(1) LONDON BOROUGH OF LAMBETH (2) MR B HOLMES v MR T APELOGUN-GABRIELS [2001] UKEAT 1397_00_2602

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1397_00_2602

Case No Appeal No. EAT/1397/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

(1) LONDON BOROUGH OF LAMBETH (2) MR B HOLMESAPPELLANT

MR T APELOGUN-GABRIELSRESPONDENT

Before

Mr Justice Lindsay

Date 26 February 2001

[1]APPEARANCES For the Appellant MR PETER EDWARDS (of Counsel) Instructed by: Borough Solicitor's Department Lambeth Town Hall Brixton London SW2 1RW For the Respondent THE RESPONDENT IN PERSON MR JUSTICE LINDSAY (PRESIDENT) We have earlier today heard a preliminary hearing of Mr Apelogun-Gabriels' appeal in the matter Apelogun-Gabriels v London Borough of Lambeth and Mr Bowry , and to some extent, this appeal is related to that because what we now have is a full hearing of an appeal by Lambeth in the case Mr Apelogun-Gabriels v London Borough of Lambeth and Mr Holmes . They are related matters but not identical matters by any means. In this matter, Lambeth has appeared by Mr Peter Edwards and Mr Apelogun-Gabriels has appeared in person.

[2]In September 1999 in the directions hearing in the case that we heard this morning, which was a different IT1 to the one with which we are concerned here, the Employment Tribunal allowed complaints, unusually, to be made by Mr Apelogun-Gabriels notwithstanding that they related to dates long after the date of the IT1. The IT1 in that other case was dated November 1998, and yet allegations were added relating to events well into 1999 and were ruled upon.

[3]At that directions hearing in September 1999 it was indicated, and it seemed then to be Mr Gabriels' intention, that complaints would be added, running up "to today", in other words, up to September 1999. Already ten days had been fixed for the hearing of that other IT1. However, although both the letter and the spirit of that directions hearing seems to have been to allow complaints to be raised, as late as complaints having dates in September 1999; no new IT1 was presented by Mr Gabriels, nor was it the case that he plainly added to his existing complaints any events running down to September 1999. Accordingly, the ten day hearing went ahead in that other case in November 1999, without having events wholly up to September 1999 added.

[4]On 14 March 2000, Mr Gabriels lodged a fresh IT1 for discrimination, victimisation, harassment and bullying. It is not entirely easy, at least I find it not easy, to work out exactly what the complaint raised in that new IT1 was. He complains of events of 23 August 1999 and as to delay in a grievance which was lodged by him on 24 August 1999. This time, the alleged perpetrator of discrimination was a Mr Bernie Holmes. Mr Holmes had featured little, if at all, in the matters that had gone to hearing in November 1999. Certainly, he had figured far less then than it seemed now intended by Mr Gabriel that he should.

[5]It was alleged that Mr Bowry had lodged complaints about Mr Gabriels with Mr Holmes on 23 August 1999 and that Mr Bowry had done that simply because of Mr Gabriels' previous complaints about Mr Bowry. Only on 29 February 2000, said Mr Gabriels, had Mr Holmes indicated what the outcome of the earlier grievance that he had lodged had been, and that, of course, was only shortly before the fresh IT1 was launched on 14 March. But, in the new IT1 of 14 March, as far as one can tell, Mr Holmes was the alleged villain, not Mr Bowry.

[6]On 25 April 2000, Lambeth presented their response, their IT3. They said:

"2 By a letter dated 23 August 1999, Mr Bernie Holmes, the Respondent's Acting Finance Bureau Manager, informed the Applicant that he was investigating two complaints by Mr Ivor Bowry against the Applicant. 3. By a letter dated 29 February 2000, Mr Holmes informed the Applicant of the outcome of his investigations, namely that Mr Bowry's grievance against the Applicant had not been upheld. 4. The Applicant lodged a grievance against Mr Homes on 31 August 1999. 5. The Respondent investigated the Applicant's grievance and, by a letter dated 10 March 2000, the Respondent informed the Applicant that his grievance had not been upheld. 6. The Applicant's allegations of discrimination, victimisation, harassment and bullying are denied. 7. The Respondent contends that the Applicant's complaints are out of time and/or have no reasonable prospects of success."

