MISS SAUDA QUASHIE v THE LONDON BOROUGH OF GREENWICH [2000] UKEAT 1242_98_1511

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1242_98_1511Case No Appeal No. EAT/1242/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS SAUDA QUASHIEAPPELLANTTHE LONDON BOROUGH OF GREENWICHRESPONDENT
Before
Mr Justice Bell Mr H Singh Mr T C ThomasDate 15 November 2000
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondents MR TIM KENWARD (of Counsel) Messrs Wadesons Solicitors Southbank House Black Prince Road London SE1 7SJ MR JUSTICE BELL : This is an appeal by Miss Sauda Quashie against the majority decision of the Industrial Tribunal, as it then was, held at London (South) over ten days in April, October and November 1997, and followed by deliberations in Chambers on three days in March and June 1998, leading to the actual decision with extended reason entered in the Register and sent to the parties on 14th August 1998. The decision was that Miss Quashie's claim of unfair dismissal and her claim of victimisation were both unsuccessful. The application of Miss V Sandy, a fellow employee of the appellant, was heard at the same time and was also decided to be unsuccessful. The appellant represented herself throughout the tribunal proceedings, and she has represented herself on this appeal. Application for Adjournment Before proceeding further it is necessary to explain that Miss Quashie has applied to have the appeal adjourned and not heard today. On 7th November 2000 she wrote a letter to the Registrar saying that she had been given insufficient notice of the appeal hearing date. She needed time to remind herself of all the evidence which was adduced before the tribunal and she had not had time to prepare a skeleton argument which would be an integral part of the appeal hearing and would form the basis of her appeal. That letter was put before me on Monday, 13th November, and I directed that Miss Quashie be told that the appeal should not be taken out of the list for today. I took the view on the information then available that Miss Quashie was well acquainted with the issues in the appeal, having prepared skeleton arguments in February 1999 and September 1999, for preliminary hearings before this tribunal, differently constituted, and that she had had sufficient time to prepare for today's hearing, including the preparation of a further skeleton argument if she chose to provide one. We were informed by Miss Quashie this morning that she received notice of the hearing on 27th October 2000. We accept that that was the first indication of the today's date. It appears that a letter may have been sent considerably earlier than that, but there are postal difficulties in the area where Miss Quashie lives. Having been informed of my decision, Miss Quashie informed the court around midday yesterday that it would be detrimental to her health if she attended the tribunal today. She was told by a court associate that if she was unfit to attend she should obtain a note from her doctor to that effect. She said that she had been unable to get an appointment with her general practitioner, but she has provided today a note from her general practitioner dated the 14th November which reads as follows:
"The above consulted me today in an extremely distressed manner feeling that the short notice she received for the tribunal hearing was inadequate for her to present her case satisfactorily. I believe that there may have been difficulties with the post and she did not receive notification when this was originally sent in June through no fault of her own or that of yourselves. She has manifestations of an acute stress reaction and I would support her wish for the tribunal to be postponed despite this being at very short notice."
