MR A A LAWAL v NORTHERN SPIRIT LTD [1999] UKEAT 1170_98_0610

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 1170_98_0610

Case No Appeal No. EAT/1170/98 EAT/1171/98

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A A LAWALAPPELLANT

NORTHERN SPIRIT LTDRESPONDENT

Before

Mr Justice Lindsay

Date 6 October 1999

[1]APPEARANCES For the Appellant IN PERSON For the Respondents MISS J McNEILL (of Counsel) Messrs Kennedys Solicitors Longbow House 14-20 Chiswell Street London EC1Y 4TY MR JUSTICE LINDSAY (PRESIDENT): We have before us two Notices of Appeal. As to one of the appeals, it is a full hearing of the appeal by Mr A.A.Lawal against a decision of the Employment Tribunal at Sheffield in respect of which there had been a hearing on 29 July 1998. The result was presumably announced on that day but the reasons were actually promulgated on 10 August 1998 and the Chairman for that hearing of the Employment Tribunal was Mr D.R. Sneath. The Respondent below, as here, was a company called Northern Spirit Ltd and the decision of the Tribunal was as follows:

"(i) the correct name of the Respondent is Northern Spirit Ltd; (ii) the applicant was not dismissed and that part of his Originating Application complaining of unfair dismissal, is dismissed; (iii) the applicant is estopped from complaining of racial discrimination in respect of matters which occurred before 16 December 1995; (iv) the Tribunal has no jurisdiction to entertain the applicant's complaints of racial discrimination in respect of matters which occurred between 17 December 1995 and 6 December 1996, because the Originating Application was presented out of time and it is neither just nor equitable that that part of the applicant's complaint should be allowed to proceed. (v) the applicant shall pay the respondent's costs limited to £150."

[2]Mr Lawal drafted a Notice of Appeal and that was received on 31 July 1998 (in other words, only two days (I think) after the result of the hearing which he was appealing against and before the reasons had been supplied). On 2 September 1998 Mr Lawal added an affidavit received by the Employment Appeal Tribunal on 4 September 1998. That is one of the two appeals. There is another one which we ought to explain.

[3]By letter of 6 July 1998, the very same Mr Sneath, as Regional Chairman, had refused an application (and we pause there to say that we will treat the matter as it appears from the papers for the time being) for a review of an earlier decision made on the pre-hearing review in the matter. He refused the application for a review on the ground that it had no reasonable prospect of success.

[4]The pre-hearing review had been conducted before a different person, Mr R. Lloyd-Williams, on 11 February 1998 and that pre-hearing review ordered:

"… that the applicant [Mr Lawal] pay a deposit of £150 as a condition of being permitted to continue to take part in the proceedings before the tribunal in respect of his complaints for unfair dismissal and race discrimination."

That decision, following the hearing on 11 February 1998 was promulgated on 12 February 1998.

[5]If there was to be any review of that decision, at the suit of either party, application for such a review had to be lodged therefor within 14 days after 12 February 1998, in other words before 27 February 1998; that is the consequence of rule 11(4). There is, in fact, no indication of any review hearing being sought by Mr Lawal, or indeed by anyone, before 27 February 1998.

[6]The letter which refused the review (the letter, in other words, of 6 July 1998) speaks in its first paragraph of recent correspondence. "I acknowledge" it says, "receipt of the applicant's recent correspondence". That is therefore referring to something "recent" in terms of a letter of 6 July 1998. That suggests that if there had been any request for a review of the pre-hearing review it was made only recently before 6 July 1998, in other words, as one would think, long after the expiry date of 27 February 1998.

[7]We approached the matter at first expecting Mr Lawal to try to show to us that his application for a review of the pre-hearing review had been in time. He has not done so and it has come out, in the course of argument, that it seems that neither side made any application for a review of the pre-hearing review. However, for the moment we will proceed on the basis that there had been an application for a review of the pre-hearing review but that it was out of time, whoever made it.

[8]It is to be noted that unlike a review by a Tribunal of its own motion, a review at the suit of one party or another does not have to be heard by the Tribunal which was responsible for the decision which is being sought to be reviewed; that is the consequence of rule 11(2). That limitation applies only to a review by the Employment Tribunal of its own motion. Moreover, rule 11(5) specifically empowers a Regional Chairman to refuse an application for a review where he judges that it has no reasonable prospect of success.