No doubt, because of that last reference to "being out of time", perhaps also the reference to having "no reasonable prospect of success", a hearing was arranged to deal with issues as to jurisdiction and, if necessary, to give directions, and on 13 September of last year there was a hearing at London South, under the Chairmanship of Mr D N Milton and on 29 September, the decision was sent to the parties. It was a unanimous decision and, so far as relevant, it said:

"The unanimous decision of the Tribunal is that: (i) it has jurisdiction to entertain complaints by the Applicant only as particularised in the written reasons in detail."

And also, in (vi) "The Applicant is granted leave to amend subject to the limitation as to the issues set out in the reasons hereafter." The Tribunal set out their understanding of the nature of Mr Gabriels' complaint; they said in their paragraph 3:

"3………..The Applicant presented his Originating Application in these proceedings on 14 March 2000, i.e. within a day or so of receipt of the outcome of the grievance."

Mr Gabriels relied for his lateness (insofar as there was lateness, relative to events of August 1999) on the argument that he had awaited the outcome of his grievance and that he had moved promptly once the outcome of the grievance had become known, and presumably, that it was right and proper that he should have been able to await the outcome of his grievance without thereby running into difficulties with the statutory time-bar. The Tribunal accepted an argument such as that and relied in their conclusion on a case called Aniagwu v London Borough of Hackney and Owens

[1999] IRLR 303

. What they said about that was this, in their paragraph 4:

"4. We considered the recent decision of Aniagwu v London Borough of Hackney and Owens [1999] IRLR 303 and heard the Respondent's submissions that there were distinctions between the Applicant's case and the case of Aniagwu. We disagree. It seems to us that that decision lays down a general approach in discrimination cases where the Tribunal is concerned not with the strict test of reasonable practicability but the somewhat wider test of justice and equity. We adopt the language of the head note and in particular the comment of the learned former President "…unless there is some particular feature about the case or some particular prejudice which employers can show every Tribunal would inevitably conclude that it is a responsible and proper attitude for someone to seek to redress a grievance through the employer's grievance procedure before embarking on legal proceedings"."

[7]It was however only a limited class of matters that the Tribunal ruled upon as proper to go forward. In their paragraph 7 they say:

"7. We make it absolutely clear, however, that it is solely on the basis that he awaited the outcome of that grievance that we allow the Applicant to go into those matters."

Those matters seem to be a reference to the last words of paragraph 6:

"6………..In this case……" said the Tribunal "……we have come to the conclusion that although it may well cause some additional costs and delay to the Respondents, it is not just and equitable that the Applicant should be prevented from litigating the matters contained within his grievance, the outcome of which he is plainly dissatisfied about."

[8]On 9 November, Lambeth lodged a Notice of Appeal, raising, very broadly, two issues which can be described as firstly, the time-bar point, and secondly, issue estoppel. So far as concerns the time-bar, one needs to refer to the Race Relations Act 1976. Section 68(1) says:

"(1) An [employment tribunal] shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of - (a) the period of three months beginning when the act complained of was done;"

Subsection (6) says:

"A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

Subsection (7) which I will not take up time to read, but which we do have in mind, deals with the case where there is an unlawful act, or what is alleged to be an unlawful act, continuing over a period.

[9]We have referred to the Aniagwu decision, but there has since been another material decision at the Employment Appeal Tribunal, namely Robinson v Post Office

[2000] IRLR 804

. Parts of that are cited in the Skeleton Argument presented by Mr Edwards, on behalf of Lambeth. He cites the passage that says:

"The decision of the EAT in Aniagwu did not establish a proposition of broad applicability, such that wherever and so long as there is an unexhausted internal procedure, then delay to wait its outcome necessarily furnishes an acceptable reason for delaying the presentation of a discrimination complaint. Parliament deliberately has not provided that the running of time should be delayed until the end of the domestic processes."

