DR M S FAROOQI v SOUTH WARWICKSHIRE NHS TRUST [2000] UKEAT 1093_99_0504

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 1093_99_0504Case No Appeal No. EAT/1093/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR M S FAROOQIAPPELLANTSOUTH WARWICKSHIRE NHS TRUSTRESPONDENT
Before
Lord Davies of CoityDate 5 April 2000
[1]APPEARANCES For the Appellant MS ANNE HADLEY Solicitor BMA Legal Department For the Respondent MR RAJEER THACKER (of Counsel) Instructed by: Mr R Lewis (Ref - 39088/RL/EN) Messrs Bindman & Partners Solicitors 275 Gray's Inn Road (DX - 37904 KINGS CROSS) London WC1X 8QF MR COMMISSIONER HOWELL QC: This appeal which is before us for a full hearing today is concerned entirely with procedural issues at the Employment Tribunal level. In it Dr Mohammed Saleem Farooqi appeals against the decision of the Employment Tribunal at Birmingham, composed of Mr Ahmed the Chairman sitting with two lay members, given on 8 June 1999 and set out in extended reasons issued to the parties at 28 July 1999, at pages 5-9 of the Appeal file before us. In it the Tribunal declined to allow Dr Farooqi, in the course of proceedings he had begun by originating application on 22 July 1998, to pursue a large number of additional allegations which he had been seeking to introduce into the proceedings against his employers the South Warwickshire NHS Trust.[2]The background to the proceedings was shortly as follows; Dr Farooqi is an Orthopaedic Surgeon who was in the employment of the Respondents at all material times. The originating application was precipitated by a dispute between him; his employers and the Consultant in charge of his department over whether he should treat patients at Friday afternoon operating sessions, which were regularly arranged in the hospital where he worked. It is common ground that Dr Farooqi had, for some time, carried out these Friday afternoon sessions as he had been required to do, but following his promotion to the grade of Associate Specialist on 1 April 1998, he took the view that he no longer was or should be required to do these sessions, and without the agreement of the Consultant in charge of the department unilaterally gave instructions that his sessions on Friday afternoons were to be cancelled, with the result that his patients were left untreated.[3]Matters came to a head on 22 April 1998 when he was instructed to take the Friday afternoon session and refused. Disciplinary proceedings and attempts to resolve the dispute, ensued; and on 15 May 1998, his British Medical Association Representative raised apparently for the first time the fact that he is of the Muslim faith and required to attend Juma prayers for a short period at about 2pm on Friday afternoons, and that the operating sessions which had been arranged for him prevented his doing so. The Respondent's answer before the Tribunal, alleges that attempts were made to retime his operating sessions so that they began at 3pm and would give him an opportunity to attend the prayer sessions, but this was apparently unsatisfactory to him and he continued to refuse to perform the Friday afternoon operating sessions at all.[4]The originating application which was presented on 22 July 1998 and is at pages 10-12 of our appeal file was presented by Dr Farooqi himself, although it is common ground and we have been informed that he did have the benefit of legal advice from solicitors at that stage, as well of course, as assistance, representation and advice from the British Medical Association being available to him. The originating application is in very short terms and asserts simply that: - 1."On 21 April 1998, I was directed to work which I was not contractually obliged to do. I refused to do the work. That refusal has lead to the instigation of disciplinary proceedings against me. 2."My employer is discriminating against me because of my race. 3."I will provide further details of this later."[5]It is notable that the allegation of discrimination is of a current act of discrimination on the grounds of race, and no clue is given as to the nature of the alleged discrimination beyond the paragraph which opens the statement attached to the originating application, referring to the dispute over whether he should be required to work on what we now know were the Friday afternoon operating sessions he had carried out before his promotion. The procedural history of the application after that, so far as material, was explained simply and for the present purpose entirely adequately by his Honour Judge Peter Clark in the judgment given on the preliminary hearing of this appeal on 1 December 1999. We have that in the appeal file before us at pages 4d-4g and so far as material, we can summarise the procedural history from what Judge Clark there said. As he noted: - 2. "Having been served with the originating application the Respondent's solicitors served a detailed request for further information dated 13 August 1998. The Appellant by then was represented by the British Medical Association and to that request those advisors responded on 9 September 1998. In that document they raised a number of matters which predated 21 April 1998. By a letter of 28 October 1998 the Respondent's solicitors pointed out that in his further pleadings the Appellant seemed to be adding further grounds of complaint which were time barred. They also submitted that the original complaint arising on 21 April 1998 was also time barred." 