[9]So if there had been an application for a review but if it had only been made recently before 6 July 1998, Mr Sneath, as Regional Chairman, was entitled to deal with that application for a review and was entitled to adjudge whether or not it had any reasonable prospect of success. In determining, as the letter seems to suggest, that it had no reasonable prospect of success, it seems to us that he would have been doing no more than was absolutely inevitable. The last lines of the letter of 6 July says:

"Meanwhile the Regional Chairman refuses the application for a review of the Pre-Hearing Review decision on the grounds that it has no reasonable prospect of success."

[10]As it seems to us, had there been an application for a review of the pre-hearing review, the Regional Chairman was doing no other than he inevitably had to do. Mr Lawal's Notice of Appeal on this topic, so far as it assumes that there had been an application for a review of the pre-hearing review, must be dismissed. But there is the curiosity that it now transpires that there never had been an application for a review of the pre-hearing review, in which case the whole point of that head of Mr Lawal's argument falls to the ground.

[11]Let us now revert to the Notice of Appeal of 31 July 1998. As to that, there had been a preliminary hearing at the Employment Appeal Tribunal on 15 February 1999 and three issues only were permitted to go forward to a full hearing. There was no appeal against that restriction and it is right therefore that we should hear only those three broad heads of argument. They are best seen in the skeleton argument of Miss McNeill, who appears for the Respondent, and it is convenient that I should read the issues, as specified, because it has been convenient also, not only for us, the Employment Appeal Tribunal, to separate those issues and deal with them one by one, but also Mr Lawal has conveniently adopted the same formula and has addressed these issues, which seem to us in any case to be the issues which arise. The issues are as follows:

"1. Pursuant to the decision of the Employment Appeal Tribunal of 15th February 1999, the appeal is limited to the following issues: (i) Whether Mr Sneath was disqualified from hearing the originating application; (ii) Whether the employment tribunal erred in law in holding that Mr Lawal's conduct in giving eighteen months' notice of termination of his contract of employment by way of early retirement did not amount to an acceptance of a repudiatory breach of contract; and (iii) Whether the tribunal erred in law in excluding Mr Lawal's complaints of race discrimination before December 1995 when he could have included those complaints in the originating application which he filed at that time."

[12]A fourth issue was touched on by the Employment Appeal Tribunal on 15 February 1999, namely whether, as Mr Lawal was out of time in his complaint of racial discrimination in 1996, it would be just and equitable to extend time. The Employment Tribunal dealt with that. What they said was this, in their paragraph 11:

"11 That leaves for our consideration what might be described as a residue of complaints from the Further and Better Particulars submitted on 30 June, those relating to matters which took place in 1996, the last of which happened on or about 5 December. That date preceded the presentation of this application by at least six months. It was therefore, out of time. …"

On that issue Miss McNeill's argument is described in her paragraph 1.2. She says this:

"The EAT in its decision of 15th February 1999 has suggested that it should also have before it the issue of whether it would be 'just and equitable' to extend time to permit Mr Lawal to pursue his allegations of race discrimination out of time … . In relation to the matters occurring in 1996, the tribunal has given its decision that it would not be just and equitable to extend the time limit. This is not a decision which can be challenged in the absence of any error of law."

That is undoubtedly a correct analysis of the law in this area. The Employment Tribunal dealt with the point extremely economically. They said this:

"11. … Since that complaint is tied to the earlier matters giving rise to the alleged constructive dismissal, we can see no reason in justice or equity to allow the applicant to proceed solely with that element of the case."

[13]But it does not follow, of course, that an economical dealing with a point is a wrong dealing with a point. Mr Lawal has not been able to show to us that the Employment Tribunal, in failing to extend time, either took into account factors which it should not have done, or failed to take into account factors which it should have done, or it acted under some wrong principle. The appeal as to the Employment Tribunal's refusal to extend time is therefore dismissed.

[14]We accordingly now turn to the remaining three issues. The first was whether Mr Sneath disqualified from being a member of the Tribunal of three that heard and decided the matter on 29 July 1998. The argument, as it seemed it was going to be, depended on rule 7(9). That says:

"No member of a tribunal which has conducted a pre-hearing review shall be a member of the tribunal at the hearing of the originating application."

