MR F I OMOREGIE v HM CUSTOMS & EXCISE [2000] UKEAT 786_99_1904

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 786_99_1904Case No Appeal No. EAT/786/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR F I OMOREGIEAPPELLANTHM CUSTOMS & EXCISERESPONDENT
Before
Mr Justice LindsayDate 19 April 2000
[1]APPEARANCES For the Appellant IN PERSON For the Respondents MR M LEY-MORGAN (of Counsel) Instructed By: Solicitors Office Civil Litigation Dept Customs & Excise 6th Floor East New Kings Beam House 22 Upper Ground London SE1 9PJ MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of a full hearing the appeal of Mr F.I. Omoregie in the matter Omoregie against Her Majesty's Customs and Excise. Mr Omoregie has appeared before us in person today and the Customs and Excise have appeared by Mr Ley-Morgan. The case below concerned the period, after the events complained of, within which a complaint has to be made if the Employment Tribunal is to have jurisdiction and the associated question of the ability of the Tribunal, in all the circumstances, to extend that time in certain cases. The statutory provisions in play, which we will take to be read, are the Race Relations Act, section 68 (1) and 68 (6) and the Employment Rights Act 1996, section 111 (2). We will not read those out but they are in our mind.[2]The background to the matter begins with December 1989 when Mr Omoregie began to work for the Customs and Excise. He was there for a number of years but on 30 March 1994 he was dismissed and the Customs and Excise purported to dismiss him under what are called "Inefficiency procedures".[3]In June 1994 Mr Omoregie's Union requested some documents from the Customs and Excise, largely of a statistical kind, and it was hoped on his part and his Union's part, no doubt, to show, by reference to statistics, that he had not been inefficient within the ordinary practices and guidelines of the Customs and Excise on that subject.[4]On 12 July 1994 the Customs and Excise said that that request for information was being considered. On 15 November 1994 he was told that the information was not available. On 20 December 1994 there were the findings of the internal Civil Service Appeals Board. In later hearings (and the relevant hearing is the hearing, as to which there is an appeal) Mr Omoregie accepted that at that time racial discrimination was already a matter in his mind in the sense that it was possibly being exercised against him.[5]It is worth pausing to see how the Civil Service Appeal Board describes itself. It calls itself "An independent appeals body comprising three people sitting together; either the appointed Chairman or Deputy Chairman and two members, one from the Official Side panel and one from the Trade Union panel. It operates without undue formality". This is a quote from a letter of 16 December 1997 in our papers, written on behalf of that Board.[6]On 13 July 1995 there was a disciplinary appeal decision in Mr Omoregie's favour and it led to compensation being paid to him. We mentioned that there had been a request outstanding for information that had met ultimately with the answer that it was not available but then, in December 1995, it seems accompanied only by "with compliments" slip, the information came through the post to Mr Omoregie. He then asked the Civil Service Appeal Board to reopen his case. There was considerable delay in the Board answering his request. Mr Ley-Morgan, for the Customs and Excise, takes the acceptable technical point that the Customs and Excise are in no way responsible for the Civil Service Appeal Board's delays. That obviously, is correct. But, for all that, it is profoundly unsatisfactory that the matter should have taken so long to be responded to. Mr Omoregie had written to the Board on 2 April 1996 and the Tribunal found that he did not receive a response until March 1997.[7]Mr Omoregie went to a Solicitor. We have in our present papers a letter from Martin Shepherd & Co, Solicitors, of 25 March 1996. I will not read the whole of the letter, but it looks as if it is written by a Mr Geraint Rees of that firm and he says:
"I do not have sufficient information as to the constitution or powers of the Civil Service Appeal Board to know whether there is any possibility of reopening its considerations but on general principles consider that it is in fact most unlikely that any Court or Tribunal would now be prepared to reopen a matter of this kind unless provided with substantial new evidence which could not have been available to the original Tribunal and which, if it had been so available, would manifestly have produced a different result. As indicated above, I am not convinced that the new statistical information which has apparently now become available would sufficiently assist."
And, in effect, he says that he cannot take the matter any further under the Legal Aid Green Form Scheme. That, as I said, was 25 March 1996.[8]Further time passed and Mr Omoregie, as he describes it, went off on a tangent. We have seen letters to his MP and letters to senior figures in the Civil Service. On 30 November 1998 there is a letter from the Head of the Civil Service refusing to intervene. It is a letter from Sir Richard Wilson, Secretary of the Cabinet and Head of the Home Civil Service and at the end of the letter it says:
"My judgement is that there is nothing further to be gained by this correspondence and that you should now regard this matter as closed."
