MR F OMILAJU v LONDON BOROUGH OF WALTHAM FOREST & OTHERS [1999] UKEAT 986_99_0112

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 986_99_0112Case No Appeal No. EAT/986/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR F OMILAJUAPPELLANTLONDON BOROUGH OF WALTHAM FOREST & OTHERSRESPONDENT
Before
Mr Justice LindsayDate 1 December 1999
[1]APPEARANCES For the Appellant MR F EDWARD JNR (Barrister - Non Practising) Cain and Abel Law Firm 239 Missenden Inville Road London SE17 2HX MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of a full hearing the appeal of Mr F Omilaju in the matter Omilaju against the London Borough of Waltham Forest. Mr Omilaju appears by Mr Edward junior and no one appears for the London Borough of Waltham Forest. There was a hearing at the Employment Tribunal on 27 July 1999. The decision was sent to the parties on 29 July 1999. A good deal of that decision, which is the decision which is appealed against, consists of consideration of directions in a continuing case brought by Mr Omilaju, but the part that we are concerned with relates to his attempt to introduce or re-introduce into that existing continuing case claims that he was victimised by reason of Trade Union activity and by reason of his involvement in Health and Safety issues.[2]The decision of the Tribunal under appeal, that of 29 July 1999, struck out as vexatious the attempt to introduce or re-introduce those issues and it is against that decision that Mr Omilaju, by Mr Edward junior, appeals to us. It is necessary to set out something of the history of the matter.[3]On 26 May 1999 the Employment Tribunal received an IT1 from Mr Omilaju. It claimed racial discrimination, victimisation under Sections 2 and 4 of the Race Relations Act 1976, victimisation on the grounds of Trade Union activities, and victimisation on the grounds of Health and Safety representation and attached to it were some "Particulars of Complaint". Paragraph 6 of those particulars began:
"6. Before these latest acts, I have in the past been treated less favourably and victimised because of Health and Safety and Trade Union activities and because of my race; I set out below those other instances."
[4]There are then particulars given at (i) to (xiv). In circumstances we shall need to return to, the Chairman of the Employment Tribunal required the Tribunal to consider, as a matter of Preliminary Hearing, whether that paragraph 6 should be struck out as frivolous and vexatious and whether it was, in any event, lodged in time. The Preliminary Hearing was on 27 July, as we have said, before a three-person panel, and the decision, which, as we have said, was sent out on 29 July, was unanimous and was:
"… that paragraph 6 of the particulars to the complaint be struck out in its entirety as frivolous and vexatious. The Tribunal gave directions as set out in the reasons to this decision."
[5]On 17 August 1999 the Employment Appeal Tribunal received a Notice of Appeal to which further particulars were added on 31 August 1999.[6]The hearing before the Employment Tribunal with which we are concerned had a quite specific purpose. What paragraph 2 says is this: "2 This hearing has been fixed at the direction of a chairman to consider whether the complaint should be struck out as frivolous and vexatious and whether or not it was presented in time.[7]In fact the Tribunal seemed to fail to consider, so far as we can tell, whether paragraph 6 represented a claim which was out of time, although this seems hardly to have been their fault as the question seems not to have been actually raised. In their paragraph 9 they say:
"9 The submission of the second case is attacked by the respondent principally on two grounds; first it is said that it is an abuse of the process to seek to re-open an issue already decided by this Tribunal, a decision confirmed on appeal and second that it is objectionable in principle that an applicant assert exactly the same facts and matters in support of a new cause of action when that was available to him as at the date of presentation of his first complaint."
