MR D C D'SOUZA v (1) SIR H OUSELEY (2) LONDON BOROUGH OF LAMBETH [2000] UKEAT 28_99_2501

"Background Mr D'Souza commenced employment with the Greater London Council in November 1984. Following its abolition he transferred to employment with Lambeth, holding a senior position in the computer services department from 3rd March 1986 until his dismissal on 16th January 1990. During his employment with Lambeth he brought four separate complaints of unlawful racial discrimination and/or victimisation against his employer. He is of Asian ethnic origin. Following his dismissal he presented a fifth complaint of unfair dismissal and racial discrimination. The progress of those complaints, and inaction on the part of Lambeth in dealing with them, is fully set out in the judgment given on behalf of the Employment Appeal Tribunal by Morison P. and reported at [1997] IRLR 677. An order for reinstatement made after an Industrial Tribunal upheld the fifth complaint was not complied with on 25th March 1993. Ultimately he received an award of just over £350,000 as a result of the order of this Appeal Tribunal made on 9th October 1997. That award is currently the subject of an appeal to the Court of Appeal by Lambeth. Sex Discrimination Mr D'Souza's sex discrimination claim arises in this way. He wished to compare the treatment which he received at the hands of Lambeth with that afforded to a female employee, Ms Emma Lewis. Ms Lewis was first employed by Lambeth on 10th October 1978. She is black. She brought a complaint of racial discrimination under Case No. 32355/85 arising out of her non-selection for the post of District Rehousing Officer for the Kennington District in December 1985. That complaint was heard by an Industrial Tribunal sitting at London (South) under the chairmanship of Mrs T J Mason over seven days in September and November 1986. By a decision with full reasons promulgated on 19th December 1986 her complaint was dismissed. Before coming to the material complaint we should refer to the judgment of Judge Hull QC, delivered on behalf of a division of the Employment Appeal Tribunal in EAT/1042/96 on 2nd July 1997. That was an appeal by Mr D'Souza against a decision of an Industrial Tribunal sitting at London (South) under the chairmanship of Mrs Gleeson on 26th June 1996 and promulgated on 13th August 1996 dismissing his then complaint of sex discrimination on the grounds that it was time-barred. The EAT judgment records that in 1990 the appellant became aware of grounds for believing that he could bring a claim in respect of sex discrimination, but was advised not to proceed with such a claim by experienced solicitors then advising him, Messrs Lawford & Co. It was not until 23rd February 1996 that he served a sex discrimination questionnaire on Lambeth, followed by an Industrial Tribunal complaint which was dismissed by Mrs Gleeson's tribunal on 13th August 1996. His appeal against that decision was dismissed by Judge Hull's Appeal Tribunal on 2nd July 1997. It cannot be coincidental that the material complaint was presented to the Industrial Tribunal on the same day that Judge Hull delivered this tribunal's judgment in the matter of the first sex discrimination complaint. However, no question of issue estoppel or res judicata is raised in relation to the material complaint. The material complaint By his Originating Application dated 2nd July 1997 the appellant averred that although at the time when Lambeth refused to reinstate him, pursuant to the Industrial Tribunal's order on 25th March 1993 he believed that such refusal constituted unlawful sex discrimination he did not have the evidence to support such a claim. This was due to Lambeth giving him untrue information and suppressing relevant facts and documents. In particular, he was not able to obtain a copy of the Industrial Tribunal's decision in Ms Lewis' 1986 case until one was provided by the Commission for Racial Equality on 23rd June 1997. He sought an extension of time for bringing this sex discrimination complaint on the basis that the delay in doing so was attributable to the tactics used by Lambeth."

