MR P MOORE v UNIVERSITY OF GREENWICH & OTHERS [2000] UKEAT 745_00_2306

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 745_00_2306Case No Appeal No. EAT/745/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P MOOREAPPELLANTUNIVERSITY OF GREENWICH & OTHERSRESPONDENT
Before
Mr Justice LindsayDate 23 June 2000
[1]APPEARANCES For the Appellant THE APPELLANT IS IN PERSON. For the Respondent MISS SHALDON (Of Counsel) Instructed by: Messrs Langley & Co Solicitors Sun Court 66 Cornhill London EC3V 3NB MR JUSTICE LINDSAY (PRESIDENT) We have before us an interlocutory appeal by Mr Philton Moore who, as applicant, has a case against the University of Greenwich. The appeal lies against a decision of the Chairman indicated by a letter of 8 June and also, says Mr Moore, against an earlier indication by a letter of 26 May. We need to say a little of the procedural background, although I am bound to say that we are nothing like as fully in the picture as one would have chosen to be because Mr Moore's IT1 and the 1T3, an earlier racial discrimination questionnaire and the earlier supply of further and better particulars by Greenwich were not put in front of us, as they really needed to be, well before the hearing but at the hearing itself as the matter opened. The position is that there was an IT1 lodged by Mr Moore on 3 November 1999. In box 1 "please give the type of complaint you want the Tribunal to decide."it says:
"Victimisation/Discrimination in the selection of employment."
To that extent it was rather less than to specific. Box 11 "please give details of your complaint" it says:
"Please see separate sheet."
And then there are some two and ½ pages of typed script annexed there to by which Mr Moore more fully stated his complaint. Paragraph 1 says: 1. "The Applicant is of Afro- Caribbean origin and man of colour. And paragraphs 3 & 4 say: 3. "The Applicant's claim/application was brought in relation to discrimination and or victimisation, in that the first and second Respondents acted contrary to sections 1, 2 (1) and 4 (1) of the Race Relations Act 1976 (" the Act") and the Applicant's claim is for discrimination and/or victimisation contrary to the said sections 1, 2 (1) and 4 (1) of the Act, by refusing or omitting to offer the Applicant an interview for the post of Lecturer (Junior)." 4. "The Applicant alleges unlawful discrimination because he received less favourable treatment than a white person and/or was victimised by reason that he had made previous complaints against the First Respondents and its employees alleging matters amounting to contravention of the said Act."[2]There was a comprehensive Race Relations Act questionnaire, which was answered by the University on 1 December 1999. There are schedules and annexures to it; a great deal of information is given. Then there was a request for further and better particulars by Mr Moore; we have not got the request itself but we have the replies which incorporate the request and, again, there is a great deal of information given in relation to the University's case in those replies which were given on 31 March 2000. There is then something of a gap because nothing appears to have been done until 19 May 2000, although, before going further, it might be appropriate to refer back to the IT3 which at paragraph 7.1 had said: 7.1 "The University rejects the claim that Mr Moore has been subject to a discrimination on the grounds of his race, or that he has been victimised by reason that he made previous complaints against the University alleging contravention of the Race Relations Act." Plainly the University had understood the nature of the complaint, as indeed was inevitable, as being a complaint of racial discrimination. On 19 May, after the gap since 31 March, Mr Moore wrote a letter to the Employment Tribunal at Croydon and we will not need to read out the whole of the letter but under the heading 'Application for Ordering of Particulars' he says:
"Would you please make an order requiring the Respondents to answer the attached questions in every particular. The answers to the questions are necessary for a full and proper consideration of the Applicant's race discrimination claim."
Under the heading 'Application to Amend' the letters says:
"The Applicant wishes to amend his IT1 to particularised/include a claim for sex discrimination and relies on the EAT's guidance on this matter given in Selkent Bus Co Ltd v Moore [1996] ICR 836 ."