Mr Omoregie's IT1 describes the letter as "crystallising the racial discrimination against me".[9]On 25 February 1999 Mr Omoregie's IT1 was received by the Tribunal. It claims racial harassment, unfair dismissal and racial discrimination. On 18 March 1999 the Customs and Excise wrote a letter that, amongst other things, asked for a hearing of a striking-out application. March 18 was, I apprehend, the last of 21 days from 25 February 1999, so to that extent it was within time to be regarded as a Notice of Appearance by a Respondent. The letter of 18 March said, amongst other things:
"I refer to the above matter and write to respectfully request that the Tribunal list the above matter for a preliminary hearing for the Respondents to make an application to strike out the Applicant's claim on the grounds that it has been made out of time. Counsel estimates such a hearing would take about ½ day."
And on the second page, the last paragraph:
"The Respondents also hereby formally apply for an extension of time in which to lodge their Notice of Appearance until 14 days after the determination of their application to strike out (in the event that their application is refused). The Respondents have instructed Counsel in this matter. The papers to be considered are substantial and the Respondents would wish to avoid incurring the expense of Counsel settling the Notice of Appearance until the outcome of the preliminary hearing and therefore the necessity for such a Notice has been determined."
The Tribunal responded to that on 19 March 1999 with a letter that said, to the Customs and Excise:
"Your fax of 18 th March 1999 has been referred to a Chairman of the Tribunals who has instructed that it be accepted as a Notice of Appearance to the above application."
And that letter was sent, not only to the Customs and Excise but also to the Commission for Racial Equality, who presumably had taken over the case on Mr Omoregie's behalf.[10]The hearing was on 27 April 1999. Mr Omoregie was in person and Mr Ley-Morgan for the Commissioners of Customs and Excise. On 19 May 1999 the decision was sent to the parties. It was a decision of the Tribunal at London (North) under the chairmanship of Mrs R.S.L. Martin. She was sitting with Mr Goldwater and Mr Gibbs. The decision is wrongly dated 27 April 1998 as to its hearing but it manifestly should have been 27 April 1999 as the hearing date and 19 May 1999 as the date on which it was sent to the parties. The decision was unanimous and it was that "The Tribunal has no jurisdiction to hear the Applicant's complaints of unfair dismissal and race discrimination since they are out of time" and that is a reference back to the statutory provisions to which we earlier referred.[11]The Tribunal, looking at their decision, was plainly fully aware of the different test that the statutory provisions provide as to unfair dismissal on the one hand, and racial discrimination on the other. In their paragraph 3 they say:
"We have started from the proposition that for complaints of unfair dismissal and race discrimination the time limit is a period of three months from the date on which the complaint arose. The jurisdiction relating to unfair dismissal gives the Tribunal a discretion to extend that time limit on the grounds that it was not reasonably practicable for the Applicant to lodge his claim within three months. The discretion within the Race Relations Act 1975 is to allow the complaint to proceed if it is just and equitable to do so."
The facts found by the Tribunal include the following, at paragraph 4 (i):
"The notes of the Applicant's appeal hearing after his dismissal reveal that as early as 1992 the Applicant considered that he had been the subject of racist comments. A little later, in paragraph 4 (ii): "
He also seems to have appealed on the grounds that his dismissal was racially motivated. We have not seen his letter of appeal but we have seen the Board's findings of the hearing held on 20 December 1994 where issues of discrimination were obviously considered." A little later, in their paragraph 5:
"Following his dismissal, Mr Omoregie did not make any complaint to an Employment Tribunal. The explanation given to us was that he had been advised by his trade union that without the statistical information which was not forthcoming no Tribunal claim would succeed."
[12]The Tribunal then set out his subsequent receipt of the information which we have mentioned, his consultation with his MP, his request for a reopening of his case by the CSAB, his letters to the Treasury, his letters to the Head of the Civil Service and then, in their paragraph 7, they say of the answer to that:
"On 17 May 1998 he wrote to the Head of the Civil Service and received a reply on 30 November 1998 telling him that the Civil Service considered the matter closed. It was at this stage that the Applicant then approached the Commission for Racial Equality and took private legal advice, as a result of which he has lodged his Originating Application."
The Tribunal set out Mr Omoregie's submission that time truly ran from 30 December 1998 and their answer to that was this, in paragraph 8:
"However our findings are that at his appeal hearing on 20 December 1994 there was certainly a general discussion about racial harassment, even though Mr Omoregie did not make a direct connection between his dismissal and any possible racial harassment. At the Tribunal he indicated that racial harassment and/or discrimination was in his mind at the time."