The letter of 7th November made no reference to ill health, but it is clear from the papers and indeed from the tribunal decision under appeal that the appellant does from time to time suffer from indifferent health, particularly when under strain and particularly when formal court or tribunal decisions are made against her wishes. However the doctor's note which we have just quoted refers only to "acute stress reaction", which is a very imprecise term and it certainly does not say that Miss Quashie is unfit to attend and conduct the appeal. In fact Miss Quashie did attend promptly this morning. She told us that she would like the appeal adjourned as she has not had time to prepare for the hearing and she has suffered a lot of tension as a result. She said that she was very angry that she had had to come today. She thought that the fact that she was instructed, as she put it, to come here today was really insensitive. She told us a little of the history of the information she had received as to when the appeal would be heard, concluding with the comment that as she had not been given a date this year she was under the impression that the appeal would not be heard this year. Miss Quashie expressed herself very clearly in stating the matters which we have outlined and we formed the impression that she was fit to conduct her appeal if she chose to. We saw no reason to change the view which I had formed on Monday that she should be sufficiently prepared to conduct her appeal because of the documents which she had drafted, perhaps with help, in the past and her familiarity with the case and issues. Justice and fairness involve consideration of the interests of both parties to any appeal. It is a considerable time since the decision of the tribunal, now some 2½ years ago. If the appeal went off today the respondents' costs would not be recoverable. The nature of Miss Quashie's challenge to the tribunal's decision is absolutely clear from the material before us. We therefore decided that the appeal should go ahead today. Miss Quashie said that she was not prepared and not ready to put her side of the matter and was not prepared to go ahead today. So we invited Mr Kenward for the respondent to make his submissions. Shortly after he started to do so Miss Quashie left the tribunal room but she returned not long afterwards in time to hear the bulk of Mr Kenward's submissions. When he finished his submissions we asked Miss Quashie if she wanted to say anything and she did address us very clearly for about five minutes or so and answered the questions of one of the members of this tribunal. In the light of the way she was able to put matters then, we have no grounds to reconsider our original decision to proceed with the appeal today and we now, having heard the argument, proceed with our judgment. The Industrial Tribunal The appellant, who is black, was at all material times employed by the respondent Council working for its Directorate of Social Services. On 30th August 1995 she presented an Originating Application (case number 50585/95) against the respondent complaining that she had been discriminated against contrary to the Race Relations Act 1976 . In Box 1 of her application said that her complaint was "Whether I have been discriminated against contrary to the 1976 Race Relations Act. My claim is based on direct/indirect discrimination, harassment, abuse and victimisation." That application was struck out by order of a Chairman of the Industrial Tribunal which was entered and sent on 15th February 1996. We were informed by Mr Kenward that it was struck out for failure to supply particulars under Rule 4(7) in Schedule 1 to the Employment Tribunals (Constitution etc) Regulations 1993 . Paragraph (7) provides that a tribunal shall not strike out an originating application unless the tribunal has sent notice to the party who has not complied with a requirement, in this case for further particulars, giving her an opportunity to show cause why the tribunal should not do so.[2]About a week after that decision the appellant received formal notice of her dismissal by the respondent, allegedly on the grounds of redundancy, to take effect on 24th March 1996.[3]On 21st June 1996 the appellant presented an Originating Application claiming unfair dismissal and victimisation on grounds of race against the respondent (case number 38390/96). The grounds can be summarised as giving a history of the appellant having made complaints of racial harassment, alleging that her dismissal was unfair and further alleging that the dismissal was an act of victimisation perpetrated because of protected acts on the part of the appellant, namely her various complaints and allegations of unlawful discrimination and harassment including the earlier tribunal application.[4]It is the tribunal's decision dismissing both limbs of that second application which is challenged on this appeal. Ms Sandy's unsuccessful application claimed unfair dismissal alone.[5]The extended reasons for the tribunal's decision run for 24 closely word-processed pages, 98 paragraphs in all, of which 85 set out the history, a summary of the opposing cases and the views of the majority of the tribunal, and 13 paragraphs express the minority member's view, the decision being two for the dismissal of the appellant's application and one in favour of it.