"We have before us ex parte preliminary hearings in three appeals brought by Mr D'Souza in his continuing litigation against his former employer, the London Borough of Lambeth ["

"The substantive decision The Davis Industrial Tribunal found that the appellant was no stranger to the Industrial Tribunal. He was now on his tenth complaint against Lambeth and in addition had three appeals before the EAT and one in the Court of Appeal. He had become familiar with employment law. The tribunal record the nature of his complaint, namely the failure to reinstate him pursuant to the earlier Industrial Tribunal order compared with the treatment afforded to Ms Lewis. Whether that claim has any merits does not fall to be decided. The question is whether it is time-barred. The tribunal did not accept that his waiting for a copy of Ms Lewis' decision prevented him from bringing his complaint. They weighed the prejudice to the parties in allowing the matter to proceed or not and concluded that it was not just and equitable for the complaint under the Sex Discrimination Act to proceed. Secondly, they found that the appellant had no free-standing cause of action under the Directive. Accordingly the complaint was dismissed. The appeals We have had the advantage of reading the concise and closely-argued skeleton submissions prepared by Mr D'Souza in relation to each of the three appeals. He has supplemented those submissions by oral argument today. Having considered the way in which the appeals are put we shall deal with each in turn. The first appeal Mr D'Souza first challenges the Industrial Tribunal finding that he had no claim under the Equal Treatment Directive. We reject that submission, first, on the ground that this is a claim of sex discrimination which can be brought under the Sex Discrimination Act. There is no material conflict between the Act and the Directive. Secondly, and in any event, the domestic procedural rules as to time limits under the 1975 Act apply. We see no distinction in principle between this case and that of Biggs v Somerset County Council [1996] ICR 364 simply on the basis that in Biggs the Court was dealing with the time limit under unfair dismissal legislation, which provides for extensions of time under the reasonable practicability test. and under the Sex Discrimination Act the just and equitable test applies. Further, we do not accept that the domestic procedural rules as to limitation of actions in sex discrimination complaints offends European law. Nor do we accept that the Industrial Tribunal rules of discovery, even if they are less favourable than the ordinary civil rules of automatic discovery, are of relevance in deciding the limitation issue in this case. Secondly, as to the Industrial Tribunal's refusal to extend time, we have taken into account the background to the material complaint as Mr D'Souza has related it in his skeleton argument. In summary he repeats that he believed that he had a sex discrimination claim by reference to Ms Lewis before his dismissal. Following his dismissal on 16th January 1990 he had a meeting with Mr Carmicheal, Lambeth's Chief Personnel and Management Services Officer and raised the case of Ms Lewis. He claims to have been told that the entire story about Ms Lewis and her tribunal case was untrue. He then discussed the possibility of raising a claim of sex discrimination with his solicitors, Messrs Lawford & Co, and was advised against it. He accepted that advice and instead pursued his claims of racial discrimination and unfair dismissal, with conspicuous success as it has turned out thus far. On 24th October 1992 he saw an article in the Daily Telegraph concerning Ms Lewis. He has shown us that article. It was reported that Ms Lewis had been at home on paid leave for five years. Although she lost her claim of race discrimination before Mrs Mason's Industrial Tribunal, her claim was then accepted by a Council grievance panel. Finally, she accepted an undisclosed redundancy package in June 1992. The appellant wrote to Lambeth's then Chief Executive, Sir Herman Ouseley as he now is, on 26th October 1992, but took no steps to issue a complaint of sex discrimination. On 9th November 1992, he told us this morning, the appellant applied to an Industrial Tribunal for leave to amend his then complaint of racial discrimination to add a complaint of sex discrimination. That application was refused. He did not appeal against that decision. On 25th March 1993 Lambeth informed the appellant that they would not reinstate him pursuant to the Industrial Tribunal's order. He contends that thereafter Lambeth's failure to reinstate him was a continuing act of sex discrimination (in separate proceedings he also contends that that was an act of unlawful racial discrimination and/or victimisation) so that the material complaint is in time. The Industrial Tribunal rejected that submission. In our view they were entitled so to do. It was a single act, not a continuing act, assuming that an act of sex discrimination after employment has ceased is justiciable. cf. Adekeye v Post Office (No.2) [1997] IRLR 105. Reverting to the question of extending time under s.76(5), on the basis that the ordinary limitation period for bringing the material complaint expired, at the latest, three months after the refusal to reinstate in March 1993, was the tribunal entitled to conclude that it was not just and equitable to extend time where the material complaint