3. "The matter came before a Chairman Mr Ahmed sitting alone in Birmingham on 2 November 1998. By a decision with extended reasons dated 25 November 1998 that Chairman held that the originating application was not out of time and granted the Appellant leave to amend his originating application within 14 days, and the consequential amend to the Notice of Appearance. In his extended reasons he explained that the complaint arising on 21 April 1998 ought to be allowed to proceed but nothing is there said about the other matters of complaint raised in the further information which pre-dates the 21 April." 4. "There then followed correspondence between the parties and the Employment Tribunal including an application by the Respondents solicitors for a review hearing to take place. That application was contained in a letter of 8 December 1998."[6]As Judge Clark commented the application for what was expressed to be "a review" may have been based on a misconception as to the proper procedure in such cases. But at all events what was described as "a review hearing" did take place before a full tribunal, chaired by Mr Ahmed on 8 June 1999, and it is the decision given on that date which is now before us on appeal. By that decision the Tribunal varied the original Chairman's order and purported to hold that all complaints of race discrimination prior to 23 April 1998 were out of time and were expressed to be "dismissed", save for the complaints about Friday afternoon working which, together with complaints or on after 23 April 1998, were permitted to proceed.[7]It was further directed that any subsequent complaints were to be the subject of a fresh application and as noted by Judge Clark and confirmed to us a fresh originating application, covering partly the same ground as the one subject to the appeal before us and partly additional grounds, was presented to the Employment Tribunal on 30 June 1999. That application has apparently been stayed pending the outcome of this present appeal. Judge Clark, in directing that there should be a full hearing of the substantive appeal on whether the tribunal were right in the procedural directions they gave on 8 June 1999, commented that there were some difficulties with the case, in particular because leave had been given to amend the originating application but without any specific amendment being before the Chairman at the time that leave was given; but in any event, no amended originating application had been filed beyond the correction of one date 21April 1988 to 22 April 1988 which was done by letter dated 4 December 1998 from Dr Farooqi's representative to the Chairman of the Tribunal, a copy of that letter being at page 72 of the appeal file before us. That is the only purported amendment to the originating application, which has ever been made. Nevertheless as recorded by Judge Clark a document dated 5 November 1998 described as "Applicant's additional information to the Respondent's request for further particulars" set out a number of allegations of discriminatory acts which preceded 21 April 1998.[8]In those circumstances was described, as the "review hearing" was, in fact and in substance, a reconsideration of what had been within the scope of the Chairman's order granting the applicant permission to amend the originating application. As Judge Clark commented at the preliminary hearing stage, that was not technically a "reviewable" decision because the power to conduct what is strictly referred to as a review in Rule 11 of s.1 to the Employment Tribunals Procedure Regulations 1993 s1. No 2687 is confined to "decisions", which bears a specifically restricted meaning by reg. 2 (2) of the regulations themselves so as to exclude any interlocutory order, which of course the original Chairman's determination of 2 November 1998 had been.[9]Nevertheless, as His Honour Judge Clark commented in the judgment on the preliminary hearing, it is quite clear that the substantive point to be considered is whether what was described as the "review hearing", the Tribunal erred in law in refusing leave to the appellant to amend his originating application so as to plead additional complaints pre-dating 21 April 1998, over and above complaints relating to Friday afternoon working, on the grounds that such additional complaints reveal a "discriminatory practice or policy" of the Respondents constituting an act extending over a period. That substantive point was a perfectly proper matter for the full Tribunal sitting on 8 June 1999 to consider because it is beyond dispute that any order of an interlocutory nature given in the course of Tribunal proceedings may be revisited by the Employment Tribunal or a Chairman in the course of regulating their own procedure at any stage, even though it is not a matter for a formal application for what is described as a "review" on the restricted grounds set out in regulation 11.