And a little later that paragraph refers to a case called Quarcoopome.[3]On 19 May, attached to that, was the request for particulars but, in developing his argument under the "Application to amend" heading, Mr Moores' letter says:
"In other words a claim for race or sex discrimination within time, includes or covers a claim for either of the other under the RRA 1976 or SDA 1975 respectively." "
The Applicant therefore respectively asks the Tribunal for leave to amend to include all particulars on sex discrimination. The Applicant only became aware of the alleged sex discrimination after receiving the Respondents replies to further and better particulars" which of course was as long before as 31 March. The second request for further and better particulars." attached, sets out 66 questions, which we will have to return to generally and to consider some of them in more detail. On 26 May the Tribunal answered the letter and request for particulars of 19 May saying as follows:
"There is insufficient time to consider these various applications for orders before the hearing. The Chairman shall consider these matters at the outset of the Full Merits Hearing, and give such directions as are necessary for the fair and expeditious disposal of this case."
The hearing, it should be said, has been for some time fixed for 27 June, next Tuesday. It is important to notice that this letter of 26 May does not decline any application or refuse any application; but simply says that the matters will be considered at the outset of the Full Merits Hearing. In other words the applications are to be adjourned rather than having been ruled upon on 26 May.[4]On 5 June Mr Moore wrote to the Tribunal asking that that decision should be reviewed and also adding for the first time, it seems, a request for witness orders:
"The Applicant requests that the Tribunal issue a subpoena against the following witness, all of whom are employees of the 1 st Respondent's Law School and or, were part of the shortlisting panel, ordering them to produce document at the hearing on 27 June 2000. The witnesses are: 1) Ms Kim Everett 2) Mr Mark Polowski 3) Mr Edward Philips 4) Professor David Chambers 5) Professor Bensted"
The application to amend was returned to because this letter of 5 June says this:
"In the Quarcoopome case this Tribunal concluded than an originating application which makes a claim for race discrimination (and therefore by analogy sex discrimination) incorporate any claim underlining that for direct or indirect race (or sex) discrimination and victimisation."
And a little later:
"In other words a claim for race or sex discrimination within time, includes or covers a claim for either of the other under the RRA 1976 or SDA 1975 respectively."
Once again the Applicant therefore respectfully asks the Tribunal for leave to amend the claim to include all particular sex discrimination." It is to be noted that there is no verbatim specification of precisely what amendment is sought to be made and no affidavit to explain why it had not been made earlier.[5]If the information which led to Mr Moore's view that a claim for sex discrimination was appropriate was complete on 31 March, then there was obviously a gap, which needed explaining. On 8 June the Tribunal wrote a letter to Mr Moore dealing with the various points raised, or at least some of them. As to the request for further and better particular the letter says this:
"The Chairman is not prepared to grant the order that you seek concerning replies to your enquiries – your questions relate to matters of evidence and can be dealt with at the hearing."
So far as concerns witness orders it says this:
"As to the request for witness orders your request is refused. You have not stated what evidence the witnesses can give, neither do you confirm that you requested them to attend voluntarily, also you will be aware that it is not possible to make the witness order in respect of a witness who you wish to cross examine."
So far as the amendments are concerned the letter says this:
"Your application to amend is refused – your understanding of the judgment in the Quarcoopone case does not coincide with the Chairman."
At the foot of the 1 st page of the letter, it says:
"In the meantime the Chairman expects an agreed bundle to be prepared and that witness statements for all witnesses including the Applicant and named Respondent should be prepared and exchanged at least five days before the hearing."
[6]On 16 June the Chairman of his own motion made an order for the production of documents against the University, requiring that on or before the hearing date on 23 June Greenwich University should produce:
"All completed assessment scoring sheets, completed by each member of the shortlisting panel in respect of the assessment of the Applicant and of all candidates who were successful in the shortlisting."
And the letter to Greenwich has the usual provisions dealing with the case, as it would be, if that was not obeyed.[7]The University on 22 June put in a straightforward simple sheet indicating that it would be resisting Mr Moore's appeal, which is dated 20 June. Mr Moore's Notice of Appeal seeks to appeal the letter of 26 May and 8 June, refusing, as it says:
"To order the Respondents to reply to particulars of questionnaire and request for further and better particulars and to allow amendments to the Appellant's IT1."
