MR V EDOMI v THE LONDON BOROUGH OF HACKNEY [2000] UKEAT 1002_97_1910

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1002_97_1910Case No Appeal No. EAT/1002/97Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR V EDOMIAPPELLANTTHE LONDON BOROUGH OF HACKNEYRESPONDENT
Before
His Honour Judge Peter Clark Mr J HoughamDate 19 October 2000
[1]APPEARANCES For the Appellant MR C ISHMAEL (of Counsel) Jay Vadher & Co Solicitors Victoria House 185 Romford Road London E15 4JF For the Respondents MR S HEATH (of Counsel) Legal Services Trading Unit London Borough of Hackney 183-187 Stoke Newington High Street London N16 0LH JUDGE PETER CLARK : This is now an old case. The explanation for the delay in finally hearing this appeal will appear from the chronology.[2]The appellant, Mr Edomi, commenced his employment in Local Government with the London Borough of Newham on 26th September 1988. In due course he joined the respondent, the London Borough of Hackney on 3rd May 1994 as a Publicity Officer in the Directorate of Social Services.[3]In the year commencing 1st April 1996 the respondent proposed deleting 17 posts, including that held by the appellant, in order to effect savings of some £350,000. The appellant was informed of the prospective abolition of his post on 5th October 1995. The respondent operated a policy of no compulsory redundancies, but at that meeting he indicated to Mr Strong of personnel that he was not interested in being "shunted or moved down the road into some backwater job". He asked for the figures for voluntary severance. That was followed by a formal request by him for the figures on 18th October. On 28th November the relevant Council Committee took the decision to abolish the post of Publicity Officer. The following day he signed the application form for voluntary redundancy and it was agreed that his last day of service would be 31st December 1995. In fact he ceased work on 12th December 1995 and on 8th January 1996 he commenced work with the London Borough of Greenwich.[4]On 31st January 1996 he wrote to the Chief Executive of Hackney, complaining that he had not received the severance payment to which he was entitled. Hackney took the point that he was not so entitled in circumstances where he joined another Local Authority so soon after leaving Hackney. He attributed this decision to "a continuation of the harassment and unfair treatment" which he had received from certain senior managers at Hackney whom he named.[5]That complaint was finally responded to by the Acting Head of Employee Relations, Lorraine Robinson, by a letter dated 16th October 1996.[6]Meanwhile, the appellant prepared an Originating Application to the then Industrial Tribunal which he signed and dated 28th February 1996. He gave as his dates of employment with Hackney 3rd May 1994 to 31st December 1995; identified as his representative a firm of solicitors, Jay Vadher & Co, and raised the following complaints: unfair dismissal, racial discrimination, determination of last day of employment. Ironically it was Hackney's contention that the employment ended on 10th January 1996; the appellant contested that date; he asserted that it was 31st December 1995.[7]That Originating Application we see was date-stamped as received by the Central Office of Industrial Tribunals (COIT), Bury St Edmunds, 6th April 1996.[8]The matter was listed for preliminary hearing before an Employment Tribunal sitting at Stratford under the chairmanship of Mr G E Heggs on 30th April 1997. The particular issues falling to be determined at that hearing are conveniently set out in a witness statement prepared with the assistance of his solicitors and signed by the appellant on 21st April 1997. They were:
"(a) Whether the commencement of my employment with the Respondents was the 26th September 1988 and whether I had continuing employment with the Respondents. (b) Whether having regard to the time limits contained in Section 68(1) of the Race Relations Act 1976, this Tribunal has jurisdiction to consider my complaint of Racial Discrimination. (c) Whether I am disqualified from the right not to be unfairly dismissed by the provisions of Section 108(1) of the Employment Rights Act 1996 regarding the minimum 2 years for continuous employment."