Then in reference to December 1995 the Tribunal said this, in their paragraph 9:
"The next event after his appeal was the disclosure of the information previously withheld from him where he is alleging to us that his managers had acted dishonestly. Our finding is that the possibility of race discrimination must have crystallised in his mind at that stage, given his previous suspicions. We do not find it credible that through all the subsequent efforts to have his case re-opened internally the real possibility of race discrimination had not entered his mind."
[13]So far as concerned unfair dismissal, where the test is reasonable practicability of an issue of proceedings (and again, we take as read the statutory provisions to which we earlier made reference) the Tribunal said, in paragraph 10:
"We therefore have first considered whether it was reasonably practicable for him to lodge a complaint of unfair dismissal within a time limit which either ran from 30 March 1994 or at the least December 1995 when he received the documentation, given that he had been advised by his trade union that that was the crucial piece of information. We find that it would have been reasonably practicable and we therefore hold that we now have no jurisdiction to hear his complaint of unfair dismissal."
[14]As for race discrimination the Tribunal then sets out both side's submissions and in their paragraph 13 they set out a list of factors which they regarded themselves as required to consider, including the relative prejudice to each side on either granting or refusing an extension of time, the length of delay, the reasons for delay and what effect the passage of time was likely to have on the availability and the quality of evidence. They say:
"We have considered all these criteria and have weighed the prejudice which would occur to either party should we decide to allow this application to proceed or to refuse this application. We are particularly concerned at the length of the delay which has occurred between the time when the allegations of race discrimination are alleged to have occurred and today's date. We have appreciated that delay is not the only criteria and that had the delay been largely that of the Respondents we might nevertheless have allowed this case to proceed. However we have come to the conclusion that it is not only not in the Respondents interests for this case to be allowed to proceed now but that it is highly likely that given the length of time since the events which the Applicant wishes to rely on actually happened that he too would be prejudiced by that delay and that it would therefore in terms of both parties not be just and equitable to allow this application to proceed."
[15]On 14 June 1999 there was a Notice of Appeal that relied upon one ground only. It looks as if it was drawn by Mr Omoregie himself; it is in handwriting. It says:
"The discretion to grant an extension of time under the 'just and equitable' formula allows for situations where the delay in commencing proceedings is due to reliance on incorrect legal advice, even though this would not enable an extension to be granted under the stricter 'reasonably practical' test: Hawkins v Ball and Barclays Bank [1996] IRLR 258 EAT."
[16]Then the matter came on, as these things do, for a preliminary hearing at the EAT; that was 29 October 1999. Mr Omoregie was represented by Counsel under the ELAAS Scheme and Counsel raised, on his behalf, a number of further alleged errors of law in the decision of the Tribunal and the preliminary hearing allowed them all to go to a full hearing. The Notice of Appeal was never amended.[17]Strictly speaking, it is only the original Notice of Appeal which is before us, but we shall treat it as if the full form used by Counsel at the preliminary hearing was before us, and we mention this flexible approach because one of Mr Omoregie's points is highly technical and, if we had adopted the same degree of technicality, he would have been limited only to what he had said in his original unamended Notice of Appeal. We will revert later to the technical point which we touched on a moment ago but will go now through the various grounds of appeal, which were identified by Counsel at that Preliminary Hearing. They have not been abandoned by Mr Omoregie this morning. Some have been further orally amplified, some not, but, in justice to him, we think we need to go through all of the grounds which were permitted to go forward, even though some have not been ventilated by Mr Omoregie this morning. Looking first at paragraph 5.2, having put aside paragraph5.1 which is the technical point to return to later, paragraph5.2 says this:
"The Tribunal failed to consider adequately whether it was 'just and equitable' to extend time for the presentation of the Originating Application. Failed to adequately consider reliance on incorrect legal advice. See also first ground of application for review."
