MRS A W AYOBIOJO v LONDON BOROUGH OF CAMDEN [2000] UKEAT 210_00_2505

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 210_00_2505Case No Appeal No. EAT/210/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS A W AYOBIOJOAPPELLANTLONDON BOROUGH OF CAMDENRESPONDENT
Before
Mr Justice LindsayDate 25 May 2000
[1]APPEARANCES For the Appellant MR F EDWARDS JR (Representative) Instructed By: Messrs Cain & Abel 239 Missenden Inville Road London SE17 2HX MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of a preliminary appeal the matter of Ayobiojo against London Borough of Camden; Mr Fred Edwards of the firm Cain & Abel has appeared for Mrs Ayobiojo. On 26 February 1999 Mrs Ayobiojo launched an IT1 purporting to describe nine different forms of claim. They were "Sex Discrimination, Victimisation, Victimisation, Victimisation, Harassment, Harassment/Victimisation, Victimisation, Victimisation and Constructive Dismissal/Victimisation" and against each claim there was a number so it runs case 1, case 2, case 3 and so on and each of those headings, which are in the original box 1 of the original IT1, was then expanded upon under a heading case 1, case 2 and so on. There was a rather intimidating footnote that said "I intend to expand on all of the above complaints, where necessary, in my Witness Statement".[2]At that time, 26 February 1999, Mrs Ayobiojo was still working for Camden, although probably under notice, and case 9 referred to constructive dismissal, amongst other subjects.[3]On 23 March 1999 Camden put in an extensive IT3.[4]In July 1999 Mrs Ayobiojo signed a second IT1. By now she had been dismissed with effect, it seems, after the date was amended, from 31 March 1999. The new box 1, which is on our page 40, says this. "Racial Discrimination, Racial Harassment, Racial Victimisation, Breach of Contract, Sexual Discrimination, Sexual Harassment, Sexual Victimisation and Unfair Dismissal". Annexed to the second IT1 were some Further and Better Particulars of complaint and now the case, rather than being numbered case 1, case 2 and so on, is given letter headings, hence "A. Racial Harassment, B. Victimisation" and so on, down to letter E. The particulars actually have a date attached to them, 19 August 1999. There were yet further particulars dated 22 September 1999, which add a little to earlier headings but also have a case "F. Unfair Dismissal", and they were produced on the very day of a procedural hearing, a pre-hearing review, at the Employment Tribunal under the chairmanship of Mr B.T. Charlton. Evidence was given on both sides.[5]The case is an unfortunate example of the way in which a matter can be inflated and prolonged and made more expensive than one would think necessary if one or both parties put their mind to it, but, unfortunately, this preliminary hearing before us will do little to provide early relief.[6]The Tribunal's decision was sent to the parties on 15 January 2000. Leave was given to Mrs Ayobiojo to have the particulars of 19 August 1999 stand as her Originating Application except, perhaps, in one small respect which we will come on to. There is no appeal against that leave in her favour.[7]Of the claims under letter headings, as I have explained, headings A, B and D were struck out by the Employment Tribunal and there is an appeal by Mrs Ayobiojo on that score.[8]Headings C and E were left to go forward to a merits hearing at the Tribunal and that, of course, was in her favour and she makes no appeal against that.[9]As to Claim F Unfair Dismissal, it seems that as to that the particulars of 19 August were not to stand as Mrs Ayobiojo's IT1 but that the case 9 of the original IT1 was taken to be a claim for unfair dismissal, although in fact those words were not mentioned within it. There were to be also amended particulars dated at the day of the hearing, 22 September 1999 and marked "F Unfair Dismissal".[10]We are bound to say that we express some sympathy for the Employment Tribunal, who must have felt that they were grappling with wet bars of soap; every time they thought they engaged and put pressure, then the subject matter shot from their grasp and was replaced by similar material once again. It is not easy for a Tribunal to deal with matters of pleading when matters do change so frequently and so late. But, as to the subject of unfair dismissal, the Tribunal held:
"That the Applicant's application to amend the application dated 24 February 1999, to include a claim for unfair dismissal arising out of redundancy, be refused."
