LONDON BOROUGH OF CAMDEN v MR A MOHAMMED [1999] UKEAT 556_99_1512

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 556_99_1512Case No Appeal No. EAT/556/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LONDON BOROUGH OF CAMDENAPPELLANTMR A MOHAMMEDRESPONDENT
Before
His Honour Judge A WilkieDate 15 December 1999
[1]APPEARANCES For the Appellants MISS A MORGAN (of Counsel) London Borough of Camden The Town Hall Judd Street London WC1H 9LP For the Respondent MR N BOOTH (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW JUDGE WILKIE QC : This is an appeal by the London Borough of Camden against the decision of the Employment Tribunal sitting at London (North) that the complaint of racial discrimination presented by Mr Mohammed was within the time limit prescribed by s.68 (1) of the Race Relations Act 1976 and that the tribunal has jurisdiction to consider that complaint. The decision arose out of a preliminary hearing to consider that point, held on 12th February 1999. The decision was sent to the parties on 2nd March 1999. The issues in this appeal essentially are three in number and, because of the history of the matter, emerged from the Employment Tribunal in a somewhat confused state. We have had the benefit of skeleton arguments from Miss Morgan and Mr Booth of Counsel and also oral arguments and we have been greatly assisted by them. They have enabled what was previously confusing to become pellucidly clear and we are grateful to them for their assistance.[2]The history of the application to the Employment Tribunal is as follows. Mr Mohammed launched an application claiming racial harassment by an IT1 which was apparently completed on 20th October 1998 but which was filed with the Employment Tribunal on 26th November 1998. Accordingly the three-month time limit meant that complaints of actions on or after 26th August 1998 were in time. He expressed his complaint of racial harassment in Box 11 on the form as follows:
"I have been the victim of a sustained campaign of bullying, intimidation, denagradation and belittling. This campaign has started in March 1998 and has continued to date. The perpetrator of this campaign is my line manager employed by London Borough of Camden, Education Department. Particulars of the victimisation campaign include: …"
He then set out four specific instances and referred to an attachment of four pages for details. The Line Manager is by name a Mr Jackson.[3]The attachment refers to a number of instances, either specifically of complaint or of rehearsal of various developments in an ongoing situation. The earliest date is 9th March 1998 and the last date is 3rd July 1998. Thus there was no specific allegation particularised of any act on the part of Mr Jackson which fell within the period of three months before the application was launched before the Employment Tribunal.[4]The respondent put in a Notice of Appearance which, in the first paragraph, took the point that the application was out of time and that the Employment Tribunal had no jurisdiction to hear the claim as the last act complained of occurred on 26th June 1998. There was then a substantive answer to the contentions raised in the tribunal explicitly stated to be without prejudice to the time argument. The substantive part of the Notice of Appearance provides, inter alia, in paragraph 2.8:
"The Applicant alleges that the "campaign of harassment is continuing to date yet does not explain in what way or by what acts this alleged harassment continues."
In paragraph 2.12 the Notice says:
"The Respondent respectfully reserves the right to amend the Notice of Appearance when there has been a response from the Applicant to a request for further and Better Particulars of the Originating Application."
No such request has ever been made.[5]On 5th February 1999 the solicitors by then acting for the applicant wrote to the Employment Tribunal a letter which contains the following short paragraph:
"You will note from the IT1 that the Applicant claims that discrimination "has started in March 1998 and has continued to date", that is, to the date of lodgement of the IT1 on 20 October 1998."
That is simply wrong. In fact the 20th October was the date the IT1 was apparently filled in and signed but it was not lodged until 26th November 1998. The letter goes on to apply to amend the IT1 said to be in clarification of the allegation of race discrimination made by the applicant and that then contained the following proposed amendment:
"On 3 July 1998, my union representative lodged an internal grievance on my behalf on relation to the race discrimination suffered by me during the course of my employment. Following my grievance, an investigation report of Mohammed Mehmet, Assistant Direction (School and Student Services) was provided dated 31 July 1998. This report failed to properly address my complaint of race discrimination and consequently the Respondent continues to fail to adequately address my complaints of race discrimination. I believe this a further act of discrimination against me on the basis of my race."
