MR A DOSHOKI v DRAEGER MEDICAL LIMITED [2000] UKEAT 39_99_0803

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 39_99_0803Case No Appeal No. EAT/39/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A DOSHOKIAPPELLANTDRAEGER MEDICAL LIMITEDRESPONDENT
Before
His Honour Judge Peter ClarkDate 8 March 2000
[1]APPEARANCES For the Appellant MR E COPPINGER (representative) For the Respondent MR R DOWNEY (of Counsel) Messrs Pickworths 28 Station Road Watford Herts WD1 1EG JUDGE CLARK This application for leave to re-amend the Notice of Appeal comes before me in the following circumstances. The Appellant, Dr Doshoki, who is of Iranian national origin, was employed by the Respondent from 9 June 1997 until his summary dismissal on 4 March 1998.[2]Following that dismissal he presented an Originating Application to the London (North) Employment Tribunal on 26 May 1998, complaining of victimisation/racial discrimination; breach of contract (wrongful dismissal) and failure to pay commission.[3]The claims were resisted and came on for hearing before an Employment Tribunal Chaired by Mr B Buckley on 6 August and 29 October 1998. Following deliberations in Chambers on 11 November 1998, the Employment Tribunal promulgated their decision with extended reasons on 26 November. They held:(1) that the wrongful dismissal claim succeeded. The Appellant was awarded damages of £2,505.82(2) the claim for commission failed(3) the Respondent did not unlawfully discriminate against the Appellant on grounds of his race[4]Against that decision the Appellant appealed by a Notice lodged on 16 December 1998. The grounds of appeal were drafted by the Appellant in person.[5]The appeal came on for preliminary hearing before a division presided over by Judge Hicks QC on 15 September 1999. On that occasion the Appellant attended the hearing personally, but was represented by a lawyer, Ms Mary Stacey, under the ELAAS pro bono scheme.[6]In a judgment delivered by Judge Hicks on that day the Employment Appeal Tribunal allowed the appeal to proceed to a full hearing on 2 grounds which they thought to be arguable:(1) that the Employment Tribunal failed to deal at all with the Appellant's complaint of victimisation(2) that the Employment Tribunal was wrong to find that racial insults directed at the Appellant did not amount to a detriment for the purpose of the 1976 Act.[7]The Employment Appeal Tribunal also dealt with a third point, raised by Ms Stacey in argument but not covered by the original Notice of Appeal. It was submitted that the Employment Tribunal had failed to consider whether, in dismissing the Appellant, the Respondent treated him less favourably on grounds of his race when compared with a hypothetical comparator. That submission was rejected by the Employment Appeal Tribunal.[8]Finally, the Employment Appeal Tribunal directed that the Appellant lodge an amended Notice of Appeal, setting out the 2 points permitted to proceed to a full hearing.[9]Following the preliminary hearing the Appellant instructed the Hounslow Law Centre to act on his behalf. By a letter dated 12 October 1999, the Law Centre wrote to the Registrar, enclosing a draft amended Notice of Appeal which contained all 3 grounds argued at the preliminary hearing. Ground 3 read:
"Failed to find and/or consider that Mr Doshoki's dismissal in itself was a discriminatory act."