[10]To what issues does the time-bar point relate? Lambeth accepts, in their Skeleton…(and it is an unfortunate feature that it seems that although a copy was sent off to Mr Gabriels, he did not receive it, it might have clarified matters a little) …. but in Lambeth's Skeleton, they accept as follows:

"2.2 ………For the avoidance of doubt, the Appellant should emphasise that it is accepted that the Tribunal has jurisdiction to consider the Respondent's complaint that the conduct of the grievance procedure itself was racially discriminatory. Such claim was clearly made within the requisite 3 month time limit (the report on the grievance was communicated shortly after 10 th March 2000; the Respondent's Originating Application was lodged on 14 th March 2000)."

As to any issues outside the conduct of the grievance procedure, why (asks Lambeth) should they not have been presented and complained of sooner?

[11]We therefore have to revert to the Robinson case and we accept that the Robinson case is the law, for the time being at any rate. That decision will inform decisions arising since Robinson was published. But, as for a case, such as the one here, which was dealt with by the Employment Tribunal before Robinson was published in December 2000, it is difficult for the Appellant to urge that a reason for delay - namely the awaiting of the domestic procedures outcome, which is a reason for delay which had been seen by the EAT in Aniagwu to be such that any Employment Tribunal would think it to be responsible and proper - should have been seen by Mr Gabriels to be so weak a ground that it would make it not just and equitable to extend time on account of it.

[12]Put another way, it is hard to expect Mr Gabriels, as a litigant in person, to be better informed than, for a time, was the EAT, in the spell after the Aniagwu case and before Robinson . But for the Aniagwu argument to carry any real weight, much depends not on law but on fact. It depends on such features as whether Mr Gabriels said, or can say with any credibility, that he had awaited the grievance outcome deliberately, believing that from a time-bar point of view, he was safe in doing so, and explaining, if he can with credibility, if that was the case, why he felt able to regard himself as safe in delaying.

[13]On the time-bar issue, because the Tribunal relied so heavily on Aniagwu which is not, in our view, now the law, we set aside the Tribunal's decision and remit consideration of the matters that arise under section 68(6) and (7) of the Race Relations Act to be reconsidered. They should be reconsidered on the footing that the Tribunal may, if it chooses, rely on evidence already heard, or, if it thinks that that evidence needs refreshing or needs supplement, may receive further evidence. Indeed, the better course is that the matter is remitted to a fresh Tribunal rather than the same one as before, so that the evidence can be brought up to date in an entirely fresh manner.

[14]That is one basis on which the matter ought to be remitted. The time-bar point, also, when reconsidered, needs to be considered against this: that whatever the strict position in law may be, the Tribunal should recognise that it is possible , if the evidence justifies such a view, that even a genuine reliance on a true belief that the delay did not jeopardise the presentation of an IT1, albeit based on a ground that has been found not to have excused delay, can nonetheless, justify an extension of time under the very broad considerations that arise when what is being considered is what is just and equitable. An honest reliance on a point that turns out to be a bad point of law can, nonetheless, amount to what is a just and equitable reason for an extension of time. It will, of course, be possible for the Tribunal to regard some complaints as just and equitable to proceed, and others not; there is no reason why the decision should be all or nothing. So much for the time-bar point which we remit to a new Tribunal to hear afresh, in the manner that we have indicated.

[15]As for the other issue, namely estoppel, it does not arise, of course, as to the conduct of the grievance procedure, because Mr Edwards has accepted, in the way that we have quoted from his Skeleton, that that can go forward, and is not estopped. Moreover, the estoppel can only rely to such, if any issues, that the Tribunal upon the remission we have just described, elects, on the evidence, to regard as complaints in respect of which it is just and equitable to extend time, and we cannot, at this stage, know what those issues will be.

[16]It is not entirely clear what was contemplated in the Tribunal's leave to amend, but it would seem that it referred to the contents of Mr Gabriels' form of grievance, but the Tribunal did not allow all of that to go forward; they qualified what was to go forward by saying:

"7. ……..we make it absolutely clear that that amendment is strictly limited to the allegations which the Applicant put in his original grievance letter and document at pages 13 onwards, and it is not a carte blanche for the Applicant to reopen a whole lot of matter simply because they may have been going on during August, September and October or anything of that kind."