Just what a pre-hearing review is emerges from rule 7(1):

"A tribunal may at any time before the hearing of an originating application, on the application of a party made by notice to the Secretary or of its own motion, conduct a pre-hearing review, consisting of a consideration of – (a) the contents of the originating application and notice of appearance; (b) any representations in writing; and (c) any oral argument advanced by or on behalf of a party."

[15]Now here the pre-hearing review, as we have already mentioned, was conducted by Mr R. Lloyd-Williams on his own on 11 February 1998. Mr Sneath took no part in that. Mr Sneath was therefore free to be a member, indeed free to be the Chairman, at the hearing of 29 July 1998.

[16]Supposing that Mr Sneath had, on 6 July 1998 refused a review of the pre-hearing review and supposing also that he had done so on the ground that it had no practical prospect of success, even so nothing in the rules prohibits a person in such a position from being party to the substantive hearing. Moreover, on the facts of this case, the refusal to review does not seem to have necessarily involved any preconception of the merits of Mr Lawal's substantive case. The application for a review of the pre-hearing review, if indeed there was one at all, was, it would seem, out of time. It therefore would have had to be rejected on that account. No assessment of the merits of Mr Lawal's substantive case, as to its ultimate success or failure, was any necessary part of the refusal of a review of the pre-hearing review and, indeed, there is no indication that Mr Sneath personally took, or arrived at, any such early view of the merits of Mr Lawal's substantive case.

[17]So there is no material express provision of a kind which would have barred Mr Sneath from acting on 29 July and, in any event, assuming the object of rule 9(7) to be to avoid even the appearance of pre-judgment of the merits of the substantive application, here there was no reason to suppose there was any such pre-judgment because whoever refused the review of a pre-hearing review was doing merely that which he had to do. So this ground, even supposing that there had been an application for a review of the pre-hearing review, must fail. But, as we have understood it, Mr Lawal switches to a complaint as to the part of the letter of 6 July which deals with a rather different point. In it, it says as follows:

"This matter has been referred to the Regional Chairman, Mr Sneath, who has read the file and decided that the matter should now be listed for a preliminary hearing before a full tribunal for it to determine the matters set out on the third page of Kennedy's letter [Solicitor's letter] dated 29 May 1998, (copy herewith). In particular the parties should consider: (a) the impact in this case of the reasoning behind the decisions in Holland v Glendale Industries Ltd [and it also refers to an IDS Brief and another case Divine-Bortey ] ; and (b) whether this application has any prospect of success and whether it should be struck out."

[18]It cannot possibly be the case that a Regional Chairman can be accused of having taken or indicated a prejudiced position simply because he requires there to be a preliminary hearing on points such as Mr Sneath appears to have required to be dealt with. Obviously, a Regional Chairman must be free to see that the most economical way of dealing with a case is by way of preliminary questions being raised and it cannot be the case that, in so doing, he bars himself from appearing on the substantive heading. There is no rule is to that effect.

[19]So this first point ends up rather differently from the position which we had thought would arise because the way the matter had first appeared was that there had been a late application for a review of the pre-hearing review. We have dealt with what would have been the position had that been the case but it transpires that there was no application for a review of the pre-hearing review at all, in which case the whole of the structure based on rule 7(9) never arises in the first place. There was, in other words, a basic confusion of fact at the Employment Tribunal level when the last paragraph of the letter of 6 July 1998 came to be written. But that error affords no ground upon which Mr Lawal can succeed.

[20]That first ground - whether Mr Sneath was disqualified from hearing the originating application - must be regarded as a ground which fails.

[21]We now turn to the second ground, which was whether the Employment Tribunal was correct in law in holding that there was no constructive dismissal and, indeed, no dismissal at all? Miss McNeills's skeleton argument frames the question slightly differently as her 1.2 paragraph but the point remains as we have mentioned it. This issue was dealt with at some length in paragraphs 7 and 8 of the Employment Tribunal's reasons which we will not take up time in reading in full but within those paragraphs one finds a number of relevant points.