[10]In their covering letter, the Law Centre acknowledged that ground 3 had been "technically dismissed" by the Employment Appeal Tribunal, but they nevertheless wished to re-argue the point at the full hearing on the basis that Ms Stacey had been unaware of any actual comparator for the purpose of ground 3, whereas in his written evidence-in-chief the Appellant had referred to a not dissimilar incident involving a white employee. The allegation was that that unidentified employee had misbehaved at the same event which led ultimately to the Appellant's dismissal for his behaviour on that occasion.[11]The proposed amended Notice of Appeal was referred to Judge Hicks, who directed by a letter dated 18 October 1999 that, ground 3 having been rejected by the Employment Appeal Tribunal sitting on the preliminary hearing, it should be struck out. The letter continues that it is for the Appellant and his advisors to consider what course to take in the circumstances, whether by seeking to appeal our dismissal of that ground, applying for leave to re-amend to include ground 3 or otherwise. By a letter dated 21 October, the Law indicated the Appellant would pursue the second course. That application for leave to re-amend was opposed by letter from the Respondent's solicitors, dated 16 December 1999, on the basis that ground 3 of the proposed amended Notice of Appeal had already been dismissed by the Employment Appeal Tribunal. It was said that it would be an abuse of the system to grant the Appellant a further opportunity to argue the point.[12]In support of his application for leave to re-amend, Mr Coppinger takes 4 points. First, he submits that Ms Stacey failed to inform Judge Hicks' Tribunal that there was in fact an actual comparator advanced by the Appellant in evidence before the Employment Tribunal. He submits that the fact of an actual comparator would have had a practical effect in terms of the Employment Appeal Tribunal's judgment on what I shall call ground 3, at the preliminary hearing stage. In these circumstance he argues that leave ought to be granted.[13]In response, Mr Downey submits that the real question for the Employment Tribunal, was whether or not there was a causative link between the dismissal and the Appellant's race. He has drawn my attention to paragraph 9(f) of the Employment Tribunal decision, in which there is a clear finding that the Respondent's decision to summarily dismiss the Appellant "was not in any way a decision based upon racial grounds."[14]It seems to me that Mr Downey is correct. Whether the point was advanced at the preliminary hearing on the basis of an hypothetical or an actual comparator is not the real issue. The question is whether the Employment Tribunal's finding on causation was considered and rejected at the preliminary hearing stage. In my judgment it was.[15]The second point taken by Mr Coppinger is that the Respondent is not prejudiced if I were to grant permission for the proposed re-amendment and he drew my attention to paragraph 7(1) of the Employment Appeal Tribunal Practice Direction, which states:
"That where leave is given to an Appellant who amends his Notice of Appeal at a preliminary hearing, then, it is open to the Respondent to object to that amendment, however, in the absence of prejudice it is unlikely that that objection would be upheld."
[16]That is not the position in this case. Had the Respondent objected to the amendment, in terms of grounds 1 and 2 of the amended Notice of Appeal, they would have met with short shrift. However, their objection here is that ground 3 has already been determined in their favour by the Employment Appeal Tribunal at the preliminary hearing. It seems to me that that is the real point in this application and one that is unanswerable so far as the Appellant is concerned.[17]Next, Mr Coppinger refers to the powers of the Appeal Tribunal contained in section 35 of the Employment Tribunals Act 1996, and submits that I have a very wide discretion in deciding whether or not to grant this application. In my view section 35 is nothing to the point. It provides that where the Appeal Tribunal upholds an appeal it may either exercise the powers of the Employment Tribunal and effectively substitute its own decision for that of the Employment Tribunal or it may remit the case back to an Employment Tribunal for re-appearing. That has no bearing upon the purely procedural point which I am asked to consider today.[18]Finally, Mr Coppinger submits that the Appellant here may have a remedy against his representative Ms Stacey, who appeared on his behalf at the preliminary hearing. I express no view as to whether or not he does have a remedy. What is absolutely clear to me is that that is an irrelevant consideration for me in deciding whether or not to grant this application.[19]In summary, I draw a distinction between an application for leave to amend a Notice of Appeal to add a point which was not taken and therefore not determined at a preliminary hearing and an application to add back in a point which was considered and dismissed at the preliminary hearing. It seems to me, as between these parties that this Appeal Tribunal has ruled on the question of a discriminatory dismissal and has ruled firmly in favour of the Respondent. That issue should not, in my judgment, be re-opened by the stratagem of an application for leave to re-amend in circumstances where the original application to amend the Notice of Appeal to add ground 3 was dismissed by Judge Hicks, who struck out that ground of appeal. Accordingly I shall dismiss this application.