[18]I should have mentioned that there was an application for a review, which was declined, but there is no appeal against that declining of a review and accordingly it has not figured before us. There is no indication in the reasoning of the Tribunal that the point about incorrect legal advice was explored in any detail below. Indeed, there is a dispute between Mr Omoregie and Mr Ley-Morgan as to whether the Solicitor's letter from which we have quoted was, in fact, laid before the original Tribunal. It was manifestly laid before the Tribunal at the time of the review but there is a dispute as to whether it was there at the original Tribunal.[19]It is difficult for us to deal with because of that dispute. We cannot simply assume one way or another. We certainly cannot assume, if the document was indeed laid before the original Tribunal, that they did not have it in mind. There is a well known dictum in the case Retarded Children's Aid Society Ltd v Day [1978] ICR 437 that one cannot assume in Tribunal affairs that a matter has not been in mind simply from the fact that it is not expressly mentioned. But, in any event, a difficulty arises in relation to the letter. It is far from clear to us that it was bad legal advice and, in any event, it was late - on in the sense that it was as late as 25 March 1996. We do not feel able to identify an error of law (and it is to be emphasised that it is only errors of law that we are able to deal with) in relation to the allegation about a failure adequately to consider that Mr Omoregie had been given incorrect legal advice. It is far from clear that it was developed below, that the advice was incorrect, or that the considerable time delay between the point of dismissal and the date of the advice could not be taken into account by the Tribunal.[20]Another point taken by Counsel, on behalf of Mr Omoregie, in the expanded preliminary hearing paper, is at 5.2.2 and it runs as follows:
"There was no adequate consideration of evidence to show the extent to which the evidence in the main case would have become too unreliable by the delay. The cogency of the actual evidence was not properly tested. All the line-managers involved in the decision to dismiss are still employed by the Respondent. Cogency of evidence has not significantly diminished with the passage of time."
And then, says the paper, the Tribunal wrongly took into account the relevant issue of prejudice. We will come on to that point later.[21]The Tribunal plainly did have in mind the effect on the evidence of the passage of time. They expressly refer to it. Inescapably the cogency of the prospective evidence was not tested because one could only test it by having the full substantive case being heard by the Tribunal and one would therefore get into the ridiculous situation of having to have a full trial, in effect, to determine whether there was jurisdiction to have a full trial. The Tribunal was entitled to take a common sense view that the events in 1994 and before 1994 might be such that they would be very difficult fairly to investigate and to adjudicate upon. In any event there was no indication in evidence from Mr Omoregie that the evidence which would have been available at a substantive hearing had not been impaired by the passage of time. We are not suggesting that that would the easy evidence to adduce, but there was none.[22]The Tribunal looked into the passage of time and its effect and concluded, as we have seen. In fact the Commissioners of Customs and Excise purport to identify three line managers of Mr Omoregie who are now no longer employed by the Commissioners of Customs and Excise. Whether that is right or wrong we cannot say but that the Tribunal considered the passage of time and considered it as fully as they could do, without actually hearing witnesses, seems to us to be clear. There is no error of law in that area.[23]Another point is this. It is identified at 5.2.3:
"There was no adequate consideration of evidence to show the extent to which the Respondent either did or did not co-operate with any requests for information."
This, presumably, refers to the passage in the decision which says, at paragraph 13 (c), "the extent to which the Respondent either did or did not co-operate with any requests for information". It is quite clear that the Tribunal had the point in mind. It was for them to test the evidence that related to it and to decide what weight should be given to the subject. It is difficult in that case to identify any error of law and we do not regard ourselves as able to find one in that area.[24]The next ground is this, at paragraph 5.2.4:
"The Tribunal wrongly took into account the irrelevant issue of prejudice caused to Mr Omoregie by the delay."
The Tribunal has to consider "all the circumstances of the case" and justice and equity in particular are the very broadest of considerations and they certainly entitle a Tribunal to consider whether a fair trial can be had and the effect on both sides of there not, perhaps, being a fair trial possible. Had the Tribunal not already held that it was not in the Respondent's (that is the Customs and Excise's) interests for the case to proceed, it would perhaps have been strange for them to have barred Mr Omoregie because of the prejudice to him . But, phrased as it was, there seems to us to be no vice in the Tribunal going on to mention that a fair trial was not available to either side. Again we therefore see no error of law in the conclusion reached.[25]At paragraph6.1 and6.2 these points are raised:
"There was no adequate consideration of evidence to show the extent to which the evidence in the main case would have become too unreliable by the delay. There was no adequate consideration of evidence to show the extent to which the Respondent either did or did not co-operate with any requests for information."
[26]We have touched on those already. We have no Chairman's Notes. We therefore cannot say what was or was not the evidence on any particular subject but we do emphasise that fact is very much the Tribunal's own province, including the assessment of the evidence and the weight to be given to particular assertions within it and we are unable to spot errors of law in their treatment on the subjects identified in 6.1 and 6.2.[27]Then finally, before we revert to the technical point which we said we would put on one side for the moment, paragraph 7 says:
"The decision was either perverse in that it was one which no reasonable tribunal, directing itself properly on the law, could have reached, or alternatively, was one which was obviously wrong."