[17]The reference to pages 13 onwards is not perhaps as clear now as it was, no doubt, then, but it would seem to refer to what we now have as headed "Grievance: Mr Bernie Holmes 24/8/99" on pages 25 onwards in a yellow hard-backed bundle, which we have, and which, unhelpfully, Mr Edwards does not have, (not, at any rate, in the same form). Of the issues in the yellow bundle, pages 25 - 28, the Tribunal, on our reading of the document, then is barred on estoppel principles the whole of the topic that is marked "(2) On E-Mail Time Differences" and which then ran from (i) to (xiii). The Tribunal says, and it seems to be in relation to that:

"It is clear to us from paragraph 4(viii) and paragraph 40 and 41 and 60 and 61 that the problems which the Applicant was undergoing with Mr Bowry in relation to alleged falsified e-mails and issues surrounding that were issues that were litigated in those proceedings. We find that there is a clear estoppel."

So it seems to be that that they regard as estopped. They say in paragraph 10:

"10. It follows therefore that the main hearing will be strictly limited to the issues which the Applicant argued in the grievance and which are reflected (or for that matter not reflected) in the outcome of the panel in March 2001."

But on our reading, the specific reference that we have read that says: "we find that there is a clear estoppel" should have been written into their paragraph 10, as otherwise, there would be head-on conflict between the two.

[18]That heading - going back to it, is the one in the yellow bundle, pages 25-28 headed "Grievance: Mr Bernie Holmes 24/8/99" and specified in 2(i) to (xiii) - is estopped. But then there are other issues (which we will call "the other issues") in those series of pages, for example "(3) Inciting Creditors To Complain", and that has dates in August 1999, "(5) Meeting of the 17/8/99 with Mr Bernie Holmes"; "Payment Duplication"; both of those have headings which are given with dates in August 1999; "(B) Payment Backlog" - 17 August 1999; heading "5(C) Password Confidentiality", and heading "6 Complaints Against Me Written for Mr Bowry by Mr B Homes" - 23 August 1999.

[19]They are all complaints which, it would be plain from their dates, arose after the IT1 in the other case, in September 1998. That is not, of itself, enough to say about them to bar them, because, as we mentioned earlier, in September 1999 the Tribunal, in the other case, indicated that matters could be complained of up to date, and all of those could, on that footing, have been raised by Mr Gabriels, in the proceedings which led to a hearing in November 1999. It is debatable how far those issues were specifically ruled upon, so as to attract the doctrine of Res Judicata , strictly so called.

[20]At one point Mr Edwards was relying on Mr Gabriels' final written submissions in the November 1999 hearing as being indicative of what was truly regarded by the Tribunal as before them in that case; that, though, does not seem to us to be an appropriate procedure because Mr Gabriels' arguments could well have been viewed by the Tribunal as irrelevant in part and hence the mere fact that they were in his written submissions does not mean that they were properly raised.

[21]I think the better course is to regard the other issues, that we have just identified as not barred by Res Judicata strictly so called. But then one gets into a difficulty under the wider form of estoppel that is usually referred to by reference to the old case Henderson v Henderson ; the question arises under this wider form of whether Mr Gabriels should now be estopped from raising issues afresh if he could have raised them and could have had them ruled upon at the earlier hearing in November 1999.

[22]The most recent approach in the Court of Appeal, in relation to Henderson v Henderson has been to ask whether there has been abuse of process in the failure to raise the issues said to be estopped by reason of their not having been raised sooner or abuse in seeking to raise later that which should have been raised earlier. The Tribunal said in their paragraph 5:

"5 It is indeed correct that there was a lengthy hearing before another Tribunal between 17 th and end November 1999, and a number of the main allegations which the Applicant argued in his grievance of August 1999 were based on facts in the summer or earlier of 1999. It would indeed have been possible for him to present an Originating Application prior to November 1999 about those matters."