On the face of things the question of witness orders was not going to be appealed. Attached to that Notice of Appeal is a typescript of a number of pages which specify Mr Moore's grounds of appeal and we have today heard Mr Moore (who is, himself a Lawyer) in person and we have heard Mr Sheldon for the University of Greenwich.[8]Whilst taking the subjects separately and dealing first with amendment, Mr Moore's argument depends upon a proposition sought to be derived from the Selkent Bus Co case which he had brought our attention to at [1996] ICR 836 and also upon the case that we have already referred to, Quarcoopome [1995] IRLR 353. Dealing first with Quarcoopome which is a case here at the Employment Appeals Tribunal, it held that a claim which was described as being a claim for racial discrimination thus incorporated both direct and indirect forms of racial discrimination and even included victimisation on racial grounds. It, the Quarcoopome case, cannot possibly support an argument that a claim for racial discrimination, without more, includes a case for a claim for sex discrimination and the Chairman was, it seems to us, undoubtedly right to decline amendment based on the Quarcoopome case.[9]But today, Mr Moore emphasises an aspect of the Selkent Bus Co case where in a passage that begins at the foot of 841 and continues over the top of 842 Mr Mummery J at the Employment Appeals Tribunal says this: No new cause of action "The proposed amendment did not contain any new cause of action. The claim in the originating application was for "unfair dismissal." The applicant invoked the statutory right conferred on him by section 54 of the Employment Protection (Consolidation) Act 1978. He did so within the time prescribed by section 67 of the Act. It was therefore a valid application. The decision of this appeal tribunal in Dodd v British Telecommunications Plc. [1988] I.C.R. 116 was authority for the proposition that it was not fatal to the validity of an originating application to fail to specify which Act was invoked. Thus, in a discrimination case, an effective complaint, which would stop time running, could be made without specifying whether the discrimination complained of was on the ground of race or sex. The nature of the applicant's complaint was sufficiently identified for the purposes of identifying a cause of action. Any deficiency in the details of the complaint could be cured by the provision of particulars of a later date. The more recent case of Quarcoopome v Stock Shop Holding Ltd [1995] I.R.L.R. 353 illustrated the same point in relation to the complaints of direct and indirect discrimination. A complaint could be validly made to an industrial tribunal of race discrimination, without identifying initially the different ways in which it was alleged that the discrimination had occurred. An application to add a compliant of indirect race discrimination was not therefore out of time. The initial complaint of race discrimination covered any case in which discrimination on that ground was alleged, whether direct or indirect." Whether the Selkent Bus case truly can be taken to be authority for the proposition that would seem to be supported by the first 3 or 4 lines on page 842 is debateable. There the particular words most of all selected by Mr Moore are these:
"Thus, in a discrimination case, an effective complaint, which would stop time running, could be made without specifying whether the discrimination complained of was on the ground of race or sex."
It may fall to another case to decide whether that goes too far but what it certainly does not say is that where a complaint has in some detail specified that it is of racial discrimination, it can still be taken to be a claim for sex discrimination. We have already read the relevant passages from the IT1 that made it quite plain that, although Box 1 and Box 11 do not themselves make the position clear, the attached papers make it quite clear that what was being claimed was and was only a case for racial discrimination and racial victimisation, claims certainly unrelated to sex discrimination.[10]We accordingly take the view that the Chairman was quite right to refuse amendment on the argument that was addressed to him. True it is that he does not in terms mention in what respects he had considered the Selkent case, but if had considered it, he could not possibly have come, as it seems to us, to any other answer than that a sex discrimination here would be a new case. This is not to bar Mr Moore from bringing a case of sex discrimination, either by way of an appropriate specified amendment or by the lodging of a fresh IT1. He can seek to do that if there is any case for such a complaint. That new specification, be it by amendment or by a fresh claim, is likely to fall foul of s.76 (1) of the Sex Discrimination Act, which provides a time bar. However Mr Moore can claim (if there are any facts on which he can support such a claim) that escape is offered to him by reason of s.76 (5) or s.76 (6) (b). Mr Moore is entitled to frame an amendment or to frame a fresh claim in sex discrimination and to ask for an extension of time under s.76 (5) or to mount a claim under 76 (6) (b), but that he has not yet done. As he has not yet done it his request to the Tribunal to be permitted to do it has not yet arisen; there is no material on which we, as a court that listens only to appeals, can operate. Although amendment was quite properly ruled out by the Chairman for the reasons we have given, ultimate rejection is still not decided upon in the sense, as we have mentioned, that it is open to Mr Moore to actually claim for an extension of time or under s.76 (6) (b) in the way we have mentioned.