[6]Since the essence of the appeal is the contention that the majority of the tribunal wrongly limited the scope of its factual enquiry, it is necessary to relate or to summarise a number of paragraphs of the extended reasons which are particularly relevant.[7]I will give the paragraph numbers as we refer to them to appear in parenthesis of reach reference: [ Paragraph 7 ] The result of the striking out and withdrawal of previous proceedings issued by each Applicant presented the tribunal with a difficult task in firstly deciding what evidence should properly be heard at all during the course of its proceedings in relation to the extent claims made by each Applicant, and secondly, at the end of the day what evidence the tribunal was entitled to rely upon when reaching its conclusions. [ Paragraph 9 ] The tribunal recorded that during the course of the cross-examination of a Mrs Duncan-Brown by the appellant some of the evidential/legal questions as to the extent to which the Applicants should be entitled to refer to matters of evidence going back many months, if not over a year, before the date of dismissal began to arise. The matter was discussed with the Applicants and the Respondent's counsel and the Chairman ruled that the appellant would be entitled to make some references to historical matters as "background" to her claim of victimisation. [ Paragraph 10 ] Thereafter during the course of the proceedings the appellant gave a considerable quantity of oral evidence and referred the tribunal to a considerable number of the contemporaneous documents in relation to a number of controversial issues going back to the late summer/autumn 1994. From time to time the Chairman intervened both in the presentation of her evidence and cross-examination of witnesses in an attempt to confine the evidence. It was very difficult however for the tribunal sometimes to confine "background evidence" within reasonable bounds, particularly when, as in this case both applicants felt very strongly about a whole variety of matters taking place from October 1994 and throughout the whole of 1995 leading up to and including the presentation of the various Originating Applications. [ Paragraph 12 ] In the result during the course of the 10 day hearing the tribunal heard a considerable quantity of evidence covering the entire period. The extended reasons then went on to deal with findings of fact. [ Paragraph 13 ] All the witnesses before the Tribunal worked for the Directorate of Social Services of the Respondent borough. In July 1994 a unit was set up to run the Sponsorship Scheme. The decision was taken by a Ms Dainton. The staff of the Sponsorship unit originally comprised the two Applicants. Ms Quashie and Ms Sandy who were working under the title of "Day Care Advisers". A Mr Vaudrey took over the senior line management for that Sponsorship unit on 1 August 1994 at which time there was still a more senior post to be filled. The senior post of Early Years Day Care Adviser was not filled by the appointee, Gillian Blake until 17 October 1994. Between August and October it would appear that Dawn Luff was in some way a temporary line manager. [ Paragraph 14 ] The principal function of the two Applicants' roles as Day Care Advisers was to organise the placing of children with special needs for day care with appropriate child minds and registered nurseries. This involved the visiting of the family, an assessment of the need of the children, the organising of the appropriate help, the completion of the appropriate paperwork and dissemination to relevant departments, and related reviewing and monitoring duties. [ Paragraph 15 ] By the time that Gillian Blake took over as Senior Day Care Adviser in October 1994 there had already been some difficulties between the two Applicants and other members of the Respondent's management, in particular Ms Luff, Miss Merion and Mr Vaudrey. Both Applicants both orally and in writing submitted a number of complaints over that period about a variety of problems and difficulties which they claimed they were suffering at work. [ Paragraph 16 ] In purported response to the complaints and arguments being put forward by the Applicants a management investigation panel was appointed in April 1995 to investigate the matters raised by the Applicants. The reasons then went on to describe various problems with the panel and its investigations. [ Paragraph 19 ] Although initially the majority members were reluctant to be obliged to read yet further quantities of documentation which did not appear to be closely relevant to the issues of the deletion of the Applicants' post and their subsequent dismissals for redundancy, in the end the Tribunal, at the Applicants' request, read through the report of the investigation and points were made by the Applicants about the contents of the report. [ Paragraph 20 ] The majority members declined to reach any findings of facts about the whole variety of episodes and incidents about which both Applicants were plainly concerned in 1994; problems in relation to the appellant's late return from leave at Christmas 1994; problems leading to an informal oral warning of Ms Sandy within a very short time of her departure on pre-notified maternity leave on 10 February 1995; and all the other