EAT/206/00 MR O AYOVUARE v THE LONDON BOROUGH OF GREENWICH [2000] UKEAT 206_00_1804

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 206_00_1804

Case No Appeal No. EAT/206/00, EAT/76/00 & EAT/339/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

EAT/206/00 MR O AYOVUAREAPPELLANT

THE LONDON BOROUGH OF GREENWICHRESPONDENT

EAT/76/00 & EAT/339/00 THE LONDON BOROUGH OF GREENWICHAPPELLANT

MR O AYOVUARERESPONDENT

Before

Mr Justice Burton

Date 18 April 2000

[1]APPEARANCES For Mr Ayovuare VINCENT ONOEGBU (of Counsel) For the London Borough of Greenwich PETER WALLINGTON (of Counsel) Instructed by: The London Borough of Greenwich Legal Services & Chief Executive's Department 29-37 Wellington Street Woolwich London SE18 6PW MR JUSTICE BURTON : In this series of appeals between the London Borough of Greenwich and Mr Ayovuare, this is a meeting for directions. It is appropriate to call the London Borough of Greenwich the Appellant and Mr Ayovuare the Respondent, although as will be apparent there are appeals and cross appeals.

[2]I have dealt in this hearing with two preliminary points made by the Respondent in relation to the Notice of Appeal served by the London Borough of Greenwich and I deal with those very shortly.

[3]The first point Mr Onoegbu made on behalf of the Respondent was an assertion that the Appellant's Notice of Appeal was out of time. The original decision on liability made by the Employment Tribunal at London (South) was entered and sent to the parties on 24th September 1999, and the Notice of Appeal was apparently sent by courier on 2nd November and received at the Employment Appeal Tribunal on 5th November 1999. Mr Onoegbu asserted that that was more than 42 days from the entry of the decision and hence out of time. I am satisfied that the 42 days had not expired when the appeal was received.

[4]The second point that Mr Onoegbu made arose out of the amendment of the Notice of Appeal. What occurred, briefly, was this, that in its original decision the Employment Tribunal commenced its decision with the words:

"The unanimous decision of the Tribunal is that: (i) the Applicant was discriminated against on racial grounds"

The body of the decision does not appear to support that conclusion at any rate on its face. There were however findings in addition:

"(ii) the Applicant was victimised contrary to section 2 of the Race Relations Act 1976; (iii) the Applicant was unfairly dismissed; (iv) the Applicant contributed to his dismissal to the extent of 40% …"

There was a provision for a remedies hearing which in due course took place and the decision on the remedies hearing was entered on 29th January 2000.

[5]The tribunal, it appears, concluded that there was an error in the recital that I have referred to, with regard to its decision of discrimination on racial grounds, and by Certificate of Correction, entered on 3rd November and promulgated on 4th November 1999, the relevant paragraph was deleted, alternatively, I suppose it could have had a 'not' inserted in front of it on the same basis, under effectively what would be called in the High Court the 'slip rule'.

[6]The Appellant had included in its Notice of Appeal a challenge to the apparent finding by the Employment Tribunal, inter alia , on the basis that there were no reasons given for such a conclusion, alternatively that the findings of fact made did not or would not have supported such a conclusion. When the Certificate of Correction was promulgated it became apparent that the Appellant would no longer need to pursue that ground of appeal, and so it notified the Employment Appeal Tribunal that it wished to withdraw those parts of the grounds of appeal which challenged that conclusion, while pursuing the balance of its grounds of appeal in respect of the findings of victimisation and unfair dismissal, to which I have referred.

[7]The Employment Appeal Tribunal requested that there be a formal amendment to the Notice of Appeal rather than simply a notification that certain parts of the grounds of appeal were abandoned, and by letter dated 13th December 1999 stated:

"It would assist the court if you would provide a copy of the Notice of Appeal with the appropriate deletions shown in red within 7 days of the date of this letter."

It appears in fact that it took eight days before the Employment Appeal Tribunal received the amended Notice of Appeal. As is clear, that amended Notice of Appeal did not add any allegations, it withdrew some in the light of the correction. Mr Onoegbu has submitted that that amounted the abandonment of the old Notice of Appeal, which I have concluded was in time, and the substitution of a fresh Notice of Appeal which itself would thus be out of time as being more than 42 days after the original decision. Certainly in such circumstances if Mr Onoegbu's point was right, it seems quite clear that an Employment Appeal Tribunal would give leave for an extension of time to allow the fresh Notice of Appeal, albeit that it was out of time. But such is not necessary, because of the well established principle that an amendment dates back to the original date of issue. That is why there are on occasions problems about adding allegations, or in particular at first instance, causes of action by way of amendment, because if allowed in they would add them retrospectively. But no such problem in any event arises where the aspect of amendment is a deletion. I am entirely satisfied that there is no substance in the assertion that the amended Notice of Appeal is out of time.

[8]With those two procedural objections out of the way, the balance of the hearing related to dealing with how to prepare most adequately for the appeal which is now to be heard on 24th July 2000.