[8]So that it seems that the time bar was not actually argued. Thus the Tribunal can hardly be criticised for not dealing with it, even though they do describe it as one of the issues before it. The matter they therefore considered was frivolity and vexation. There does not appear to be any record of a concession as to the time bar point, it is just that it was not pressed and, of course, if the Respondent could succeed on frivolity or vexation, it did not need a second string to its bow, namely the time bar. But to judge the issue of frivolity or vexation one has to go, I am afraid, further back in time.[9]On 28 August 1998 Mr Omilaju presented his first IT1 against Waltham Forest complaining of racial discrimination. The Tribunal in the decision before us, speaking of that earlier complaint, said: "3 … That complaint was based upon an alleged refusal by the respondent to appoint him to a post as Contract Monitoring Officer, an act said to have continuing consequences".[10]On 19 November 1998 Mr Omilaju sought to amend that first IT1. Waltham Forest objected to the amendment that was proposed and the matter was referred to the Chairman of the Tribunal.[11]On 14 December 1998 the Chairman gave his ruling by letter. First of all an Order was made for Further and Better particulars to be supplied by Mr Omilaju by 8 January 1999, and secondly, a claim by amendment, as to victimisation within Sections 2 and 4 of the Race Relations Act was allowed. But the Chairman did not give Mr Omilaju everything he wanted. His letter of 14 December says:
"The Chairman refuses to grant the other amendments requested in the letter of 19 November as they do not comply with the principles set out in Selkent Bus Co v Moore. Should the Applicant wish to proceed with these two additional matters he will have to issue fresh proceedings."
[12]So that the route of amendment was denied to Mr Omilaju and it was suggested that if he wanted to he could apply by using fresh proceedings. That was not to say that fresh proceedings would necessarily be presented in time, or be acceptable, or succeed, but that as amendment did not work in his favour, he could try fresh proceedings. What was then being refused was amendment to allege victimisation on the ground of Trade Union activity and on the ground of Health and Safety representation.[13]The Further and Better Particulars were then supplied, albeit late. As to that the Tribunal said:
"5 Pursuant to the Order of the Tribunal, Mr Omilaju provided further and better particulars of the grounds of his complaint in a document submitted to the Tribunal by letter dated 8 March 1999."
[14]By a Notice of Appeal of 21 December 1998 Mr Omilaju appealed that Chairman's ruling to the Employment Appeal Tribunal and the appeal came on to be heard by His Honour Judge Peter Clark, sitting with two Members, on 23 April 1999. The Employment Appeal Tribunal had in front of it the Further and Better Particulars which Mr Omilaju had supplied and, in the judgment of the Employment Appeal Tribunal which we have, at page 6 of the transcript, it says, under the heading "The Appeal":- "Mr Edward has referred us to further and better particulars of the Originating Application now drafted on behalf of the appellant. They follow the form of order made by the Chairman, except that there are added wholly new particulars relating to the appellant's health and safety and trade union activities during the employment, going back to 1997. Mr Edward submits that since, in the Notice of Appearance the respondents sought further and better particulars of the Originating Application, these particulars should be treated as forming part of form IT1. He further relies upon certain documents listed in a list served by the appellant and dated 3 rd November 1998. We are unable to accept that submission. The request for particulars in the Notice of Appearance relates to the claim of racial discrimination which the respondents unsurprisingly understood this to be. This is an attempt, in our judgment, to raise the new claims of victimisation due to health and safety and trade union activities out of time, in circumstances where they simply are not foreshadowed at all in the form IT1 particulars of complaint, making all allowances for the fact that at that time the appellant was unrepresented. It seems to us that this case falls fairly within the principles set out by Buxton LJ in the Bryant case. We can discern no error of the law on the part of the Chairman in the orders which he made in this case, and accordingly, the appeal must be dismissed."[15]Thus the position was that, by judgment of the Employment Appeal Tribunal, the Trade Union victimisation and the Health and Safety victimisation was to be excluded from the IT1 of 28 August 1998. However, nothing deterred, Mr Omilaju launched a fresh IT1 on 24 May 1999 and that we have. It begins at our page 32. It claims "Racial Discrimination S.1 RRA 1976; victimisation under Sections 2 and 4 of the RRA 1996; victimisation on ground of Trade Union activities and victimisation on ground of Health and Safety representative". That was presented on 24 May. That is Number 32015-97/99. It is accompanied by particulars of complaint and, at paragraph 6, the particulars which are given are exactly the same as the particulars which we have already referred to. Even the number is the same - paragraph 6 - and the sequence 1 to 14 is exactly as it had been before.[16]The Hearing for Directions to cover both the first and the second IT1 was arranged. On 17 June Waltham Forest, in its IT3, responding to the second IT1, objected. They said, of paragraph 6:
"These paragraphs repeat verbatim the Applicant's response to a request for Further and Better Particulars of the Applicant's complaint dated 26 August 1998 filed with the Tribunal on 8 March 1999 pursuant to an Order of the Tribunal dated 14.12.98. The Respondent submits that the alleged acts complained of are out of time."