[11]Turning to witness orders, although he was declined the witness orders that he asked for Mr Moore, obviously recognising that the Chairman had not had material on which an exercise of the discretion in his favour could fairly have reached, does not press that subject before us and we therefore heard nothing on it. It is right for us to indicate, though, that when a witness order is pressed for it is entirely proper, in our view, for a Chairman to enquire what it is that the witness is thought to be able to say that is relevant to the case, whether approach has been made to the witness for his or her voluntary attendance before the need for compulsion arises and also whether or not what the witness might say that is of relevance could be better dealt with simply by written question and answer, which is provided for as a possibility in the rules. But we need say nothing more on that subject because it was not pressed.[12]That leaves the question of Mr Moore's further and better particulars. There have already been, by way of the comprehensive race relations act questionnaire and the very full particulars given, as we have indicated, on the last day of March, a great deal of material amplifying the nature of the University's case. Despite that (or, to some extent because of it) Mr Moore raises these 66 further questions. It is very difficult to rule upon a request for further and better particulars without a thorough going grasp of the procedural history of the case and of the pleadings or papers that stand akin to pleadings, the IT1 and IT3, the earlier request for further and better particulars and the actual answers to those further and better particulars. But even approaching it in a state of comparative unknowing, because we did not have the earlier papers delivered, we could see that a number of the request for particulars were argumentative or went only to evidence or seemed to be irrelevant. Perhaps an extreme example would be question 52: 52. "Does the University accept the Steven Lawrence Inquiry Report's definition of "institutional racism"? If not why not?"[13]And many of the questions are merely serving to point out to the Respondent University possible weaknesses in the answers they have given already. Tactically it is not a prudent thing, of course, to do that, because it is far better to cross examine a party that does not know that some particular complaint is about to be made to him or her and Mr Moore's 66 questions in some respects simply give notice to the University of lines of attack that he is likely to take. However, that really is a tactical point that does not greatly concern us, although it ought, perhaps to have been borne in mind by Mr Moore.[14]But there are a number of questions which seem to us that are not capable of being answered at first blush simply by saying, as the Chairman said, that they are matters of evidence. Further, we do see it as appropriate, in a case of race discrimination, to take a fairly generous or liberal view of what is relevant and what is not merely a question of evidence. In race discrimination cases it is accepted - and perhaps the leading case in the area that needs to be remembered is King v Great Britain China Centre - that it is an exceptionally difficult thing to prove as no one ever throws up their hands and says: "Yes, I admit I was racially prejudiced" or anything on those lines and very many of the cases come to the conclusions that they reach by drawing inferences from surrounding circumstances. Surrounding circumstances, therefore, become relevant and admissible and important to a degree which is not common in other types of jurisdiction and so a relatively liberal response is not inappropriate. Also of course, we have here a person who is in person as a litigant, even though he has legal skills beyond those of the man in the street. Again his position points to a degree of liberality in our response.[15]We do not feel that we are in a position strictly to rule as to the propriety or inpropriety of particular questions but we can say and have said that at first blush , there are a number of Mr Moore's questions which seem to us cannot be clearly answered simply by saying that they were matters of evidence, which, as we remind ourselves, was the only ground which the Chairman relied upon. They are the questions 8, 10, 11, 14, 37 and the second sentence of s.53. To those, having heard the parties to some extent, we would add the question which is No.46. We propose to take a rather intermediate course in respect of the answers to those particular questions. So far as concerns all the other questions, we do not overturn in any way the decision of the Chairman, but as to those particular questions, we adopt an intermediate course and that is this: - ? We require the University to prepare and to put in writing the answers to those particular questions 8, 10, 11, 14, 37, second sentence of 53, and No.46. If it so elects, the University may serve all or any of its written