[9]By a decision with extended reasons promulgated on 8th May 1997 the Heggs tribunal answered those questions in the following way:(a) Although issued with a statement of terms and conditions of employment by Hackney dated 16th March 1994, which recorded that his period of continuous employment began on 26th September 1988 (his first day of service with Newham), confirmed by a letter from Hackney dated 21st August 1996, the tribunal found, for the reasons given at paragraphs 2 to 5 of their extended written reasons, that for statutory purposes the appellant's period of continuous employment with Hackney commenced on 3rd May 1994.(b) His employment with Hackney ended on 31st December 1995. That was the latest date for a continuing act of racial discrimination. His Originating Application was presented to COIT on 6th April 1996, that is outside the primary limitation period of three months under s.68(1) of the 1976 Act. They considered whether it would be just and equitable to extend time, exercising their discretion under s.68(6) of the Act and decided that it would not be for the reasons given at paragraph 12 of their extended reasons.(c) He was disqualified from unfair dismissal protection having completed less than two years service with Hackney for the purposes of s.108(1) of the 1996 Act.[10]Against that decision the appellant appealed to the EAT by a Notice dated 13th June 1997. That appeal came on for preliminary hearing before a division presided over by Morison J on 23rd March 1998.[11]On that occasion the appeal was permitted to proceed to this full hearing on the following grounds:(1) a question was raised, the appellant having completed more than one year's continuous service with Hackney, as to whether he would qualify for unfair dismissal protection in the event that the applicants were successful in the Seymour-Smith case.(2) alternatively, was the appellant entitled to rely on his service with Newham from 1988 to found the tribunal's jurisdiction to hear his unfair dismissal complaint.(3) was the Originating Application presented outside the ordinary three month time limit.(4) alternatively, did the tribunal err in their approach to the exercise of their discretion under s.68(6) of the 1976 Act.[12]The appeal was listed for a full hearing on 8th October 1998. However, on 2nd October, Morison J directed that the matter be stayed pending the outcome of the Seymour-Smith litigation. Their Lordships finally delivered their speeches in that case on 17th February 2000, see [2000] IRLR 263 .[13]Thereafter the appellant's solicitors indicated by a letter of 10th May 2000 that they would not be pursuing grounds(1) and(2) identified above at the preliminary hearing, but wished to pursue grounds(3) and (4). The matter now finally comes before us for determination. The Appeal[14]Having now seen a copy of the Originating Application date-stamped as received by COIT on 6th April 1996, Mr Ishmael no longer pursues the third of the four points identified by Morison J at the preliminary hearing on 23rd March 1998. On the face of it that leaves only the fourth point – the tribunal's exercise of discretion under s.68(6) of the 1976 Act.[15]However, Mr Ishmael now wishes to revive a point identified at paragraph 6(2) of the his Notice of Appeal, namely that the tribunal erred in not accepting jurisdiction to consider a complaint of breach of contract under the Extension of Jurisdiction Order 1994 . We have a number of difficulties in entertaining that submission.[16]First, no breach of contract claim is raised either in the Originating Application or in the appellant's witness statement dated 21st April 1997. Secondly, no application to amend the Originating Application was apparently made below. Thirdly, that point was not permitted to proceed at the preliminary hearing before Morison J. Fourthly, it is not clear what is the basis of such breach of contract claim.[17]It is now well-established that a party will not normally be allowed to raise a point on appeal which was not taken below. See Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 ; Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719 . We are not satisfied that such a claim was before the Employment Tribunal. Accordingly, we shall not allow this point to be taken now.[18]Turning to the final point, Mr Ishmael makes three criticisms of the tribunal's reasoning at paragraph 12 of their reasons:(1) they failed to take into account the respondent's conduct of these proceedings after the Originating Application had been presented. We agree with the tribunal (reasons, paragraph 12(e)) that this was not a relevant factor for the exercise of their discretion under s.68(6).(2) they too readily accepted the respondent's account in finding that the appellant's discrimination claim was weak. In our view on the material before them, both documentary and oral, the tribunal were entitled to form that assessment of the relative merits of the parties' cases.(3) they took into account an irrelevant factor, namely the cost to the respondent and their tax-payers of defending the appellant's claim of race discrimination. We do not think that can be said to be wholly irrelevant. It is material to take into account, as part of the overall picture, that if time is extended the respondent will be put to the expense and inconvenience of defending a claim which the tribunal considered to be weak.[19]In these circumstances we are not persuaded that the tribunal fell into error as a matter of law in exercising their wide discretion under s.68(6) as they did. Their conclusion was a permissible option.[20]Accordingly, and in the these circumstances, we must dismiss this appeal.