[6]It is noticeable that the latest date referred to in that proposed amendment was 31st July 1998. Had the IT1 been lodged by 20th October 1998, as the letter indicated, then that complaint would have been, prima facie, in time. In fact because the application was not lodged until 26th November 1998 the act complained of in this proposed amendment was itself out of time.[7]It is apparent that this letter was not sent to the London Borough of Camden. The application to amend was apparently considered by a Chairman alone on an ex parte basis and on the basis of the letter of 5th February 1999. A decision was made on 8th February to grant leave to amend in the terms contained within that letter.[8]On 12th February 1999 the tribunal, fully constituted, considered an application by the respondent that Mr Mohammed's application be dismissed as being out of time. It is apparent that to assist at the hearing a document was placed before the tribunal in a similar format to the four page attachment, previously referred to, but carrying the events on from 3rd July 1998 by a whole series of events and complaints running from 9th July 1998 right through to 27th January 1999. In particular, there were a series of incidents and complaints made between 9th July and 17th August 1998; a further series of complaints dated from 26th August to 24th November 1998 and third series of complaints from 12th December 1998 through to 27th January 1999.[9]The Employment Tribunal rehearsed the facts, including the fact that the amendment, sought on 5th February, had been granted. At paragraph 6 of the decision makes strong criticism of the applicant's representatives' management of case including the failure to inform the respondent of the terms of the letter of 5th February 1999. However, the tribunal does not at all address what it is common ground was before them, namely an argument by the respondent as to why there should not be leave to amend the application as per the letter of 5th February 1999.[10]The Employment Tribunal recorded in paragraphs 8 and 9 the respective cases for the applicant and the respondent to the effect that the complaints initially contained in IT1 and in the amendment respectively, on the applicant's case, are in time as forming part of a continuing act. The continuing act was said to be a sustained campaign by the Line Manager which had not ceased by the date of presentation. The contrary argument was that there was nothing but a series of discrete instances each of which fell before the time limit and did not constitute a continuing act which would enable the earlier complaints to have been brought in time.[11]In paragraph 10 the Employment Tribunal come to their conclusions. They found that at the time when Mr Mohammed signed the Originating Application on 20th October, and by the time it was presented on 26th November he was alleging that he was the subject of harassment on racial grounds by his manager on a regular basis exemplified by intermittent individual acts, and that those acts occurred within the period of three months required by the relevant time provisions of the 1976 Act. They further concluded that:
"Those acts were not particularised beyond July 1998 until further alleged examples were submitted at the hearing … We find that those acts now particularised do bring the application within the time limits … within Section 68(1). …"
The tribunal go on to consider s.68 (7)(b), which is the section which enables a continuing act to be complained of as if the date of the act is the latest date even though the earliest manifestations of the continuing act fall outside the time limit. In that respect they find:
"… the basis of the alleged complaint namely repeated acts of harassment which the Respondent alleged failed in the Applicant's view to remedy is capable of being a continuing act and that the application in alleging a continuing act was also presented in time."
On that basis, the tribunal reached the decision, which is the subject of this appeal.[12]In essence the appeal against this decision identifies in skeleton arguments and oral arguments, three discrete issues.[13]The first issue is whether the complaints of specific acts between 26th August and 26th November 1998 are properly to be regarded as part of the Originating Application or extraneous to it. Miss Morgan has, in effect and in our judgment correctly, conceded that they really do amount to no more than a particularisation of the generally worded complaint in the IT1 that the harassment continued throughout the period to the date of the application itself and that the voluntary document provided to the tribunal on 12th February amounts to no more than a particularisation of a complaint which had been made already in the IT1. On that basis, in our judgment, in so far as the decision of the tribunal is that those items were presented within the time limit prescribed by s.68(1), that is not a decision which can in any way be criticised and therefore, that part of the decision must stand.[14]The second issue is the tribunal's implicit decision to reject any application made by the respondent to reopen the question of its having permitted the applicant to amend in the form contained within 5th February 1999 letter. Procedurally that is an extremely unsatisfactory state. First, the proposal to amend was contained in a letter which materially misinforms the person reading it as to whether the event complained of did or did not fall within time. The letter misinforms the reader that it was in time because it states that the application was lodged on 20th October, whereas in fact it was out of time as the application was not lodged until 26th November 1998. Furthermore, the letter was not sent to Camden and therefore they had no possible opportunity to make any written representations, let alone ask that the matter be reserved to a full tribunal at an oral hearing. Thus the individual Chairman who took the decision may well not have been appraised of the fact that the proposed amendment was not simply a routine matter, but a matter in which an allegation was raised which was out of time and which would have to involve a consideration of two arguments; firstly, whether, on its own or in conjunction with the other complaints, the amendment, whether on its own or in conjunction with others, constituted a continuing act so as to be in time; and secondly, whether it would be just and equitable to allow any amendment setting out this complaint to be heard by the tribunal, notwithstanding the fact that it may well have been out of time.