[10]The two decisions on the procedure to which we have already referred are in our appeal file. The first was by Mr Ahmed the Chairman sitting alone on 2 November 1998 at pages 61-62 where he directed that the originating application referring to the original grounds of complaint was not out of time we have already summarised, he purported to grant leave to amend the originating application, within a 14 day time limit (which was not adhered to) and dismissed an application by the Respondent to strike out the proceedings as vexatious. No issue on that part of his decision is taken before us.[11]The decision of 8 June 1999 is at pages 5-9 of the appeal file for present purposes it is sufficient to refer to the substance of the decision on page 5 which was in the following terms:
"….upon further hearing of the matter the decision…. dated 2 November 1998 was varies as follows: - a) "
All complaints of race discrimination prior to 23 April 1998 are out of time and are dismissed. The applicant's complaints of race discrimination relating to Friday afternoon working are in time and any allegation relating to Friday afternoon working (whether or not the actual complaint relates to a date prior to 22 April 1998) is in time together with any other incidents from 23 April 1998 to 22 July 1998. Any subsequent complaints must be subject of a fresh application. b) Paragraphs (3) and (4) of the Decision of 2 November 1998 do stand and are confirmed."[12]It is common ground before us that what the Tribunal was there doing was not strictly "dismissing" complaints of race discrimination relating to matters prior to 23 April 1998 at all. As will be seen, it was the view of the Tribunal that such complaints were not properly before them on the existing Originating Application at all. Consequently, as is not disputed by Mr Thacker who appeared on behalf of the Respondents before us, the limit of what the Tribunal were deciding was that the complaints were unrelated to the Friday afternoon working dispute were dismissed so far as there was any attempt before the Tribunal to introduce them as additional issues in the present application before the Tribunal on 8 June 1999; that being the application started by the Appellant's Originating Application submitted on 22 July 1998. Insofar as further complaints unrelated to Friday afternoon working were the subject of some separate application, it would be a matter to be to be determined on that separate application, whether they should be admitted to be heard and/or dismissed as separate free-standing complaints, but that was not a matter before the Tribunal hearing this application on 8 June 1999. Paragraphs 9 – 13 of the Tribunal's extended reasons explained their decision in the following terms, starting with a reference to the main decision of 2 November 1998 that the "Friday afternoon" issues could proceed:- 9. "We see no reason to alter that particular decision and indeed the respondent does not now invite us to do so. That is not where the main controversy lies. The controversy is in the order granting the applicant leave to amend its Originating Application under paragraph 2 of the decision of 2 November 1998. What the Chairman envisaged at the time the order was made was that the applicant would put some more flesh on the bones of his very brief IT1. He had promised to do so in his Origination Application. However, he had never actually fulfilled that promise and the intention of the tribunal was to allow him to do so. 10. "As it transpired, the applicant did not file any amended Origination Application. Instead he served a lengthy response to a request for written answers, making complaints going as far back as 1992. Not surprisingly, the respondents felt that this was a "backdoor" attempt to introduce complaints that would otherwise be well out of time. In correspondence between the parties and the tribunal, it was directed by letter of 9 December 1998 that any issue relating to amendment be dealt with at the commencement of the full hearing. Mr Patterson argued for the respondent at the review hearing that this should be dealt with earlier to save time and costs, Ms Miller for the applicant questions whether there would be any saving in time or costs, because the witnesses for the preliminary hearing would also be the same witnesses for the full hearing. Ms Miller does not accept that these amendments are in addition to the Friday afternoon complaint but are part of a pattern of continuing discrimination, with the final act culminating in the disciplinary procedure. 