problems which the Applicants raised in their correspondence with management up to May 1995. The majority members did not consider that resolution of the rights and wrongs of those issues was necessary or relevant to the questions of unfair dismissal and victimisation to be decided. [ Paragraph 21 ] What is however beyond argument is that each Applicant was complaining of inter alia racist attitudes by members of management. What is also clear is that management was contending in the case of the appellant that there were certain problems about her own conduct and (in relation to one member of staff) her approach to racial matters. [ Paragraph 22 ] The majority members declined to reach conclusions other than the general obvious conclusions thus stated, simply because the tribunal was not dealing with a case of constructive dismissal; the tribunal was not dealing with cases of dismissal for misconduct and the tribunal was not dealing with cases of race discrimination. The appellant had made a claim of victimisation. It was not accepted that presenting such a claim of victimisation in June 1996 entitled the appellant to rely on all the matters leading up to her claim of 30th August 1995 which had been struck out in February 1996. [ Paragraph 23 ] The appellant in her written submissions argued that her claim of victimisation was a "continuing" act within the meaning of section 68(7) of the Race Relations Act 1976 . Paragraph 24 was headed "Temporary devolution of Sponsorship Scheme and read as follows:
"Turning to what the majority members find to be the central issues of fact in the case there follows a birds eye chronological synopsis of the date/events which led ultimately to the Applicant's dismissal in March/April 1996. Ms Sandy went on pre-booked maternity leave on 10 February 1995. Thereafter the entire staff of the Sponsorship unit consisted of [ the appellant ] as the only day care adviser and Ms Blake as the senior day care adviser. On 8 August 1995 the appellant went sick and remained off sick until the middle of October 1995. As soon as [ the appellant ] went sick Ms Devlin with assistance from Ms Blake put into effect a decision that the work carried out by [ the appellant ] as a day care adviser would be devolved to the day nurseries. The decision to devolve the Sponsorship Scheme to the day nurseries was described by the Respondents as a temporary decision." [ Paragraph 25 ] Ms Sandy was notified of the decision by a letter received by her on 4 September 1995. The appellant received a similarly worded letter. As a result of receiving that letter her recovery from ill-health was delayed by several further weeks. There was then a considerable number of meetings. At a council meeting on 7 February 1996 the appropriate committee resolved to delete the two posts of the appellant and Ms Sandy. After the council resolution and further correspondence and discussion the Applicants finally received their notices of dismissal on the grounds of redundancy. [ Paragraph 26 ] The respondent's case and evidence about the dismissals of the applicants was that the Sponsorship unit being a very small unit had always been at risk from leave and sickness absence; that for reasons beyond management control it had not been possible to appoint a replacement to cover the absence of Ms Sandy; that the appellant had an unhelpful attendance record over the summer and when she went off on sick leave in the second week of August for an indeterminate period of time at the time when Miss Blake herself was due to take her summer holiday, emergency arrangements had to be made to devolve the scheme to the nurseries; after devolution of the scheme it became apparent that in fact such a method of carrying out the sponsorship work was more efficient and cost-effective (as had been suspected by Mr Vaudrey for some time); that Mr Vaudrey in due course came to a conclusion that he should recommend that the deletion of the two applicants' posts should be made a permanent decision; that during October, November, December there was extensive consultation with the Applicants and/or the relevant unions investigating alternative re-deployment for both Applicants, and that in the end each Applicant having for their own understandable reasons not been prepared to accept the only alternatives that were on offer, a dismissal for redundancy was the only option. [ Paragraph 27 ] The tribunal described the applicants' cases, as finally presented, as very wide-ranging and went on to say: "
The evidence and documentation in the Tribunal as a matter of fact in the end covered all the main points which the Applicant wished to raise from approximately autumn 1994." The tribunal went on to say that it had been difficult for the tribunal to give firm rulings on what was relevant and what was not. It referred in paragraph 28 to the helpful setting out of the applicants' allegations in written form, in witness statements summaries and helpful and lengthy final concluding written submissions. There were then a number of paragraphs dealing with events from August 1995 onwards and the summary of the tribunal's deliberations. In paragraph 59 the tribunal said:
"On what transpired therefore to be one of the principal central issues in the case namely, the Respondent's decisions and actions in August in reaching interim decisions about the Sponsorship scheme the majority members came to the conclusion that the decisions were taken substantially for the reasons expressed both at the time and at all stages thereafter namely, the crisis flowing from the absences of both Applicants, the under-spend and current lack of efficiency of the scheme and the unavailability of any viable alternative arrangements to provide cover during an initially unknown period of absence of two-thirds and (for a period of time) the whole of the staff of the unit in question." [ Paragraph 60 ] Thereafter the majority members found there was a very full detailed and extensive period of consultation and investigation of alternative temporary employment and ultimately permanent for the Applicants. [ Paragraph 61 ] The majority members came to the clear conclusion that the respondent did its reasonable best to find alternative posts for the Applicants. At all stages they were prepared to protect the Applicant's salaries and principal terms and conditions of employment. [ Paragraph 64 ] The majority members found that this was not a "selection for redundancy" case. The entire unit consisting of two officers and one manager was deleted. [ Paragraph 66 ] As to the reasons for the redundancy therefore the overall conclusions were that a redundancy situation flowed from the temporary emergency decision to delete the Applicants' posts which in due course became a permanent decision. The final stages of the decision consisted of Mr Vaudrey's detailed report to the relevant council committee, circulated to the labour sub-committee and ultimately laid on the table for the full council meeting. Paragraph 67 and part of paragraph 68 said: "67. The majority members accept therefore overall the Respondent's case as to the principal reasons for the decisions to close the unit on a temporary basis originally and thereafter as to the decisions to recommend that that closure be permanent. As to procedural questions and questions of consultation the majority members accept the submissions set out in the Respondent's written submissions and to put the matter very simply came to the conclusion that as to alternative temporary and/or permanent redeployment there was nothing else that the Respondents could or should have done to assist the Applicants. Indeed, the ultimate decision by the Respondents to accept and concede that there were sufficient dissimilarities in the final offers made to the Applicants to entitle them to redundancy payments was, a generous view of the situation. It was clear from the evidence of Mr Vaudrey, Ms Duncan-Brown and Ms Devlin that the various posts being put forward when see in the light of the protection of salary and other employment benefits which were linked to the offer might very well have been viewed by more hard-faced employers as offers of alternative employment dis-entitling the Applicants to redundancy payments altogether. 68. Estoppel . In the foregoing reasons the majority members dealt with and reached conclusions about all the main relevant factual allegations actually made by each Applicant. As a matter of law however, the majority members directed themselves that the law is correctly set out in the Respondent's written submissions and a great deal of the evidence and allegations which were in fact placed before the Tribunal were matters upon which the Applicants were not entitled to rely since they were central to previous proceedings, i.e. the two Originating Applications which Ms Sandy had presented and the one Originating Application which Ms Quashie had presented. …"
The tribunal then went on to consider the principle of issue estoppel very well-established, it said, in English law. And at paragraph 70 it said:
"Miss Quashie on the other hand lost her original proceeding by default. The majority members' conclusions on these Estoppel issues therefore is that Ms Quashie is not entitled to rely upon allegations prior to 30 August 1995 when she presented her very wide ranging complaint. …"
At paragraph 71 the extended reasons moved on to the appellant's claim of victimisation. At paragraph 72 it said:
"In Ms Quashie's case we heard evidence and allegations from her covering the entire period of 1995 and the autumn of 1994 as "background evidence"
. The majority members accept the Respondents arguments that she was strictly limited in her claim of victimisation to matters cut off at three months back from 21 June 1996, i.e. 22 March 1996. Insofar as there was implicit in Ms Quashie's case an application that on grounds of justice and equity we should extend time we saw no proper basis on which time should be extended." [ Paragraph 73 ] The situation before the tribunal presented also the difficult question of whether it would be correct in principle and in accordance with justice and equity to allow an applicant as it were to defeat the principle of Estoppel by being granted the opportunity to reply upon allegations of victimisation which were outside the three months time limit. The majority members cam to the conclusion that it would indeed be wrong in principle. [ Paragraph 75 ] The majority members directed themselves that the proper approach was to imagine a hearing in each case which might have been concluded on, say, 1 October 1995 with both