And there is an appeal against that.[11]After the decision there was then an application for a review to which we shall need to return. The application was refused and there is an appeal against that.[12]So what we have in front of us are appeals as to cases A, B and D, as to the refusal of leave to amend to allow the claim for unfair dismissal in the form proposed, and thirdly, as to review. We will deal with the various points that thus arise but in a different order. It is to be remembered that, leaving aside unfair dismissal, the 19 th August 1999 particulars were ordered to stand as the amended IT1. First of all, we will deal with the claim for victimisation.[13]The Tribunal deleted the whole of section B. In our judgment they were right to do so. It may be that in other parts of the pleading reference could be found to acts which could be regarded, if so described and pleaded to be such, as protected acts. But it is not right that those who hear or appear at the substantive hearing should have to ferret about to find out precisely what is alleged under what heading. Victimisation, be it racial or sexual, requires an allegation of a protected act: see the Race Relations Act 1976 section 2(1)(a) to (d) and the Sex Discrimination Act 1975 section 4 (1) (a) to (d) and not only does there need to be one or more protected acts pleaded but the causal link between the unfavourable treatment that is received and the protected act needs to be asserted. The act speaks of "by reason that" which shows that some causal link is needed as between the two.[14]Reading the heading "B. Victimisation" there is, in our view, no protected act alleged within that heading, nor any sufficient explanation or pleading of a causal link of the kind that is necessary. We do not see that there is here an arguable point of law in Mrs Ayobiojo's favour and we dismiss the appeal as to victimisation and section B.[15]Next, we move to unfair dismissal and section F. The chronology here, as far as concerns allegation, is as follows. On 5 February 1999 Mrs Ayobiojo was told that her employment would be terminated on 31 March 1999. On 24 February 1999 she signed an IT1. On 26 February 1999 she lodged the IT1 claiming constructive dismissal. But within her claim for constructive dismissal there was no claim that any particular term of contract had been broken. No breach of contract as such was alleged so, if it was to be a claim for constructive dismissal (and those words were used) it could only have been, if to be justiciable at all, a claim for unfair dismissal because otherwise a breach of contract would have had to have been pleaded.[16]On 26 May 1999 she was actually dismissed. It may have been earlier, on 31 March, but at all events it was a date after the lodging of the IT1. So there was an IT1 lodged after notice but before dismissal, but, properly construed, it does seem to us to have been a claim that included unfair dismissal by way of constructive dismissal.[17]However, the claim at that stage made no reference to redundancy or selection for redundancy or failure in that area and the amendment of 22 September 1999 seeks to allege that if the reason for Mrs Ayobiojo's dismissal was redundancy, then there should have been an attempt to find alternative work and there was not an adequate one, or perhaps none at all, and, moreover, that there was some form of victimisation or racial harassment involved.[18]There was apparently an application to amend even further, even beyond the particulars of 22 September 1999, and on this subject the Tribunal said:
"On consideration of Selkent Bus Company v Moore [1996] IRLR 661 , we have come to the conclusion that in this case it would be wrong to allow the amendment set out in paragraph 3 of their reasons. The proposed amendment wholly alters the nature of the claim nearly six months after the date of dismissal."
A little later, they say:
" …the introduction of a claim of this sort on the hearing of preliminary issues seem to the Tribunal to smack of opportunism. Applying the guidelines in Selkent therefore, we are not prepared to allow the amendment. We do not strike out the original claim although in the circumstances it may be difficult to maintain."
[19]A broad discretion on such matters is given to the Tribunal so long as they take into account only that which should properly be taken into account and leave out of account that which should not be taken into account. Their discretion, so long as exercised in a judicial way, cannot be overturned and we see no arguable error of law in this part of their case.[20]Even if we correct the view that originally there had been no pleading of unfair dismissal, we are left with a proper consideration of matters by the Tribunal under the Selkent Bus case and we do not see that we can spot any error of law in that area and so we dismiss the appeal so far as concerns unfair dismissal.[21]That leaves cases A and D, Racial Harassment and Sexual Harassment. Case D has, amongst the particulars of 22 September 1999:
"The Applicant's treatment by Mrs Robertshaw in taunting and harassing the Applicant with regard to her children of mixed race amounts to sexual harassment."
We do not think that that allegation adds materially to what was set out in case A. The two march together and we will deal with them together.[22]Turning to case A then, Mrs Ayobiojo's complaint is as follows, under case A. Racial Harassment (and I am looking at the particulars of 19 August 1999):
"1 When Mrs Robertshaw saw the Applicant on 20 December 1997 with her 2 mixed race children she looked at the Applicant disdainfully."
We need to explain that Mrs Ayobiojo is white and Mr Ayobiojo is black. "She gave the Applicant a filthy look of disgust with her 2 children of mixed race. Even though the Applicant said hi to her she did not acknowledge her. 2 From that day there was a sudden change in Mrs Robertshaw's attitude towards the Applicant. The Applicant began to be subjected to a number of less favourable treatments by Mrs Robertshaw (see below). 3 On a number of occasions, starting from about 4 January 1998, when Mrs Robertshaw passed by the Applicant, usually for the first time in the day, she would ask her in derisory and derogatory tone how are the splodge? This derogatory remark, although [it] became lesser in frequencies, continued until about the time the Applicant was made redundant in March 1999 by the Respondent. 4 Mrs Robertshaw's continuous treatment of the Applicant especially with reference to the Applicant's children made her ill and distress[ed]. 5 The derogatory remark and the stress caused by Mrs Robertshaw was such that the Applicant asked Mrs Robertshaw that when she is asking of her children, if she could not refer to them as children, the Applicant will be grateful if she does not ask her about her children at all. Nevertheless, Mrs Robertshaw continued to ask her how are the splodge as if they were dirt." The Tribunal's response to this allegation is as follows:
"The complaint of racial harassment under paragraph A of the Further and Better Particulars dated 19 August 1999 is based on Mrs Ayobiojo's claim that Mrs Robertshaw's attitude to her amounted to less favourable treatment based on race. She bases this on alleged remarks about the children being referred to as 'sprogs' or 'splodge' but she accepted in her evidence before us that the use of these words was not necessarily racial. If this is her evidence, then clearly her claim will not succeed."
