Augustin v London Borough Of Waltham Forest & Ors [1998] UKEAT 636_98_0110

EAT

Augustin v London Borough Of Waltham Forest & Ors

[1998] UKEAT 636_98_0110 · 1998-10-01

MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing was to determine whether there is an arguable point of law raised in the Notice of Appeal dated 24 April 1998. Ms Augustin is employed by the London Borough of Waltham Forest and she made a complaint of unlawful discrimination on the grounds of race and sex against her employers and a number of people who worked there.

By their unanimous decision, her complaints were dismissed following a three day hearing at London North.

The Industrial Tribunal overtly directed themselves correctly as to the law in paragraph 17 of their decision and it cannot be faulted. Much of their decision is concerned with making findings of fact with which this court cannot and will not interfere. However, what emerged during the course of the appeal hearing, when the Appellant had the advantage of being represented by Mr Wilson of the ELAAS scheme, was that there may have been unfairness in the way in which the Tribunal received the Appellant's evidence.

As we understand what she was telling us, at the outset, a discussion took place within the Industrial Tribunal as to time limits, and the Industrial Tribunal indicate in their decision at paragraph 6 that they were not prepared to extend time in relation to any of the complaints which were made more than three months before the Originating Application had been presented to the Tribunal for the reasons set out in that paragraph.

It would appear that the Applicant considered that the effect of that ruling was that she was not entitled to adduce any evidence in relation to any matter which occurred earlier than three months before she presented her Originating Application. Accordingly, large parts of her complaints listed in her IT1, she did not feel able to articulate in her evidence. She had prepared before the hearing a long witness statement where she covered all the matters raised in the IT1, but in the light of the ruling did not refer to them all.

In paragraph 19 of their decision, the Tribunal noted that Ms Augustin had complained that she had been subjected to victimisation pursuant to section 4 of the Sex Discrimination Act and section 2 of the Race Relations Act 1976 . They said this:

"We note that Ms Augustin was not represented and that representation was withdrawn a few weeks prior to the Tribunal hearing. However, as has been stated, Ms Augustin is a highly educated, articulate lady and she at no time addressed this aspect of her application although she gave evidence during the course of the hearing lasting approximately a whole day.

That is entirely consistent, as we understand it with Ms Augustin's understanding of the effect of the ruling on the time limit of point.

The point at issue therefore, is precisely what was she told. It would appear that she believed that she would not be able to refer to earlier incidents in support of both claims which were within time. It becomes important therefore to ascertain precisely what it was that was said in the Industrial Tribunal and what the ruling was.

This is a case where we cannot reach a conclusion on the preliminary hearing at this time in the absence of the procedure being invoked where a complaint is made about the rulings or the way that the Tribunal has conducted itself. In order to do justice to this appeal, we will adjourn this preliminary hearing in order that the Appellant provide an affidavit as to what she says happened at the Industrial Tribunal in relation to the evidence that she was being permitted to adduce during the hearing and any rulings that were made. When that affidavit evidence has been received, we will send a copy of it to the Industrial Tribunal Chairman and to the Respondents and invite their comments upon it.

Thereafter, the preliminary hearing will be reconvened, notice of the date of that hearing will be given to the Respondents and they may appear at that hearing, and subject to leave being granted at that time, may make representations to the Employment Appeal Tribunal if they wish to do so. The purpose of this exercise is to try and ascertain whether an injustice was done to the Applicant, by the way that the evidence was adduced in this case.

That is the only issue which we consider to be arguable out of the numerous points which are made by the Appellant herself and on her behalf. We regard much of her response to the Industrial Tribunal's decision as being effectively a challenge to the facts as found by the Industrial Tribunal. She felt patronised by certain parts of the Industrial Tribunal's decision and she drew attention in particular to the statement that she had been described as a "highly educated and articulate lady". She makes the point and the President agrees with it that the word "lady" is not an acceptable word to use in this context. She is either to be described as a woman or a female depending on the context, but that apart it seems to us that there is nothing in the Industrial Tribunal to which objection can be taken as a matter of law. They have made succinct and clear findings of fact against the Appellant and we cannot unscramble those.

Accordingly, the only issue is the one that I have identified and if that point fails at the presumed preliminary hearing, then the appeal will be dismissed. It is only if at that hearing it transpires that there is more to this than we had first appreciated that the matter will go for a full hearing. Because it is important that this matter is driven forward, we direct that the Appellant should file that affidavit within 14 days and unless she does so, the appeal will be dismissed. That will ensure that the matter is progressed with due despatch. On that basis this appeal hearing is adjourned.