MRS F OPARA v LIFE OPPORTUNITIES TRUST [2000] UKEAT 887_00_1611

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 887_00_1611

Case No Appeal No. EAT/887/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS F OPARAAPPELLANT

LIFE OPPORTUNITIES TRUSTRESPONDENT

Before

His Honour Judge D M Levy

Lord Davies of Coity

Date 16 November 2000

[1]APPEARANCES For the Appellant FRED EDWARD JNR Non Practising Counsel Instructed by Cain & Abel Law Firm 239 Missenden Inville Road London SE17 2HX JUDGE LEVY QC We have been hearing for a considerable time today, an Ex Parte Application of the Appeal by Mrs Opara ("the Appellant") in proceedings commenced by her in an Employment Tribunal on 25 October 1999 against her employer, Life Opportunities Trust. There was a hearing at London (North) on 10 and 11 May 1999 and the decision was promulgated on 26 May 1999.

[2]The unanimous decision of the Tribunal was that the complaint of equal pay be dismissed on withdrawal by her. Her complaint of breach of contract was dismissed because there was no case to answer. Her complaint of unfair dismissal failed, as did her complaint of race discrimination. Mr Edwards Junior of Counsel appeared for the Appellant before the Employment Tribunal and he has appeared before us today.

[3]The Notice of Appeal identifies 7 grounds of Appeal which Counsel developed both in his written and oral submisions. Ground 1 reads:- "The Chairlady erred when she held the Appellant's complaint regarding London Weighting and bank Holiday since 1993 and 1994 were out of time."

[4]This contains two points, first, was the Tribunal entitled to find as a matter of fact that the complaints raised were out of time because of the lapse between the date of payments referred to and the date complaints were raised; and secondly, in the context of unfair dismissals, even if she was entitled to raise the complaints at all, whether they were such that they could have been raised in the context of racial discrimination.

[5]From the Tribunal's Decision, we understood that the Tribunal, having held that the complaints had been raised out of time to permit the Appellant a remedy, held they could not reconsider the complaints in the context of the claim of discrimination.

[6]So far as remedy is concerned, having heard submissions from Mr Edwards on this point and having looked at the appropriate law, we consider that the Tribunal was entitled to come to the decision it did, given the length of time which had passed since the instance referred to without complaint made at all in the context of racial discrimination or otherwise. Mr Edwards has tried to persuade us that estoppel of some sort might be applied here but we think that the facts of this case do not entitle the Appellant to raise a case of estoppel and it would be inappropriate to let that ground 1 go to a full hearing.

[7]Ground 2 of the skeleton objects to the exclusion of evidence about a number of incidents. Having considered a number of authorities to which Counsel referred us, we are satisfied that it is arguable that the incidents themselves might properly have been considered and findings made on them as in relation to the discrimination claim, which was dismissed. On the issue of exclusion of evidence, provided particulars are clearly listed in numbered subparagraphs, of evidence it is alleged were wrongly excluded, the appeal should go to a full hearing.

[8]Ground 3 in the skeleton was abandoned by Mr Edwards before the Appeal was called on. Ground 4, we consider, re-treads the issues of Ground 2 and should be fitted into the matters of complaint therein raised.

[9]Ground 5 arises from consideration, in paragraph 24 of the Extended Reasons of a remark quoted by the Appellant when further particulars of a complaint was made. With reference to a patient, an Assistant Manager of the trust is quoted as saying to the Appellant:

"do you think your African dad is better than him?"

. When she gave her evidence of the complaint, it may be that the Appellant left out the word "African" though it was contained in other documents. The grounds of appeal quote the words used by the Assistant Manager was:

"whether the Appellant think that her African father was better than a severe mentally retarded resident", when no satisfactory or any explanation was advanced by the maker."

[10]In dealing with the particular incident in paragraph 10 of the Extended Reasons, it is apparent to us that the Tribunal did consider the remarks and came to a conclusion that there was no racial motive within it. However, if the remark 'Do you think that your dad is better than him?' was considered in the context of other remarks which were alleged to contain racial prejudice, it is arguable that a Tribunal might have come to a different conclusion. If it can be particularised but not otherwise, this complaint we consider is one of the matters which could form a sub-paragraph in the Ground of Appeal which we allow to go forward.

[11]In the course of the hearing before us, Counsel agreed that grounds 6 and 7 of the Notice of Appeal should be abandoned. In those circumstances they should be deleted from the Notice of Appeal. On behalf of his client and on instruction he does not wish to impugn the Employment Tribunal with misconduct as was originally pleaded in the Notice of Appeal.

[12]In the circumstances, therefore, the present notice of appeal should be amended to delete all grounds except ground 2, which should contain a number of sub paragraphs of specific complaint. The reformulated Notice of Appeal, in accordance with this judgment, should be lodged within 14 days.