Applicant's cases being dismissed. The majority members came to the conclusion that if the Applicants subsequently then sought to resurrect the principal allegations made in those claims they would be estopped from doing so. [ Paragraph 76 ] It is obvious from the foregoing conclusions of fact that if the majority members were to restrict conclusions about facts to the events facts and conduct of the respondent from October 1995 until March/April 1996 (the time of the dismissals) the conclusions would be even more firmly against the case of each Applicant. In the case of the appellant she would be obliged to show that the actual decision to delete the posts as a matter of fact were taken at the formal council meeting on 7 February 1996, and was taken by councillors (who are of course in effect the senior arm of the respondents) was taken by reason of her having issued racial complaints and/or grievances. No direct evidence was adduced by Ms Quashie as to the state of mind of the Councillors in question. At paragraph 77 the tribunal said:
"If as a matter of law the majority members are wrong to restrict their approach to the evidence in the way set out above as argued by the Respondents the majority members nevertheless concluded that Ms Quashie did not establish her claim of victimisation. She clearly had done a number of "protected acts"
. She had raised on a number of occasions complaints of discrimination on the grounds of race. Furthermore, on the evidence before the Tribunal in at least one meeting in October 1995 and in her letter referring to "bias" on the part of Mr Vaudrey she was also continuing to make that sort of complaint. She had also plainly issued proceedings and there was no dispute on the part of the Respondents therefore that she had done a number of the protected acts specified under section 2 Race Relations Act 1976." The majority of the tribunal then made a number of further findings before concluding at the end of paragraph 85:
"… the majority members find that the decision to dismiss ultimately on the grounds of redundancy in each case was "reasonable" within the meaning of the section 98 of the Employment Rights Act 1996 and the complaints of unfair dismissal are unsuccessful. In the case of Ms Quashie the majority members find that the claim of victimisation is not proved and that claim is also dismissed."
The Appeal[8]The appellant originally made a number of allegations in her Notice of Appeal. After preliminary hearings of the Employment Appeal Tribunal, differently constituted, on 17th February 1999 and 24th September 1999, it was resolved that only some of her allegations made in paragraph 11 of her original Notice of Appeal deserved consideration at a full hearing. The appellant accordingly filed an amended Notice of Appeal signed by her on 28th September 1999.[9]The essential grounds of appeal contained in the amended Notice of Appeal are firstly, that the tribunal was wrong to conclude that the appellant was estopped from relying on a number of matters which were central to the application which the appellant had presented on 30th August 1995 and which had been dismissed [see for instance paragraph 68 of the decision]; and secondly, that the appellant was strictly limited in her claim of victimisation to matters cut off at three months back from 21st June 1996, that is to 22nd March 1996 [see for instance paragraph 72 of the decision].[10]The appellant contends firstly that the tribunal, or rather the majority of the tribunal, was wrong in law in finding that any estoppel arose from the dismissal of her earlier application which came about because of the strike out rather than by an adjudication upon the merits after hearing evidence and argument. She secondly contends that the limitation on her claim for victimisation failed to take any or any proper account of section 68(7)(b) of the Race Relations Act 1976 , which provides that in relation to the period within which proceedings are to be brought:
"For the purposes of this section – … (b) any act extending over a period shall be treated as done at the end of that period."
[11]The appellant's case is that the matters of victimisation of which she complained were part of one long campaign of victimisation going back well before dismissal.[12]It is quite clear from various parts of the extended reasons to which we have already referred, that the majority of the tribunal did rule, firstly, that the appellant was not entitled to rely upon allegations prior to 30th August 1995 so far as unfair dismissal was concerned [see particularly paragraphs 68. 69 and 70] and that it ruled, secondly, that the appellant was limited to matters occurring since 22nd March 1996 so far as her claim for victimisation was concerned. Thereby implicitly, at least, ruling that there was no act of victimisation extending over a prolonged period and into the three months commencing with the 22nd March 1996.[13]Mr Kenward, counsel for the respondent, defends the majority decision relating to estoppel by referring us to Box 1 of the IT1 form of application to an Industrial Tribunal upon which the tribunal adjudicated. That asks the applicant to say what type of complaint or complaints she wants the tribunal to decide. In the box is written:
"Unfair dismissal. Victimisation on grounds of race."