Perversity is a very difficult case to make out and we simply say that, here, it has not been made out.[28]So far therefore, we have identified no error of law and we come back now to the technical point which Counsel appearing under the ELAAS Scheme had identified for Mr Omoregie at the preliminary hearing. It was as follows, in paragraph 5.1:
"That the Tribunal failed to apply r3 of the 1993 Rules in that a Respondent which fails to enter a valid Notice of Appearance (for which see r3 (1) (a)-(c) is, except in five respects (see r3 (2)), debarred from taking any further part in the proceedings. Except for the actions specified in r3 (2), the Respondent is no longer considered to be a 'party' to the proceedings. The Respondent's Letter to the Tribunal dated 18 March 1999 does not meet the essential requirements of r3 (1) (c). The substance of a sufficiently particularised ET3 is a relevant consideration to the exercise of the Tribunal's discretion to extent time for the ET1. The Respondent may only apply for a preliminary issue hearing under r6 if it was a 'party' at the material time."
It is a technical point and none the worse for that.[29]The Commissioners' letter of 18 March to the Tribunal included the passages which we have already quoted (we do not need to quote them again) and it met with the answer, which we have already mentioned, that it was accepted as a Notice of Appearance on behalf of the Employment Tribunal. Was there an error of law in what seems to have been a convenient and practical approach on the part of the Employment Tribunal? Some degree of latitude is open to Tribunals: see Employment Tribunal rule 13 (1). Taken absolutely literally rule 3 of the Tribunals Rules would have consequences that could fairly be described as fatuous. Thus, for example, if a Respondent failed to give his full name simply by omitting (let's say) an intervening middle forename, he would be barred from taking part in proceedings save in the five particular respects specified in rule 3 (2) because he would not have given his full name. So also, if he gave an address which was workable in the sense that, if used, papers were to get to him but if, for example, he left out his full post code or left out the name of the town, which was identified by the post code, it could be said that if rule 3 had to be taken absolutely literally that, as he had not given his full address, then the document was not a Notice of Appearance. There is another example of a situation that could only be described as silly. A Respondent would be able, under rule 3 (2) (b) to ask for Further and Better Particulars of the Applicant's claim under rule 4 (1) (a) before entering an appearance but he would not be entitled to enter an appearance which said that he was unable to set out sufficient particulars to show on what grounds he resisted until he received Further and Better Particulars of the Applicant's claim.[30]Those are indications, there might be others, of silly situations which could be arrived at if rule 3 was mandatory and had to be, in all circumstances, taken absolutely literally. To avoid such silly conclusions the Tribunal can use rule 13 (1) to allow a document to be treated as a Notice of Appearance, even if it fails in some minor respect to comply with the rule and that is what the Tribunal sensibly did here in its letter of 19 March, indicating that the letter of 18 March would be accepted as a Notice of Appearance. Once the Tribunal had taken that view then the Commissioners of Customs and Excise became a party for all purposes and accordingly were able to make a request for a hearing under rule 6 which, it might be added, is a matter which the Tribunal itself, of its own motion, could have requested whether or not the Commissioners of Customs and Excise had at the time become a party.[31]We are comforted in this approach by noticing the decision of the EAT under Slynn J (as he then was) in Seldun Transport Services Ltd v Baker [1978] ICR 1035. In that case a Chairman had held that a document which failed to state the grounds of resistance was not a Notice of Appearance but the Employment Appeal Tribunal held that the requirement of the rule, which was then a little different but not materially different, was merely directory, not mandatory. The Chairman, so held the EAT, had been wrong not to treat the document as a Notice of Appearance. Such an approach makes it impossible for Mr Omoregie to say that the Tribunal in our cased erred in law in treating the letter of 18 March as a Notice of Appearance. That, as it seems to us, disposes of the technical point. Mr Ley-Morgan has in his skeleton other answers but one answer seems to be sufficient and we have now, as it seems to us, dealt not only with the points that Mr Omoregie has addressed us on this morning but on all the points raised or permitted to be raised, in the skeleton argument that was given a blessing by the preliminary hearing of the EAT.[32]It is not a happy case in the sense that, if one separates out the Customs and Excise from other limbs of the Civil Service, as Mr Ley-Morgan rightly says is possible, then the picture is that Mr Omoregie's case fails at the threshold for the reasons given by the Tribunal. However, it does seem to us that the whole chronology does have within it great lapses of time on the part of the Crown generally, looking at matters such as the Civil Service Appeal Board's long delays, which make for an unhappy feeling that Mr Omoregie has not been as fairly treated as one might reasonably expect. However, that is not a matter for us. What we do have to concentrate on is whether there was error of law (and we do emphasise of law ) in the Tribunal's decision and, for the reasons we have given, we have been unable to find any. Accordingly, we must dismiss the appeal.