11. "In arriving at our decision, we have taken into consideration, the guidelines given by the EAT in Selkent Bus company –v- Moore [1996] ICR 836 . We have considered the nature and content of the proposed amendment and intention behind the Order granting leave to the applicant to amend his IT1 on 2 November 1998. 12. "It seems to us that what the applicant is now attempt to do through the use of answers in the Replies to Requests for Further and Better Particulars is to bring in matters which would are otherwise considerably out of time. There is no connection it seems to us between these 'old' complaints and the Friday afternoon complaint. They are quite separate standalone complaints which should have been the subject of an application to a tribunal within normal time limits during the relevant periods. The Friday afternoon complaint is a separate and identifiable complaint which, although appears to have started before April 1998, was the subject of the disciplinary investigation which has yet to be concluded. The tribunal in allowing the applicant leave to amend it's Originating Application wanted more details of the Friday afternoon complaint and that was the purpose and intention. The respondents were justified in feeling that the purpose of that Order was being used as a back door attempt to revive out of time complaints. 13. "In the judgement of this tribunal, it is not just and equitable to extend time to allow the applicant to bring complaints prior to April 1998 in this application. To do so would cause considerable hardship to the respondent in having to investigate matters going back six years in some cases. We feel that the fairest course is for all complaints prior to 23 April 1998 to be dismissed. We have seen in the documentation some reference to complaints of working Friday afternoon in 1997 and insofar as those matters are concerned, they are not out of time because that is an ongoing issue. The applicant will therefore be able to raise, at the main hearing, complaints relating to Friday afternoons working even if they pre-date 23 April 1998. Equally the applicant is entitled to raise matters of complaint from 23 April 1998 to 22 July 1998 (the date the Originating Applicant was received) so long as they are fully particularised in witness statements prior to the full hearing. Any other complaints beyond those parameters will need to be the subject of a fresh application, if necessary." 13. The initial complaints and the material to which the Tribunal were referring were in a document dated 9 September 1998 at pages 21 – 24 of our appeal file. The particular complaints the appellant sought to have added to the race relations and victimisation proceedings started on 22 July 1998 by reference to what had happened on 21 or 22 April, were identified under 14 separate headings in paragraph (3) at pages 22 – 24. Looking at those it is hard to see any immediate connection between many of them and the alleged discrimination comprised in requiring Dr Farooqi to work from the Friday afternoon operating shifts after his promotion as he had done before. They consisted of a number of complaints, many without any dates at all, described as "incidents" including denial of a salary advance or bridging loan on his first joining the Trust, miscalculation of his past annual leave entitlement, failure to provide him with a substantive contract of employment when he was first appointed to staff grade within the time scale he wished, alleged "implications", which he understood to have been made against him relating to whether he should work Christmas and Easter Bank Holidays, failure to place him on the maximum salary scale for an Associate Specialist thereby causing what was alleged to be financial loss, and so forth.[14]Having looked at them all, we consider the Tribunal's decision as recorded in the paragraphs we have already quoted that there was no apparent connection between those additional complaints and the Friday afternoon complaint, so far as the particularised allegations went to be wholly justified. That really seems to us the be-all and end-all of this appeal; since it being a procedural matter, it is only for us to interfere with the determination of a Tribunal as to the proper conduct of the proceedings before it, if it can be seen that the Tribunal erred in some way in law in the decision they took, or misdirected themselves as to the way in which the issues before them should be approached. Before us Ms Hadley who appeared on behalf of the Appellant, and for whose skeleton arguments together, with those of Mr Thacker for the Respondent, we are grateful, sought to attack the Tribunal's decision on three main grounds. In the first place she said that because the decision purported to carry out a "review" of the Chairman's earlier procedural decision on 2 November 1998, it was without jurisdiction because this was not a proper matter that is strictly described as a "review" under Regulation 11 of the Tribunals' Procedure Regulations. Consequently, she said that the Tribunal had misconceived the whole nature of the proceedings before them, and that invalidated their deliberations and their decision and made it necessary for the whole thing to be set aside.