Grounds 6 to 10 in support of that application, Mr Kenward points out, really rehearse the grounds of the original application which had been dismissed. Grounds 11 to 15 relate to events from September 1995 onwards. Ground 15 makes it clear, he contends, that the victimisation complained of was the decision to dismiss. Mr Kenward therefore argues that the tribunal was correct to draw a line after August 1995 as the commencement point of matters which were relevant to the claim for unfair dismissal upon which the tribunal had to adjudicate. He referred us to paragraph 1011 of Harvey on Industrial Relations and Employment Law, Volume 4, which says:
"The effect of a decision of an employment tribunal is that it is binding as between the parties so as to prevent them from litigating the same issues over again in any future legal proceedings; or, to put it more precisely, such a decision is covered by the doctrine of res judicata and issue estoppel. The rationale of this doctrine is that there must be finality of litigation."
Paragraph 1013 reads:
"Therefore, where an employment tribunal has made a final determination on an issue, the parties are bound by the decision in any subsequent proceedings between themselves, whether in an employment tribunal or in a court of law."
Mr Kenward has helpfully referred us to a number of case authorities, none, understandably enough, on the same facts as this case. Perhaps the nearest is the case Barber v Staffordshire County Council [1996] IRLR 209 , where the Court of Appeal held that:
" 'cause of action estoppel' applies not only to a judicial determination made after an investigation of the facts and the hearing of the evidence, but also to the formal dismissal by a tribunal of a claim on withdrawal by the applicant. Such an act is not a mere administrative act on the part of the tribunal, but amounted to a judicial decision and was therefore subject to the doctrine."
Mr Kenward has referred us to authorities which make it clear that the principle applies both to allegations which have been brought forward for decision in original proceedings and to allegations which could have been brought forward for disposal at the same time but were not. Equally, as Mr Kenward accepts, it is clear that issue estoppel will not be applied in cases where there are special circumstances which make it unjust to do so. He points out that the courts have been slow to find special circumstances in this context.[14]In our view, however, an important feature of the present case was the fact of the appellant's dismissal from her employment, soon after the dismissal of her originating application. Even if there had been an adjudication against the appellant on her originating application after the hearing of evidence and argument on the merits, it seems to us that it is at least strongly arguable that the allegations founding the original application which failed, might have taken on a different complexion in the light of events after the making of that application, in particular, in this case, the appellant's dismissal and the circumstances surrounding it. The Industrial Tribunal in this case did not make a clear decision, if any decision at all, as to whether special circumstances existed. In our view, the matters as to which we have referred did amount to special circumstances and we have therefore come to conclusion that the majority of the tribunal was wrong to find, as it did, that the appellant was estopped from relying on matters covered by the first application.[15]Turning to the question of the application of section 68(7)(b) of the 1976 Act, Mr Kenward argues that the victimisation was the dismissal itself. It was therefore appropriate to look only at the three months back from the date of presentation of the second application, that is to 22nd March 1996.[16]However, in our view, the better approach is that, as the appellant was putting her case, her dismissal was but the latest event in a course or act of victimisation which extended back to 1994. Moreover, the tribunal does not appear to have expressly decided whether section 68(7)(b) could assist the appellant in this case. In any event, in our view, the question of whether the appellant's dismissal amounted to victimisation for complaints of racial prejudice and harassment could only be decided by looking at the history and circumstances of those complaints going back well before March 1996.[17]Having said all this, however, the question arises of whether the appellant was prejudiced by the two rulings which we have found to be wrong in law. In the case of Bache v Essex County Council [2000] ICR 313 , Mummery LJ said at 323D-F:
"Even if the Employment Appeal Tribunal or the Court of Appeal find that a ruling has been made in error of law it does not follow that the appeal should be allowed and that the case should be reheard by the tribunal in whole or in part. This is not to diminish the importance of procedural fairness: it is as important in many ways as the application of the substantive law to the facts of the case. But the response to the finding of an error of law in procedure should be proportionate. If the appeal tribunal is sure that the result of the case is unarguably right and that the outcome would have been the same, even if the error of procedure had not occurred, it would be unnecessary, unjust and disproportionate to remit the case to the tribunal for a rehearing. …"