was four years outside the ordinary time limit? We remind ourselves of the approach set out in the judgment of Phillips J in Hutchinson v Westward Television Ltd [1977] ICR 279. S.76(5) gives a wide discretion to Industrial Tribunals. This Appeal Tribunal will only interfere with that exercise of discretion where it is shown that the Industrial Tribunal has failed to consider material factors, or had considered irrelevant factors or has otherwise reached a perverse conclusion. In our judgment the Industrial Tribunal took into account relevant factors, it did not take into account irrelevant factors, and reached a permissible conclusion for the reasons given, weighing up the potential prejudice to both parties. In particular, it was entitled to reject as a good reason for delay the appellant's claimed difficulty in acquiring a copy of the Lewis Industrial Tribunal decision before issuing the material complaint. Further, it was open to the tribunal to reject the appellant's case that he had been prevented from bringing his complaint due to the alleged concealment of relevant facts by Lambeth. The position was sufficiently clear to him as a result of reading the Daily Telegraph article in October 1992. It is not a reason for failing to commence proceedings that one's opponent has not been forthcoming prior to the issue of proceedings. That is very often the reason for issuing proceedings. We also reject the appellant's complaints about the fairness of the hearing before the Davis Industrial Tribunal. The respondent was plainly entitled to refer to the judgment of the EAT in Appeal 1041/96, although we see from the Chairman's comments on the Notice of Appeal that it did not assist the tribunal in reaching its decision. Secondly, the Chairman was entitled to reject the appellant's application for a direction that Mrs McKane should tender herself as a witness for cross-examination. Next, we do not accept that the Chairman gave the appearance of bias because, in his comments dated 30th January 1998, he proffered the opinion that Mr D'Souza was becoming a vexatious litigant. Finally, we have considered Mr D'Souza's various submissions to the effect that he did not receive a fair hearing before the Industrial Tribunal according to European law, and in particular Articles 5 and 6 of the Directive. We see no grounds for impugning the procedure followed by the Industrial Tribunal in this case. In short, we uphold the substantive decision."

"UPON THE APPLICATION of the Appellant by letter dated the 12 th day of August 1998 pursuant to Rule 33(1) of the Employment Appeal Tribunal Rules 1993 for a Review of the Orders of the Employment Appeal Tribunal made on the 22 nd day of July 1998. THE TRIBUNAL ORDERS that the aforesaid application be refused."

"UPON judgment having been handed down on the 22 nd day of July 1998 when the appeals were dismissed AND UPON the Appellant's application for a Review and leave to appeal to the Court of Appeal by letters dated the 31 st day of July 1998 and the 12 th day of August 1998 being dismissed by Orders dated the 12 th day of October 1998 AND UPON a further application for a Review by letter dated the 23 rd day of February 1999 AND UPON consideration of the aforesaid application that the law applicable to this case has been altered by the House of Lords decision in Kleinwort Benson Ltd –v- Lincoln City Council (1998) 4 AER 513 and in the ECJ decision in Levez –v- T H Jennings Ltd (1999) IRLR 36 IT IS ORDERED that the application is dismissed as the said decisions do not alter the position and do not constitute a ground for Review under Rule 33(1) of the EAT Rules of Procedure 1993."

"The position was sufficiently clear to him (Mr D'Souza) as a result of reading the Daily Telegraph article in October 1992. It is not a reason for failing to commence proceedings that one's opponent has not been forthcoming prior to the issue of proceedings". (b) At the Employment Tribunal and the Employment Appeal Tribunal Mr D'Souza sought adjournments to await the outcome of a decision or decisions of the European Court of Justice and, in particular of the decision of the European Court of Justice in Coote v Granada Hospitality Ltd in which the order for reference was dated 20 November 1996. Those applications for adjournments (together with the record of Mr D'Souza's arguments contained in the judgments of the Employment Tribunal and the Employment Appeal Tribunal) show that in broad terms Mr D'Souza was at those stages running the arguments: (i) as to the existence and nature of his claims, (ii) that it was just and equitable to extend time, and (iii) that the time limits in Section 76 of the Sex Discrimination Act 1975 should be disapplied, and further or alternatively not applied to his claims under the Directive that Mr D'Souza has advanced on these appeals. (c) Again in round terms at the times that Mr D'Souza presented his claims in July 1997 and argued them before the Employment Tribunal and the Employment Appeal Tribunal Mr D'Souza was asserting that the law accorded with the decisions later made in the European Court of Justice and by this Tribunal in Coote v Granada Hospitality Ltd ; (d) Following the decision of the European Court of Justice in Coote v Granada Hospitality Ltd this Tribunal chaired by the President has concluded that the Sex Discrimination Act 1975 should be construed so as to give effect to the ruling of the European Court of Justice and