[23]It seems to us that it by no means follows that because the use of a word is not necessarily racial that therefore a claim for discrimination on racial grounds based on issues will plainly not succeed. One cannot disregard the context in which the word is used. There are many words the use of which is not necessarily racial or racist but which may be racial or racist in a fully understood context. A moment's reflection on the word "spade", for example, would illustrate that proposition. Mrs Ayobiojo's case in this part of her argument is as follows:
"… it was not the Applicant's evidence or case nor accepted that the use of the words 'sprog' or 'splodge' to refer to her children was not necessarily racial. The Applicant had said, when a question was put to her, that it may be that the use of the words 'sprog' or 'splodge' may not have been meant to be racial but that she believed when Mrs Robertshaw used it, it was intended to be racial or otherwise racially derogatory."
[24]We cannot say that the point is not arguable and the appeal on the striking out of sections A and D is a matter that seems to us proper to go to a full hearing. That leaves the question of the review. The position there is as follows.[25]On 15 January the decision of the Tribunal was sent to the parties. On the 19 th a letter was written on behalf of Mrs Ayobiojo asking for a review. On 3 February the Chairman, alone, gave reasons for declining a review. His reasons consisted of two closely typed pages. The Chairman said, in paragraph 4 of his decision, promulgated on 3 February 2000:
"It is in my view not in the interests of justice to allow a review which would in effect cover the ground of that hearing again, albeit with a somewhat different emphasis from the applicant's point of view. There is nothing in the letter of the 19 January which suggests that there is fresh evidence which would justify a review but rather a reworking of the Applicant's representatives arguments before the Tribunal. In those circumstances the Application for a review is refused."
[26]This requires us to look at the applicable Rules. Rule 11(1) says, of the Employment Tribunal Rules:
"(1) Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that – (a) the decision was wrongly made as a result of an error on the part of the tribunal staff; … (e) the interests of justice require such a review. (2) A tribunal may not review a decision of its own motion unless it is the tribunal which issued the decision."
But there is an exception to that found in sub-rule 5:
"(5) An application for the purposes of paragraph (1) may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success."
[27]It is quite plain that the Chairman took the view that a review would not succeed but he nowhere says, in terms, that in his opinion it has no reasonable prospect of success. If he had been of that view (and it is a view which one sees expressed time after time after time when reviews are declined) he would surely have said so and, arguably therefore, he must be taken not to have been of that opinion. In which case the review should have been held by all three members of the panel, rather than by the Chairman alone. The consequence of that, were the point to succeed, would be that the review by one of the three was therefore void. We cannot describe the point as unarguable and therefore it, too, should go to a full hearing.[28]So, looking to collect what needs to be done and the time in which it ought to be done, we order as follows. The particulars of 19 August 1999, which are standing as Mrs Ayobiojo's IT1, and, so far as relevant the particulars of 22 September 1999, must be re-served on Camden in amended form within 14 days after the sending out to the parties of the transcript of this judgment. The necessary amendment is that there should be deleted therefrom the whole of case B and the unfair dismissal allegation, case F, as to which the appeal of Mrs Ayobiojo has been dismissed. Within the same period of 14 days the Notice of Appeal must be amended to delete matters which we have not allowed to go to a full hearing.[29]Thirdly, the amended Notice of Appeal can then go to a full hearing at the EAT to test whether there has not been merely an arguable error of law but actual error of law as to cases A and D and as to the review. Skeleton arguments must be submitted between the parties and exchanged and also sent to the EAT not later than 21 days before the full hearing of the EAT. If that is not respected the EAT may adjourn the full hearing without further notice and leave over to the adjourned hearing any issue as to the incidence of costs thus thrown away. No Chairman's Notes have been sought and none is ordered.[30]I will have shortly to ask Mr Edward whether he wishes to have leave to appeal in respect of the parts of the case which have been lost but, in the interim, the parties should give careful consideration to whether or not this full hearing, which we have just permitted, can be avoided by a little give and take so that instead of incurring yet further interlocutory costs and delays the matter could go on to the substantive hearing on the merits at the Employment Tribunal, which should be everyone's earnest wish.[31]I now ask Mr Edward if he wishes to apply for leave to appeal in respect of the parts of the case that have been lost.