MR C ALEXANDER v NORTHAMPTON BOROUGH COUNCIL [1999] UKEAT 545_99_0707

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 545_99_0707Case No Appeal No. EAT/545/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR C ALEXANDERAPPELLANTNORTHAMPTON BOROUGH COUNCILRESPONDENT
Before
His Honour Judge D M LevyDate 7 July 1999
[2]APPEARANCES For the Appellant THE APPELLANT IN PERSON JUDGE D M LEVY QC: Mr Alexander appeals from a decision of an Employment Tribunal sitting at Bedford on 23 rd February 1999 when they considered an application by the Respondent to his application to the Employment Tribunal that that application should be struck out. The Employment Tribunal ruled in a decision sent to the parties on 18 th March 1999 that it should be. Mr Alexander appeared in person before the Employment Tribunal as he appears before us this morning. The background to the matter of the Appeal we can take from the early paragraphs of the Extended Reasons which were sent to the parties following the hearing of 23 rd February 1999. The Appellant was born on 28 th October 1960 and left the Respondent's employment of his own volition, resigning on 30 th April 1996. He had been employed part-time as an Equal Opportunities Officer by the Respondent.[3]On 21 st June 1996 he lodged an application with the Industrial Tribunal claiming racial discrimination, breach of contract, unfair dismissal and victimisation. The matter was decided by a Tribunal sitting at Bedford in 1996 and his application was unanimously dismissed. He issued a Notice of Appeal from that decision on 2 nd April 1997. On 10 th October 1997 the Employment Appeal Tribunal dismissed the Applicant's Appeal at a Preliminary Hearing. On 26 th November 1997 leave to appeal to the Court of Appeal was refused. On 20 th May 1998 Mr Alexander applied to the Court of Appeal for leave to appeal against the dismissal of his appeal and to extend time to appeal. On 29 th July 1998 the Court of Appeal granted his application for leave to appeal and an extension of time. The matter remains unresolved on appeal. Mr Alexander told us this morning that the Court of Appeal is to hear his appeal later this month.[4]On 10 th November 1998 the Applicant lodged a new application to the Employment Tribunal complaining of racial discrimination, breach of contract, unfair dismissal, victimisation and breach of statutory rights against the Respondents. The IT.1 lodged in support of his application purported to bring a number of complaints against the Respondent complaining of continuing discrimination towards the Applicant by "their unlawful advertising of the post which I used to fill and which is the subject of litigation".[5]The Notice of Appearance entered by the Respondent contained this passage:
"The application to an Industrial Tribunal form IT.1 submitted by the Applicant on 6 th November 1998 refers to alleged identical actions. Moreover, there is no subsequent action disclosed by the Applicant which entitles him to apply to the Employment Tribunal. It is further denied that the Employment Tribunal has jurisdiction to consider the Applicant's further complaints since the application is not made within 3 months of the Applicant leaving the Respondent's employment."
[6]The Appellant's complaint was listed for hearing on a preliminary point as to whether or not all or any part of the Applicant's claim should be struck out as revealing no cause of action in the Employment Tribunal.[7]The later paragraphs of the Extended Reasons of the Employment Tribunal hearing this second application by Mr Alexander set out the rival contentions by the Applicant and by the Respondent at the hearing before it including 6 submissions made by the Respondents.[8]Having set out those respective submissions, the Employment Tribunal said:
"Having considered the representation made by the parties the Tribunal unanimously accepted and preferred the arguments of the Respondents and dismissed the Applicant's claim on the basis that the claim before the Tribunal disclosed no cause of action."
[9]From that decision, Mr Alexander appeals. He submits that the Tribunal's decision was perverse and racist and had no basis in law apart from the institutional will to uphold racism towards black people. We do not find the Tribunal's decision perverse or racist and in our judgment it has a basis in law for the reasons it clearly state. Secondly, he submits that the Tribunal's decision was contrary to the operation of procedural law concerning contractual matters under dispute at the Court of Appeal. Mr Alexander in his further submissions to us, which he has courteously and clearly made, suggests that it was open to the Respondent to advertise the post which he used to have in the same way as a post can be advertised for a person absent on maternity leave. The analogy is not appropriate to circumstances where there can be as there has been a considerable delay in the determination by the Court of Appeal of his first application to an Employment Tribunal. He also submitted that the Employment Tribunal failed to observe a decision of a higher court; this was a reference to his original application awaiting the decision of the Court of Appeal. The fact that a decision from a Court of Appeal is awaited is not in our judgment a reason for the Employment Tribunal to defer hearing on the preliminary point raised by the Respondent.[10]Finally, Mr Alexander submitted the decision of the Tribunal was perverse. With great respect to Mr Alexander, we find no perversity in the decision made by the Employment Tribunal. The matters which are set out in the submissions of the Respondent which are recorded in paragraph 14 of the Extended Reasons are all matters which, in our judgment, would entitle an Employment Tribunal properly to decide for the reasons they gave that the application should be dismissed. In the circumstances, we will dismiss this Appeal at this stage.