[15]We do not agree, for the reasons already given by His Honour Judge Clark in the course of the judgment on preliminary hearing where as he noted the substance of what the Tribunal were doing was carrying out a perfectly proper procedural reconsideration of the proper scope of the earlier leave which had been granted to amend the Originating Application, and attempting to carry out a thoroughly needed clarification of the real issues of fact of law which would be before the Tribunal on the full hearing of the application. Mr Thacker has drawn our attention to the authority of Kuttapan –v- The London Borough of Croydon [1999] IRLR 349, which appears to us to confirm that the jurisdiction to revisit, or reconsider, the substance of what had been decided on the earlier hearing in November 1998 plainly existed, in the course of the Tribunal's general jurisdiction to regulate its own procedure, and there was no inpropriety in their having dealt with the substance of the matter. We would add our own view that it would be completly wrong to allow matters of form, particularly on procedural issues to eclipse the substance of what was really being decided even if the wrong label was applied to what the Tribunal were really doing on 8 June 1999. Accordingly we can find no error of law in the Tribunal having approached the question and dealt with the substance on whether the scope of the application before them should be widened in the way Dr Farooqi and his advisers were patently attempting to do.[16]The second ground on which Ms Hadley sought to attack the Tribunal's decision as erroneous was in the conclusion they drew that what they referred to as the separate complaints were outside the proper scope of anything which could be described as one continuing course of practice of racial discrimination, so as to fall within the terms of Section 68 (7) Race Relations Act 1976 and render for them within the proper scope of an application commenced on 22 July 1998. It is to be recalled that under Section 68 an Employment Tribunal is directed that it shall not consider a complaint of Racial Discrimination unless it is presented to the Employment Tribunal before the end of the period of three months beginning when the act complained of was done; and the only relevant jurisdiction to extend that short time limit is that under Section 68 (6) the Tribunal may consider the complaint out of time if in all the circumstances of the case it considers it just and equitable to do so.[17]However, It is provided by sub section 7 (b) that for the purpose of this Section an act extending over a period shall be treated as done at the end of that period. Consequently, what Dr Farooqi hoped to establish to the satisfaction of the Tribunal to get within this head was that the previous complaints which he sought to introduce were a integral part of an "act" extending over a period and culminating in the act of alleged discrimination on 21 or 22 April 1998, on the basis of which he had finally brought his application to the Tribunal.[18]For this purpose it is also relevant to a remember that a complaint may only be brought to a Employment Tribunal in respect of an act of discrimination, if that act is one of the prohibited acts referred to; in for example Section 4 (2) in relation to the employment field in the terms of employment offered, the affording of access or opportunity to promotion, or benefits or other facilities or services, or by dismissal or (and this is the one on which Miss Hadley had to found) "…. Subjecting him to any other detriment." Her argument was that the long catalogue of alleged injustices or slights, or acts of discrimination, which Dr Farooqi sought to introduce was one continuing piece of discriminatory practice, which ought to be regarded for this purpose as one continuing act right down to 22 April 1998 so to bring it within the three month time limit before the lodging of the application. She drew our attention to what was said by Mummery LJ then the President of this Tribunal, in Owusu v London Fire and Civil Defence Authority [1995] IRLR 574 at paragraph 21 on page 576, in the context of a dispute over whether the continuing failure to re-grade the complainant amounted to a "continuing act", as follows:
"The position is that an act does not extend over a period simply because the doing of the act has continuing consequences. A specific decision not to upgrade may be a specific act with continuing consequences. The continuing consequences do not make it a continuing act. On the other hand, an act does extend over a period of time if it takes the form of some policy, rule or practice, in accordance with which decisions are taken from time to time. What is continuing is alleged in this case to be a practice, which resulted in consistent decisions discriminatory of Mr Owusu. It would be a matter of evidence for the Tribunal as to whether such a practice as is alleged in fact exists."
