Augustin v London Borough Of Waltham Forest Housing Services [1999] UKEAT 1135_98_0403

EAT

Augustin v London Borough Of Waltham Forest Housing Services

[1999] UKEAT 1135_98_0403 · 1999-03-04

MR JUSTICE HOLLAND : Our present understanding of the essential facts of this matter is as follows. .Miss Augustin was and is an employee of the First Respondents, the London Borough of Waltham Forest.

On 8 August 1996 she initiated a formal grievance by way of a letter of that date. The letter indicates that the grievance was based upon racial harassment and discrimination, sexual harassment and discrimination and general victimisation. She names three fellow employees. Four days later, on 12 August 1996, a fellow employee Mr Imona wrote a letter addressed to the First Respondents' Assistant Director of Personnel, Sonia Campbell. The letter is before us. It is headed "Confidential" and it starts:

"Re: Ms Marie Augustine - Training Officer, Housing Department.

I am writing in my capacity as Secretary of the Black Workers Group, in order to seek assistance for a black employee, named above.

I am very concerned about the health of the above named colleague, whom I have observed over a long period, has been under some degree of stress and strain and these are manifest in her general attitude and speech towards her colleagues at work, not to mention the fact that she seems to have neglected her personal hygiene and appearance."

We need not read out the balance of the letter. It continues in the same vein. Essentially, it is inviting psychiatric assistance for Miss Augustine.

On 27 August 1996 the Applicant initiated proceedings before the Industrial Tribunal. We have not seen the relevant IT1. We do not know presently the precise ambit of those proceedings. What is apparent from the papers before us is that for such proceedings she was represented for a considerable period of time by her Union. It would seem that whilst the Union was representing her, bundles of documents were prepared for use by the Industrial Tribunal and in circumstances which are not explained to us and which, on the face of it, seem extraordinary, this particular letter was included with such documentation.

It is the case for the Applicant that her Union did not reveal the letter to her. It may be that, if that be right, they were exercising plain common sense. However, in January 1998 she ceased to have the advantage of representation by the Union. She took over conduct of that first complaint herself and that meant that she received the collected documentation. Thus it is, she says, she saw the letter for the first time. That led her, on 23 February 1998, to complete the IT1 for the present proceedings. This IT1 complains against her employers and Mr Imona, victimisation and harassment. The complaint as set out by her is in these terms:

"On 26 January 1998, I saw, for the first time, a letter written by Fred Imona about myself (letter attached). This letter, written to my former Chief Officer, Sonia Campbell, LBWF Personnel, was never mentioned or discussed with me. This letter is not only damaging to my professional image / credibility but also to my integrity. On a personal level it has caused tremendous distress.

(2) The contents of the letter are simply not true / factual.

(3) The matter is being brought to the scrutiny of the industrial tribunal because of the short as well as long term consequence to myself. Further, there would be a conflict of interest if it were dealt with internally, given my Industrial Tribunal complaint against LBW Forest in August 1996."

We interpose: on our understanding of the matter that was the only document that served to identify the nature of her complaint prior to the hearing before the Industrial Tribunal. That hearing took place on 13 July 1998 and was held at Stratford. The unanimous decision of the Tribunal was that the case was dismissed as the Tribunal had no jurisdiction to hear it. Turning to paragraph 19 of the Extended Reasons the Tribunal recorded its adjudication in these terms:

"19. We therefore dismiss this application on the grounds that this Tribunal has no jurisdiction to hear such a claim -

i Because the application was presented outside the three months time limit set down in the Race Relations Act and the Sex Discrimination Act.

ii Because the action complained of was not perpetrated by an employee who was acting in the course of his employment, and therefore the London Borough of Waltham Forest cannot be responsible for Mr Imona's actions, and Mr Imona was not acting in his capacity other than that of Secretary of the Black Workers Group of UNISON. No claim has been brought against UNISON as a Respondent and therefore this claim is dismissed."

It is to be observed that before that Tribunal the Applicant represented herself. The Respondents were represented by Counsel. An appeal has been mounted against that decision which is before us today by way of a preliminary hearing. It is our task to decide whether this matter should go forward for an inter partes hearing at which the Respondents would be represented, or whether it is a matter for it to be terminated today, for want of any arguable point of law.

We have been persuaded that there are sufficient points of law arising from the Extended Reasons to justify an inter partes hearing. We identify those points as follows.

First and foremost, in adjudicating as to the operation of the time limits respectively prescribed by the Race Relations Act and the Sex Discrimination Act, there is no reference by the Tribunal to the issue as to whether it was just and equitable to extend the time, as is allowed in, for example, section 68 (6) Race Relations Act 1976.