answers before the hearing on Tuesday and, indeed, unless it intends to object to answering those questions at the hearing, it should serve its answers as fast as is practicable. Fax obviously is a method that needs to be explored with Mr Moore to see if that is the quickest way of getting the answers through. ? If the University elects not to give answers to all or any of those questions, then it must take its prepared written answers with it to the hearing on Tuesday 27 June. At the hearing on 27 June, the University can, if it so chooses, seek then to argue that all or any of the 6 as to which it has not served answers are such that answers need not properly be given. ? If it does argue in that way, then the Chairman and the whole Tribunal below will be able to deal with the matter much more fully than we can because they will be seised of the whole of the case. They will be able to rule quite untrammelled by our tentative and provisional view that those particular ones were not inappropriate to be ordered. It will be entirely for them to choose whether those are to be ordered or not.[16]The merit of this intermediate position is that if the Tribunal does require answers that have not been already served there will be no need for a further adjournment for the preparation of the answers as the answers will have been prepared already. This technique does not obviate the risk that Mr Moore, on seeing answers that he had not received before, requires an adjournment to deal with them, but that, of course, will have to be dealt with if it arises and by the Tribunal before whom it arises. To that very limited extent only, in relation to further and better particulars, we allow the appeal.[17]Mr Moore has also at several points asked for the disclosure of documents and he mounts an appeal in that respect by saying that the earlier of the two letters of the Tribunal represented a refusal to order disclosure of documents. That, it seems to us, is a misunderstanding of that letter. True it is that in some respects the letter of 19 May asked for disclosure of documents, but the answering letter of 26 May says:
"The Chairman shall consider these matters at the outset of the Full Merits Hearing, and given such directions as are necessary for the fair and expeditious disposal of this case."
This is not a refusal of an application but merely an adjournment of it. Accordingly, in relation to disclosure of documents, there is nothing against which Mr Moore can appeal saved for that adjournment and, given that Tuesday is so close and that the Tribunal itself will be seised of the whole matter, it seems to us entirely appropriate to leave the disclosure of documents to be, as the Chairman suggested, left with to be dealt with at the outset of the full merits hearing. There is, in fact, no decision in front of us in relation to disclosure other than that which is merely an adjournment and it is a misunderstanding of the response of the Tribunal to treat that as if it was a refusal.[18]Our ruling of course, being interlocutory, is not necessarily the last word on the subjects either of particulars or witness orders or amendment. Mr Moore is entitled, if he sees fit, to moveafresh the Employment Tribunal on any of such subjects. He ought to be aware, of course, that if he does press any of them, he may lose the substantive hearing of 27 June and it might put him at risk also, on the grounds of his proceedings or his conduct being unnecessary or unreasonable, of his incurring an award of costs against him. We simply mention that such matters need to be borne in mind. It only remains for us therefore to remind the parties of the direction of the Chairman on 8 June that the Chairman expected that an agreed bundle would be prepared, with witness statements from all witnesses, including the Applicant and named Respondents, and be exchanged at least 5 days before the hearing. We are within that range already and, if it is not done, then, again, the hearing of 27 June could be jeopardised. But, as we see it at this stage, so long as the parties put their backs into preparation for the hearing on 27 June, there is no reason why it should not go ahead.[19]Accordingly our only response in terms of allowing or refusing the appeal is to allow the appeal as to further and better particulars only, and only in the limited way that we have indicated and to make provision for the preparation of answers to those particular questions we have identified and in the way that we have described. Beyond that we do nothing further. We add this: one of the documents which Mr Moore has received is plainly not the whole of the particular document and yet no particular claim is made that the other parts of the document are embarrassing or prejudicial or entitled to privilege or anything on those lines; it is a document headed 'Appendix 5' Shortlisting Lecturer/Senior Lecturer Posts Law; School Professor A Bensted and it is quite plain from the bottom right hand corner of it that it continues at least into a page 2, and it could be on page 2 that there is an indication it goes onto further papers. We see it as appropriate that the rest of that document should be disclosed.[20]We shall make an order that it be the complete document is produced on morning of 27 June, unless the Respondents then move the Employment Tribunal to the contrary.