[17]On 18 June 1999 they made the same point. In a letter to the Employment Tribunal they say:
"It is clear that the present application duplicates matters raised in the first Notice of Application dated 26 August 1998 and also seeks to resurrect matters the subject of appeal to the EAT."
[18]On 27 July, as we started off by mentioning, there was that Directions Hearing at the Employment Tribunal and the decision, as we have said, was sent to the parties on 29 July holding that the attempt to re-introduce the paragraph 6 particulars was frivolous and vexatious. Whether that was vexatious depends on why it had been that earlier it had been refused to allow the amendment. As to that, the Employment Appeal Tribunal's decision on 23 April 1999 plainly had been that the Trade Union and Health and Safety claims were already, even then, out of time, in the sense of already falling foul, so far as concerns the Trade Union activity allegation of Section 147 (1) of the 1992 Act and, so far as concern Health and Safety considerations, of Section 48 (3) of the 1996 Act, subject in each case to an exception should the Tribunal hold itself satisfied that it was not reasonably practicable for the complaint to have been presented within the particular specified period. As to that, it is to be remembered that

Judge Peter Clark said:

"This is an attempt, in our judgment, to raise the new claims of victimisation due to health and safety and trade union activities out of time, in circumstances where they simply are not foreshadowed at all in the form IT1 particulars of complaint, making all allowances for the fact that at that time the appellant was unrepresented."
[19]Two points need to be added. The reasonable practicability of making a complaint that was within time was here quite plain and no case could really be made out for an extension of time within that exception. Moreover, before the Employment Tribunal, Mr Omilaju's representative, Mr Edward, had used (and he has used it again today) a graphic illustration in the course of presenting his case. The Tribunal says:
"10 Mr Edward adopts a graphic analogy in support of his case. He points to the two doors by which persons may be admitted to the hearing room. He accepts that the decision to refuse leave was correctly made but that it amounted to no more than an indication that one door was barred and that, if he was to enter, it must be by the other door. The door barred to him bore the sign 'Amendments', the door open to him the sign 'Fresh complaints'. That above represents a summary only of his careful argument and is adopted as a helpful focus on the immediate issue. Reliance is placed on the letter from the Tribunal dated 14 December 1998 and referred to in paragraph 4 above."
[20]But that analogy is false because it suggests that upon his finding that the door marked "Amendments" was locked, Mr Omilaju could necessarily exit through the door marked "Fresh Complaints". That is not so. The Employment Appeal Tribunal on 23 April 1999 had clearly indicated that what might have seen to be a door marked "Fresh Complaints" was in fact bolted shut against Mr Omilaju. Less graphically, it was held that he was already out of time. It cannot have been otherwise than vexatious, in our view, to have sought to make claims in May 1999 which had been ruled out of time in April 1999. The Tribunal said:
"11 We consider that Mr Edward is seeking to re-open an issue already decided and that is frivolous and vexatious. Accordingly, we strike out the whole of paragraph 6 of the second complaint."
[21]We see no error of law in that. Even if there were error of law in that and even if to repeat paragraph 6 particulars in the way that is sought was not vexatious, the allegations would still be incapable of being considered by the Employment Tribunal at any substantive hearing by reason of being out of time. If they were held out of time in April 1999 by the Employment Appeal Tribunal and with no appeal made against that, then surely they can only have been even more out of time in May 1999.[22]Mr Edward has referred us the case of Aniagwu v London Borough of Hackney [1999] IRLR 303 but it is not a case that establishes a universal principle that it is always right to delay presentation of an IT1 until disciplinary proceedings, however long they might take, are first exhausted. An employee who delays on that score may find that he is out of time in the sense that he has allowed the statutory time limits to expire and finds also that he is held to have been able, within reasonable practicability, to have lodged an application within time. To hold otherwise than that would be almost to repeal the statutory time bar.[23]Doing the best that we can to pay attention to the argument which has been addressed to us and to the Notice of Appeal, we find no error of law in this matter and the appeal must be dismissed.