The Tribunal in its Extended Reasons directed itself in paragraph 10 that it had the power to make such an extension and in paragraph 11 its findings of fact may bear upon that issue. All that said, there is nothing else in the Extended Reasons dealing with a matter that was plainly crucial to the question of the limitation period operative in this matter and Mr Edward, on behalf of the Applicant, submits with force that the Extended Reasons are flawed on that ground. We agree that there is certainly there a matter that is open to argument and merits attention with the advantage of an inter partes hearing.

Paragraph 19, as already cited, also raises another problem which is taken, not by Mr Edward, but by this Tribunal. Having in the words already indicated ruled that there was no case against the London Borough of Waltham Forest, because there was no evidence to substantiate vicarious liability on the part of the First Respondent for the Second Respondent's act in writing the letter, the Tribunal does not go on to deal with the position of the Second Respondent as an individual. There is no ruling about this and presently we are unable to understand the significance of the reference to the fact that there had been no claim brought against UNISON. Currently there is, on the face of it, an unresolved issue relating to Mr Imona as an individual.

The third ground to which we draw attention has emerged in the course of submissions this morning. It seems that the case that the Applicant wished to present to the Industrial Tribunal was not such as it appeared in the IT1. What she wished to advance was the following. Given that she had initiated a formal grievance on 8 August 1996 naming three fellow employees, it is her case that those employees or others associated with them conspired with the Second Respondent to write the letter to Sonia Campbell, thereby to denigrate her and thereby to hinder the proper processing of her formal grievance procedure. Thus it is, she submits, that the letter of 12 August reflected an act of victimisation by reference to both the Race Relations Act and the Sex Discrimination Act.

The concern that is advanced is this: that acting in person she never got that point clearly over and that the Tribunal, spotting the potential force of the issue as to limitation, cut short the hearing without giving her a chance to develop that matter.

Mr Edward concedes, as he has to, that had that case fully emerged in the course of the hearing, the Tribunal would have had to concern itself with the fact that it had not been raised before and he concedes that it is highly likely that it would have had to grant to the Respondents an adjournment in order to investigate the matter further. All that he acknowledges, but nonetheless he submits that matters did go wrong in the hearing before the Industrial Tribunal so that it did not do adequate justice to a case that was being advanced within the limited capabilities of a litigant in person. Subject to one direction that we are going to give at the end of this judgment, we think that this is also a matter that should be considered by this Tribunal in the course of the inter partes hearing. That is, it should be considered at a time when it has the advantage of hearing representations about the matter on behalf of the Respondents.

For those reasons we allow this matter to go forward as indicated. All that said, we wish to conclude with certain observations.

First, we have every sympathy with the Industrial Tribunal in its essential approach to this matter, at least on the material that had been before it by way of the IT1. It is very difficult to see this particular letter as being a foundation for a complaint to an Industrial Tribunal. It is difficult also to envisage a hearing about the letter, its origin and circumstances, as being appropriately heard in 1998, or for that matter in 1999 in dealing with events in August 1996. The essence of jurisdiction of an Employment Tribunal is to deal with matters when they are fresh to the mind, hence these rigorous time limits.

Further, we are concerned about the whole merits of the matter. Any lawyer looking at the letter would think, in terms, of an action for libel in the County Court. If that could not be avoided it is very difficult looking at the letter to think in terms of a complaint to an Industrial Tribunal.

All those were thoughts that were to the mind of this Tribunal before we heard Mr Edward and before we fully analysed the Extended Reasons.

We are not making any final judgment about the matter, but we are raising them now so that the Applicant, who is now the Appellant, can think very carefully about this matter and can listen carefully to the advice that she will no doubt be getting about it. The essential point is this. We are unable to say she will not succeed, but she can only succeed on the basis of a very tenuous and fragile chain of argument starting with a serious problem about the delay between August 1996 and February 1998, a delay that was far beyond the three months that is normally allowed for this matter. She may be able to persuade a Tribunal that it is just and equitable to allow the matter to go forward, but we draw attention to the potential difficulties in her path.

With those observations however, for the reasons already indicated, we feel that we are bound, and we do, send this matter forward for the inter partes hearing.

We give however, the following directions. First, we direct that before that hearing the full case for the Appellant be set out in writing and provided to the Respondents and to this Tribunal.

We emphasise that by way of this direction we are in no way giving leave to make amendments to the IT1. We are simply ensuring that by the time the inter partes hearing takes place, the precise nature of the case will at long last become apparent. This morning we have had the advantage of hearing it orally from Mr Edward, but we have not yet had the advantage of seeing it set out in writing. We emphasise: the more detail there is in it the better.

The second direction we give is that the notes of Mrs Prevezer, who chaired the hearing, should be transcribed and made available to the parties so that the Tribunal may learn from them the course of events before the Industrial Tribunal.