[15]It seems to us that Mr Booth wisely has in reality all but conceded that this is a wholly unsatisfactory position and that the decision of the tribunal to permit the amendment, if indeed that is what it decided on 12th February, cannot be allowed to stand. He contends, as indeed Miss Morgan also agreed, that if that is the case then the question of whether this amendment should be allowed has to be considered afresh by a tribunal which would have to consider the question of continuing act and/or just and equitable extension of time as part and parcel of its consideration whether to allow the amendment.[16]For the reasons, which will become clearer in a moment, it seems to us that, in practical terms, that will have to involve the hearing of evidence so that the tribunal can come to a proper conclusion on the continuing act issue. Therefore while, superficially, there is some attraction to the argument of Miss Morgan that it should go to a specific preliminary hearing, in fact, as the evidence on that aspect of the application, namely continuing act, is going to be evidence which in any event will be rehearsed in the main hearing, in our judgment it makes more sense, and certainly seems to be in accordance with the general approach urged upon tribunals by the former President of this tribunal, Morison J and his colleagues in the unreported case of Court v Gloucestershire Royal NHS Trust (EAT/599/98) , that these matters should be dealt with at the merits hearing. Therefore, as far as that is concerned, we direct that the amendment currently in place be overturned and that the applicant should renew his application to amend at the merits hearing of this case.[17]The third issue which arises is what exactly it was that the tribunal decided as to(a) whether the complaints made prior to 26th August 1998 were capable of amounting to a continuing act and(b) whether such a decision was one which was open to them on the facts and in the state of the law?[18]Miss Morgan argues that if one looks at the specific complaints in the light of what is said in the IT1 of there being "a sustained campaign" perpetrated by Mr Jackson, that it is incapable, as a matter of law, of amounting to a continuing act. Both sides have made reference to the case of Owusu v LFCDA [1995] IRLR 574 .[19]It seems to us that this tribunal did not err in law in concluding that, on the material before it, what was complained of was capable of amounting to a continuing act so as to render the matter fit for consideration by the Employment Tribunal. Owusu however, makes it clear that a conclusion at a preliminary hearing that matters complained of are capable of amounting to a continuing act does not, nor can it, constitute a final and binding decision which precludes the respondent seeking by evidence and argument to establish before the tribunal hearing the merits that in fact the acts complained of do not comprise a continuing act. Thus the question which would then arise is whether acts complained of not being continuing acts and so, prima facie, outside the time limit provided for by s.68(1) are, nonetheless, matters which should be considered as actionable or merely as background evidence having regard to the power of the tribunal to extend time on the just and equitable basis.[20]Insofar as it appears that they were deciding finally that all of those matters of complaint were in time and thereby precluding the respondent from raising the kind of argument to which we have just referred, in our judgment that would be an erroneous approach.[21]Mr Booth has, in argument, accepted that he understands all that the tribunal was doing on this occasion was permitting the tribunal considering the merits of the matter to consider these earlier complaints but was by no means closing the door to an argument to be mounted by the respondent that those earlier complaints were, in truth, out of time, as not comprising a continuing act and that it would not be just and equitable to allow those earlier complaints to be brought before the tribunal as actionable complaints under the discretionary power to extend time.[22]Again, in our judgment, we think that that is a wise concession. We believe that probably the tribunal was purporting to decide no more than that, being capable of amounting to a continuing act, the matter could go forward without precluding the countervailing argument for the respondent. But it is perfectly understandable that Camden thought that it was intended to have the effect of ruling out any such argument on their behalf and therefore they were right to challenge it by this appeal. Therefore, on this issue, we do not uphold the appeal but we do direct that the decision that the tribunal has jurisdiction to entertain this complaint does not preclude Camden's argument that those earlier complaints are out of time and, if so, any application that might be made by the applicant that it would be just and equitable in any event to extend time.[23]Within the actions complained of which are contained within the attachment to the IT1 and the subsequent schedule placed before the tribunal, there are a number of complaints which in any event do not involve Mr Jackson. Those, in particular, are the complaints dated 9th and 12th March 1998 neither of which involve Mr Jackson; and the events of 29th June. That complaint, made in respect of the requirement to attend a particular meeting with the Head of Personnel which did not materialise, is not made against or involving Mr Jackson. It seems to us that on any view none of these three matters can be put forward as complaints of a sustained campaign of harassment by Mr Jackson and therefore as each of them does fall outside the time frame starting on 26th August, none of these complaints can be brought in time under the continuing act rubric. Thus, if it is sought to sustain or proceed with those particular complaints, then an application will have to be made at the merits hearing to allow those complaints to proceed on the basis that it would be just and equitable for time to be extended to permit them to do so.[24]Therefore, in summary, as far as the actions complained of prior to 26th August 1998 are concerned, it will be open to the respondent to argue that none of them are in time because they do not comprise a continuing act. In so far as that is a contention which the merits tribunal accedes to it, will then be for Mr Mohammed, if he so wishes, to apply that time should be extended to allow those matters to be heard as complaints on the just and equitable basis. The three separate matters, where no complaint is made of Mr Jackson, can only be heard by this merits tribunal if, at the appropriate stage of its hearing, it concludes that time should be extended to allow those three matters to be heard as on a just and equitable basis.