[19]It must in our judgment be a question depending on the facts of the particular case and the context in which the allegations arise, and in particular the context of the provisions of s.4 and 68 (7) which we have just outlined, whether complaints sought to be added in as part of a "continuing act" do or do not meet the test as explained by Lord Mummery J for the purposes of s.68 (7) or not. It is clear in our judgment that as we have already said the Tribunal reached the correct conclusion on the facts of this case, and we do not think any reasonable Tribunal, faced with the diffuse list on pages 22-24 of the appeal file presented to this Tribunal, could have reached any other conclusion than this Tribunal did. There is no arguable ground for saying that those matters form part of an ongoing act, continuing down to 22 April 1998 for the purposes of s.68 (7). They appear to us, as the Tribunal quite rightly said to be separate stand-alone complaints, which should have been the subject of an application to a Tribunal within the normal time limits during the relevant prescribed period if they were to be pursued.[20]That leaves the third ground of Miss Hadley's argument, which she sought to introduce by way of an amendment this morning to the Notice of Appeal which, after hearing Mr Thacker, we allowed. This ground was that the Tribunal had erred in the way they had exercised their discretion under s.68 (6) (or rather failed to exercise that discretion) to admit these additional complaints in the present application, even though they might be out of time and not able to be viewed as part of a continuing act, involving the complaint he had originally made. Our attention was drawn to what was said in Selkent Bus Company Limited v Moore [1996] ICR 836 at pages 842 again by Mummery LJ, about the proper approach to be taken by a Tribunal to applications to amend existing proceedings to bring additional allegations when those allegations, if brought by themselves would be out of time for the launching of separate proceedings. As Mummery LJ there reminds Tribunals, the discretion to grant leave for such amendments is a judicial discretion to be exercised in the normal judicial manner; and relevant circumstances include the nature of the proposed amendment and in particular, the consequences for both sides of allowing the amendment or refusing it as the case may be. As he says at paragraph 4 on page 843 F:
"Whenever the discretion to grant an amendment is invoked, the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment, against the injustice and hardship of refusing it."
[21]Miss Hadley pointed out that the Tribunal had expressly referred in paragraph 13 of their decision only to the considerable hardship to the Respondent in having to investigate matters going back six years in some cases, and had not made any overt reference to what she said was the injustice and hardship to the appellant Dr Farooqi in not being able to pursue his additional complaints by this means. In our judgment, that does not provide any ground for saying that the Tribunal erred in law in rejecting the introduction of these additional matters, in the way that had been sought in the circumstances. There is no indication that any ground had been put forward to justify the introduction of these additional grounds under s.98 (b) of the 1976 Act, so as to show why it would be just and equitable for them to be introduced outside the normal time limit, when there was nothing to show why Dr Farooqi, (who is of course a professional person and had access to legal advice and help from the British Medical Association as it is clear from the papers before us), should not have taken steps to bring complaints before the Tribunal about these matters at any time over the previous six years, if he had wished to.[22]In those circumstances, we consider there is no ground for inferring, as Miss Hadley would have us do, that the Tribunal misdirected themselves or lost sight of the guidelines given in Selkent Bus Company Limited v Moore [1996] ICR 836 to which they had made express reference on the same page just above the paragraph to which she referred, in determining whether the judicial discretion should be exercised in Dr Farooqi's favour or not. As Mr Thacker submitted there was really no ground for supposing that they might have overlooked the question of whether Dr Farooqi would suffer as a result of not being able to introduce these extra complaints indeed, the fact that if he was not allowed to pursue these extra complaints: he might be at a disadvantage in dealing or negotiating with the Health Trust, was too obvious to need stating. In our judgment it was no error on the part of the Tribunal in the circumstances of the application before them not to have referred to such an obvious potential disadvantage specifically.[23]We therefore dismiss the appeal against the Tribunal's procedural decision of 8 June 1999. The consequence is that the case will now go back to the Tribunal for a (long overdue) full hearing on the merits, on the basis of that decision. In accordance with the express terms of paragraph (a) of that decision on page 5 of our appeal file, the issues at the full hearing are to be confined to the issues as identified by the Tribunal there, namely the applicant's complaints of race discrimination relating to Friday afternoon working and any allegation relating to Friday afternoon working, whether or not the actual complaint relates to a date prior to 22 April 1998, together with any other incidents from 23 April 1998 to 22 July 1998, that are properly particularised and put before the Tribunal in witness statements or otherwise. Any other issues are outside the scope of the full hearing, as directed by the Tribunal in that decision which we unanimously confirm.