[22]First, Mr Lawal had made a complaint that a white train conductor had been allowed to leave, whereas he had not. A complaint that he should have been allowed to leave sits uneasily with an allegation of constructive dismissal. In those paragraphs it is recorded that Mr Lawal therefore said that the only option open to him was to elect for early retirement. Early retirement, again, is a notion that sits uneasily with an allegation of constructive dismissal. It is found within those paragraphs that he had accordingly given 18 months' notice of termination in September 1995, a notice which, we apprehend, was limited to expire on his 50th birthday. It is, within those paragraphs, found that before he left he made no complaint of being forced to go. There is a finding by the Employment Tribunal that he left employment voluntarily. He wanted to go, they held, for his own reasons and there is a conclusion by the Employment Tribunal that the giving of 18 months' notice did not represent the acceptance by Mr Lawal of a repudiatory breach by the employer.

[23]We would not, for our part, wish to rely in any heavy way on the notion, which was floated in the case of Holland v Glendale Industries Ltd , that in order to be able to rely on a constructive dismissal the employee has to have indicated that he has found some feature of his employment intolerable and has to tell his employer that he is leaving on that account. It is all too easy to imagine cases where an employee is so intimidated or overborne that he or she leaves without ever having the courage to say why he or she was leaving or to explain why he or she has had to go. The case of Holland v Glendale therefore may be suspect but, even leaving that aside, the Employment Tribunal's reasoning in the case before us does not depend on Holland v Glendale . The very sentence mentioning the case begins with the word "Furthermore". The Employment Tribunal's conclusion that Mr Lawal had left voluntarily and for his own reasons stands unaffected by any doubts as to Holland v Glendale , as also does the obvious practical point that if a man elects to stay on for a further 18 months, giving a notice which expires on his 50th birthday, it is difficult to find credible any assertion by him that the conditions that he was enduring were so intolerable that he was in effect forced to leave employment and to accept a breach of contract on the employer's part.

[24]Where the principles underlying constructive dismissal are not in issue, and they do not seem to have been in issue in this case, the question of whether there was or was not a constructive dismissal is very much a matter of fact for the Employment Tribunal which hears the case and we detect no error of law in its conclusion on this head of the case and again, therefore, this particular head of Mr Lawal's appeal must fail.

[25]We now turn therefore to the third remaining ground of the Employment Tribunal decision and, by way of reminder, it was that the Applicant is estopped from complaining of racial discrimination in respect of matters which occurred before 16 December 1995. Consideration of this point requires a brief excursion into the history of dealings.

[26]On 12 December 1995 Mr Lawal signed an earlier IT1 (earlier, in other words, than the one which has led to the decision which is under appeal before us today). That earlier IT1 complained of racial harassment at work. The Respondent to that early IT1 was Regional Railways North East Ltd. The Employment Tribunal has held that the correct present name of the Respondent is Northern Spirit Ltd. Mr Lawal's later IT1 of 16 June, in other words the one leading to the decision under appeal, was addressed to MTL Rail Ltd, he having crossed out the words "Regional Railways North East".

[27]It is, of course, notorious that there have been reorganisations in the rail industry. and we shall take it that there is succession between Regional Railways North East Ltd, perhaps MTL, and then Northern Spirit Ltd. At all events, the Employment Appeal Tribunal, at the preliminary hearing on 15 February 1999, required that Mr Lawal should not be permitted to take further points on the identity or name of the Respondent. So it seems to us that the succession which we take to have existed has to be taken to have existed.

[28]The IT1 of 16 June 1997 says, inter alia, "I also feel that the harassment was racially motivated" and the harassment is described as to be "at work". The question thus arose "Could Mr Lawal be permitted in June 1997 to raise issues as to racial discrimination which he could have raised, but had failed to raise, in his complaint of December 1995"? That leads to a brief consideration of the principle of the long established case Henderson v Henderson , which has been applied more recently in the Employment Tribunal area in a case called Divine-Bortey v Brent London Borough Council heard in the Court of Appeal. The Court of Appeal reversed the decision of the Employment Appeal Tribunal and a brief study of the case will show that it might be difficult for Mr Lawal to find any other judge more receptive to an argument that on its facts Divine-Bortey in the Court of Appeal was wrong. Indeed, later Court of Appeal authority suggests that Henderson v Henderson should bar later litigation only where the failure to litigate an issue earlier is tantamount to an abuse of process, whereas Mr Divine-Bortey, on the facts of his case could not, as it would seem, be fairly accused of that. However, leaving that point aside, the principle of Henderson v Hendson as described in Divine-Bortey cannot be doubted and cannot be doubted, either, in its application to the employment field. The Tribunal said this on that subject:

"10. … That brings us to the second principle declared in recent authority, being Divine-Bortey v Brent London Borough Council reported in the Times Law Reports for 20 May 1998. The principle is that where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case and will not, (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. Thus, the plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

[29]That, as it seems to us, is a correct summary of the Henderson v Henderson principle, as reiterated by the Divine-Bortey case. All that Mr Lawal had complained of in the earlier racial discrimination case was of an incident on 19 September 1995. As to that, the Tribunal said this:

"9. It is now necessary to look at the earlier case brought by the applicant respondent under number 70807/95. That case was heard in March 1996. The applicant was unsuccessful. He appealed. His appeal succeeded and judgment was given on 16 May 1997. The case was remitted to a different Tribunal which on 4 September found the Applicant's complaint well founded and ordered compensation and interest worth £14,850 odd. That claim, presented as we have said, on or about 16 December 1995 was limited to an incident on 19 September 1995 when a colleague had insulted the Applicant in the presence of another. Thereafter the Respondent failed to investigate the Applicant's complaint about that matter properly."

The Tribunal continued:

"10. It can be seen from our description of the applicant's case as disclosed in his pleadings, that he was saying that the respondent's conduct forced him to resign. He communicated the decision to resign on 1 September 1995. Thus, when he came to present his application 70807/95 in December that year, he was in a position to include all the other matters which now form the subject of this complaint except, of course, those matters which happened in 1996. …"

Finally, on the point they said this:

"… Given, as we have found, that the applicant could have brought forward in December 1995 all matters giving rise to his claim of constructive dismissal and all outstanding complaints of racial discrimination, we find that he is estopped from raising those matters in these proceedings, there being no special circumstances to warrant disapplying that principle."

[30]And accordingly they concluded, as we have already mentioned, that the Applicant is estopped from complaining of racial discrimination in respect of matters which occurred before 16 December 1995. Unlike Mr Divine-Bortey, who could, with some justice, claim that he had not realised, and could not reasonably be expected to have realised, on the occasion of his earlier litigation, that he already had the makings of a complaint of racial discrimination which could then have been made, Mr Lawal's earlier claim was for racial discrimination and he has no adequate explanation why he complained only of the incident of 19 September 1995 if he already had other racial discriminatory complaints open to him and as to which he had some intent that he might, sooner or later, bring them to litigation. His unexplained failure to include later racial discriminatory incidents when complaining of racial discrimination can, we think, fairly be described, as it seems to us, as abusive and hence, even if Divine-Bortey does need to be reviewed in the light of later Court of Appeal authority, the Tribunal's conclusion is still, in our view, justified in point of law. What Miss McNeill's skeleton says, economically, is this:

"It was incumbent upon Mr Lawal to include in his claim at that time all his outstanding complaints of detrimental treatment on grounds of his race against his employer. The Respondent should not have to meet claims of this nature in a multiplicity of actions"

. That seems to us a correct argument. We detect no error of law in the Employment Tribunal's conclusion on this head. We have now dealt with all the issues which were permitted to go to a full hearing when the matter was earlier heard by the Employment Appeal Tribunal.

[31]There are in Mr Lawal's affidavit numerous complaints with labels attached to them such as bias, improper conduct, jingoistic and champertous intentions, malice aforethought and nobbling, but the preliminary hearing at the Employment Appeal Tribunal on 15 February 1999 was careful to specify the issues which would be permitted to go forward and none of those such issues was permitted to go forward. The whole point of the preliminary hearing technique is to sift out the good from the bad and its purpose would be quite undone if we were to allow other complaints of Mr Lawal of such a broad nature to go forward to be heard by us. Thus we do not propose to deal with those other issues save to say that we have heard nothing that suggests there is any foundation of fact for such matters. That, though, is very much an observation which is obiter; limiting ourselves to the matters which are properly the subject of an appeal, we have now dealt with all of them. We have found no error of law in any of them and accordingly we must dismiss the appeal.