[18]When the Employment Appeal Tribunal heard the preliminary hearing on 17th February 1999 it asked Mr Andrew Clarke QC, who then appeared for the appellant under the Employment Law Appeal Advice Scheme, what evidence or lines of questioning the tribunal prevented the appellant from giving or pursuing. Its purpose in asking that question was to enquire whether any error of law by the tribunal of the kind we have set out, was in fact academic. Mr Clarke had asked the appellant the same question but received an indefinite answer, so the Employment Appeal Tribunal directed that the appellant file an affidavit dealing with that matter. She did so and she has expanded upon her view of this matter at our invitation today. Her view is expressed in rather general terms save that in the affidavit she referred to the investigation by the respondent under its "Discrimination, Harassment, Victimisation procedure (DHV)" and suggested that the Chairman was unwilling to allow her to discuss the report. However, it is clear that the tribunal did consider the report and the appellant's comments upon it [see paragraph 19 of the extended reasons].[19]Today, the appellant has said that the relevant rulings of the majority members of the tribunal meant that the tribunal did not take into account the whole picture. She was not allowed to cross-examine on allegations which had been made that she was a woman with mental problems. She did not get the opportunity to present her case on a level surface. The appellant also made various other complaints both in the affidavit and before us which are beyond the compass of the amended Notice of Appeal.[20]So far as the question of both unfair dismissal and victimisation is concerned, it is clear that the majority of the tribunal declined to make any findings of fact about matters with which the appellant was concerned in 1994 and up to May 1995 [see paragraph 20]. But it is also quite apparent that the tribunal did hear evidence from the appellant covering the Autumn 1994 and the whole of 1995 [see paragraphs 27 and 72] as background evidence and it did make some findings concerning matters before August 1995 [see paragraphs 12 to 21 and 24 and 31]. Moreover, the majority of the tribunal did not consider that the resolution of the rights and wrongs of issues between 1994 and May 1995 was necessary or relevant to the questions of unfair dismissal and victimisation which it had to decide [see paragraph 20 again]. In our judgment, that was a view which the majority of the tribunal was entitled to come to, in circumstances where it had in fact heard a considerable quantity of oral and documentary evidence in relation to matters going back to 1994, but where the heart of appellant's case of unfair dismissal was that the respondent took the opportunity of Ms Sandy's absence on maternity leave from February 1995 and the appellant's absence through illness in August 1995 to transfer the work of her unit elsewhere, thereby depriving her of a job, and where her case of victimisation was essentially that she had been dismissed as a result of raising grievances on racial matters. Moreover, much of the majority's reasoning on unfair dismissal related to the respondent's attempts to provide alternative suitable employment on equally advantageous terms, upon which issue the tribunal heard all the material evidence before finding firmly in the respondent's favour [see in particular paragraph 61]. In all those circumstances, we do not consider that the appellant suffered in any way so far as the claim for unfair dismissal is concerned by reason of any erroneous ruling on estoppel.[21]In our view the position concerning victimisation is clearer still, because it is absolutely clear from paragraph 77 of the extended reasons that the majority of the tribunal did consider the position if it was wrong in law to restrict its approach to the last three months before the application was filed. It concluded that the appellant did not establish her claim for victimisation even then. So it did consider the question of victimisation against all the evidence which it had heard.[22]Returning to the test set out by Mummery LJ, in all the circumstances of this case we consider that the findings of the tribunal were eminently sustainable on all the evidence which it in fact heard and took account of. The outcome would have been the same so far as the majority of the tribunal were concerned, even if the errors of procedure, which we have identified, had not occurred. It would, in our view, be unnecessary, unjust and disproportionate to remit the case to the tribunal for a rehearing.[23]For all those reasons we dismiss this appeal.