[9]The right course appeared to me, with both parties' enthusiastic support, to recast it in the following way:(1) that there will be an amended Notice of Appeal by the Appellant relating to liability by way of an appeal against the corrected decision, which unless and until it is successfully challenged by the respondent remains the valid decision on the record, and will also include the Appellant's complaint as to the consequence of the remedy decision.

(2) There will then be a cross-appeal plus of course any such answer as the Respondent wishes to make, and indeed has already made, to those already extant appeals by the Appellant, plus the cross-appeal in which the Respondent will pursue his challenge to the correction, because Mr Onoegbu asserts that, as he put it today, the correction by the Chairman on 4th November 1999 is null and void on grounds on which he will no doubt in due course expand and explain.

(3) There will then be a cross-appeal to the cross-appeal by the London Borough of Greenwich which will effectively restore its original arguments by way of complaint of the uncorrected decision on the basis that if, contrary to the Appellant's contention, the Respondent is successful in challenging the Certificate of Correction such that the uncorrected decision is thus restored, the Appellant will then seek to challenge the uncorrected decision on the grounds to which I have referred above. Although I in no way seek to bind the way in which the Appeal Tribunal in July run the hearing, which is entirely a matter for them, both parties submitted, and it seemed to me sensible, that it may well be the right course for the question of the validity of the Certificate of Correction to be decided first, because if the Certificate of Correction is upheld then the appeal will run only in respect of the corrected decision and the quantum and remedies arising out of it; whereas if the Certificate of Correction is set aside then the challenge to the uncorrected decision will follow and in any event the quantum appeal would fall to the ground, because of course if the uncorrected decision remains then there would be challenge to the quantum appeal, unless of course the Respondent's cross-appeal to the cross-appeal were successful in restoring the corrected decision once again.

[10]The other matters that were in contention before me today related to the questions of affidavit evidence and I have given directions which, hopefully, will not in any way put at risk the hearing on 24th July provided that the Chairman of the Employment Tribunal below, and members where appropriate, are given sufficient time to comment, as ought to be the case by virtue of the timetable I have provided for.

[11]The first matter, although they will both be dealt with in the same affidavit, relates to the quantum of unfair dismissal compensation awarded by the Tribunal at the remedies hearing. On the face of the decision the sum is well over the then jurisdiction of the Employment Tribunal. The decision recites that this arose as a result of the parties' agreement:

"The parties agreed that the appropriate sum for loss of earnings from dismissal to the date of hearing was …"

[12]The Appellant submits as part of its appeal against the remedies decision that there was no jurisdiction in the Employment Tribunal, even if there was such an agreement, alternatively, that, in any event, there was no such agreement. The Respondent asserts that there was an agreement and, in any event, that there would be jurisdiction if there was such agreement.

[13]An affidavit is to be provided by Mr Cadoo on behalf of the Respondent which will enable the Appeal Tribunal, if so advised, to consider together with the response to it and any response by the Chairman, any issue of fact that requires to be and can be resolved on the question as to whether there was such an agreement.

[14]The second issue relates to part of the remedies decision at paragraph 6(B)(iii) which relates to an unidentified manager who was in fact Mr Andrews. The Appellant submits that there were no findings or indeed evidence of fact which would support the assertion of the Tribunal there set out which appears to have formed the basis, at least in part, for the compensation it awarded, consequently that there would be perversity finding in that regard. The Appellant submits that the only reference to that manager was as referred to in the earlier liability decision of the Tribunal, such that if one looks at that finding that is the only relevant finding of fact, and that could not support the conclusion of the Tribunal in the remedies decision in the paragraph to which I have referred. I sought to explore with the parties as to whether that was common ground, and it became clear from Mr Onoegbu that that was not common ground, and that it was or would be asserted that there was other relevant evidence relating to the manager in question which could have supported the finding of the Tribunal, although for reasons that are obvious, none of that was expanded before me at all.

[15]There would then be two possible courses of action that could be followed. One is, in order to prove a negative, the entirety of the Notes of Evidence below could be ordered. The other is that affidavit evidence from both sides with any necessary comment from the Chairman could be provided, limited to this very short point as to the nature, if any, of any evidence with regard to Mr Andrews, the manager, given at the liability hearing, which then could form the basis of any conclusion by the Tribunal at the remedies hearing. It appeared to me that the much cheaper and quicker course, quite apart from the most convenient, would be for the affidavit of Mr Cadoo, which in any event is to be given on the other aspect to which I have referred, should include matters with regard to Mr Andrews and that again the Respondent should have the similar opportunity to respond to that evidence and once again the Chairman's comments, if any, be invited.

[16]Those are the reasons why I have made the orders that I have today, and the hearing on 24th July 2000 will require the usual skeleton arguments 14 days before and it will be Category B. The estimate of time one day. Mr Wallington originally estimated a day and a half and I hope that his pessimism is not proved to be correct, but in order that this hearing can take place before the end of the Summer term at the urgent instance of the Respondent, it is now said to be one day and I hope that can be accommodated.