. a review application ] may be refused by the President or by the chairman of the tribunal which decided the case of by Regional Chairman if in his opinion it has no reasonable prospect of success.
In our judgment the effect of the Rule is clear. An application for review will be considered by either the President, or the original Chairman, or the Regional Chairman. Not each in turn. In practice it will normally be the original Chairman who considers the review application in the first instance, for the obvious reason that, having sat on the original hearing, he is familiar with the case and was a party to the decision which it is sought to review. Occasionally that will not be possible, for example, where the original Chairman has retired or died; exceptionally it may be thought inappropriate for the original Chairman to consider the review application, possibly where serious allegations of misconduct are made against him or where he chooses to disqualify himself, or where the Regional Chairman or President is of the opinion that it is not appropriate for the original Chairman to consider the application. Then and only then, will the Regional Chairman or, ultimately, the President, step in to consider the review application. We can see no warrant in the Rule for the proposition that the Regional Chairman is bound to consider an application for a review of a review decision made by the original Chairman, or to refer such application to the President.It follows that we reject the premise on which the third appeal is based.

Conclusion

Mr D'Souza has exhibited considerable learning and tenacity in these appeals, as no doubt he has in other cases which he has brought.In this judgment we have sought to deal expressly with what we regard as the main points in his various arguments. That is not to say that we have ignored other points which have not been dealt with seriatim . We have considered all his contentions, but have concluded that they raise no arguable point or points of law to go a full hearing.Accordingly, all three appeals are dismissed.