has expressed doubt as to the reasoning of the Court of Appeal in Adekeye v Post Office (No.2) [1997] IRLR 105. It follows that and on the basis of that decision of the Employment Appeal Tribunal in Coote Mr D'Souza could (as he has always asserted) base his claims on Sections 1 and 4 of the Sex Discrimination Act 1975. (e) The position has therefore been reached that in respect of Mr D'Souza's claims under Sections 1 and 4 of the Sex Discrimination Act 1975 the position assumed but not decided by the Employment Tribunal for the purposes of exercising its discretion under Section 76(5) of the Sex Discrimination Act 1975, namely that Mr D'Souza could bring his claim although it was based upon an act after the termination of his employment has been found to be the law. (f) Mr D'Souza has argued that the Employment Tribunal and the Employment Appeal Tribunal were wrong to make such an assumption and that they could not give themselves jurisdiction to consider whether or not to extend time on that basis. We do not agree. Mr D'Souza was arguing that he could bring such a claim and such argument could have been dealt with as a preliminary point or as part of the main hearing if time had been extended. The argument was therefore an issue in the proceedings. In our judgment another issue in the proceedings and one which the Tribunal had jurisdiction to determine was whether or not, in any event, the complaint had been made in time and if not, whether time should be extended on the basis that such an extension was just and equitable. (g) In any event, if the question whether it would be just and equitable to extend Mr D'Souza's time for bringing his claims was to be reconsidered now this would be done on the basis being asserted by Mr D'Souza in reliance on the Sex Discrimination Act and the Directive and assumed (or not decided) by the Employment Tribunal when they refused to extend time, namely that Mr D'Souza could bring his claims notwithstanding that they were based on events that happened after the termination of his employment. The recent authorities that Mr D'Souza seeks to rely on therefore establish the basis upon which the original decision was made and in those circumstances, we do not see why it is reasonably arguable that the exercise of discretion should be re-visited. (h) This case is therefore very different to the cases relied on by Mr D'Souza, namely Rastall v Midlands Electricity Plc [1996] ICR 644, Methilhill Bowling Club v Hunter [1995] IRLR 232 and Rankin v British Coal Corporation [1993] IRLR 70 because, as we have explained, he was asserting that he could bring his claim under the Sex Discrimination Act and further or alternatively the Directive at the time he presented his complaint to the Employment Tribunal and his claims were not dealt with on the basis that he could not. His argument for extending time was that he lacked factual rather than legal information. (i) In the light of the recent decision of this Tribunal in Coote Mr D'Souza's argument that he additionally has a claim under the Directive does not in our view add anything and means that the position now is as stated by the Employment Appeal Tribunal in the July 1998 EAT judgment. Further, and in any event, we are of the view that any further or alternative claim that Mr D'Souza wishes to advance under the Directive would be out of time and that the decision of the Employment Tribunal not to extend time and the dismissal of the appeal against that decision by this Tribunal apply, or should be treated as applying, to such claims. (j) Mr D'Souza also argues that the statutory time limit in Section 76 (1) (and on part of his argument as we understand it Section 76 (5)) should be disapplied in respect of his claims under the Sex Discrimination Act 1975 and not applied in respect of his further or alternative claims under the Directive. As to that argument he relies on the decisions of the European Court of Justice and of this Tribunal in the Levez case and the principles of "equivalence" and "effectiveness" referred to therein. We do not accept that these arguments advanced by Mr D'Souza amount to reasonable arguments at law. (k) One strand of the argument is that a comparison should be made with claims under Part III of the Sex Discrimination Act 1975 and, as we understood him, he used that comparison to introduce either (i) a limitation period of six months through Section 76 (2) of the Sex Discrimination Act 1975, or (ii) a limitation period of six years through the Limitation Act 1980, or (iii) Section 33 of the Limitation Act 1980 applies if section 76(5) of the Sex Discrimination Act, or a similar provision giving the Employment Tribunal a discretion to extend time applies. (l) If Section 76 (2) of the Sex Discrimination Act 1975 is so introduced it adds nothing because the sixth month period referred to therein had expired before the proceedings were begun and one returns to Section 76 (5) and a consideration of whether or not in all the circumstances of the case it is just and equitable to extend the time. (m) We do not accept that a relevant comparable is a six or twelve year period of limitation contained in the Limitation Act. (n) Further, we do not accept that it is reasonably arguable that the Employment Tribunal or the Employment Appeal Tribunal erred in law in not referring to the matters set out in Section 33 (3) of the Limitation Act 1980. That section introduces those matters by saying: "