But presentation of an IT1 is one thing, arranging it to be heard successfully by November 1999 is another. One has to look at the history of these parties as litigants. The hearing of 17 November 1999 was on an IT1 that had been presented as long before as 16 November 1998; it had, in other words, taken a year and a day to get from being presented to being heard; a ten day fixture had emerged to deal with that IT1. If a fresh IT1, involving new issues of the kind that it is said Mr Gabriels should be estopped from not having raised earlier, had been presented, involving, it has to be said, a new party - Mr Holmes - what would the reaction of the parties, and the Employment Tribunal have been to that attempt to add further issues?

[23]Well, we have not got evidence on the case, and it is necessarily a matter that can only be dealt with now by way of supposition. One can expect that Mr Gabriels, had he applied for these new issues to be added, would have come under pressure, either from the Tribunal or from Lambeth, as to whether they could be brought up to speed in time to be heard with the rest of the case in November 1999.

[24]One can foresee an argument coming from Lambeth - although Mr Edwards says, on instructions, that this attitude would not have been taken - that to add significant new issues, so late in the day would jeopardise the conclusion of the case by the end of the ten days fixed for it. The Tribunal itself, looking at the history of the matter, would be likely to have raised, given that it had taken a year to get the other IT1 up to speed, whether it could properly add these new issues in time for a hearing in November. One can foresee, equally, an argument by Mr Gabriels that, as a litigant in person, he was already overloaded, preparing for a ten day case on the issues already fixed, and that it would be wrong to deluge him with further issues, which he could perhaps, not get up to speed with in time. It is all very well Lambeth now saying that they would have wanted everything to go forward and be dealt with in time but one can see a situation which, say in October, if Mr Gabriels had presented a new IT1 and had then come along and asked for it to be consolidated and heard in November, that their attitude then might not be what it is now said it would have been.

[25]It seems to us that had Mr Gabriels attempted to get the other issues raised and heard, he could well have failed; there might well have been a separate hearing of the new issues, even if Mr Gabriels had tried to have them heard together. If that is right, and it is necessarily a matter of supposition, it is hard to see how it could be abusive of procedure for there to end up being two separate proceedings; two separate hearings which, on what has actually happened, will be the case if Mr Gabriels' new IT1 can go forward at all. It will be remembered that the Tribunal says that it is just and equitable that the Applicant should not be prevented from litigating the matters in his grievance.

[26]This is not to say though that the Tribunal's reasoning on the estoppel point is free from doubt, or indeed, error. They say in their paragraph 7, as we have already cited:

"7. We make it absolutely clear, however, that it is solely on the basis that he awaited the outcome of that grievance that we allow the Applicant to go into those matters."

That, as it is framed, does not appear to be dealing with the Aniagwu point - the time-bar point - but seems to be referring to estoppel. Mr Edwards say, with what we regard as good reason, that when one comes to consider what are special circumstances in relation to Henderson v Henderson , a strict view is taken, and that that strict view would not allow the fact that a party was simply waiting for a domestic grievance to be completed to be regarded as a special circumstance for the purposes of Henderson v Henderson .

[27]The Tribunal said, as we have mentioned, that they made it absolutely clear that their decision was solely on the basis that Mr Gabriels had awaited the outcome of that grievance; it cannot possibly have been right, under Henderson v Henderson that that was the only thing that was required to be considered in working through what could, or could not be, a special circumstance for estoppel purposes. We see the Tribunal to have erred in law in that respect; we have already remitted the case on the time-bar point to a fresh Tribunal, and we think, therefore, having detected error of law in the estoppel side of the case, that that too should be remitted to a fresh Tribunal.

[28]It would greatly help the Tribunal that hears the matter, by way of remission, for it first to receive from Lambeth an indication in writing, sent both to the Tribunal and to Mr Gabriels, stating exactly what issues it claims are firstly, estopped by way of Res Judicata properly so called; secondly, what is estopped by Henderson v Henderson , estoppel in the wider sense; and, thirdly, what is barred under the time-bar consideration.

[29]It has, I think, bedevilled not only argument below, but argument here, that different framings of Mr Gabriels' case have, at different times, been relied upon, and one would hope that Lambeth will be able to sort out matters in the way that we have indicated which, I am sure, will greatly clarify and facilitate the task before the Tribunal to whom we remit. But for the reasons we have given, we remit the matter to a fresh Tribunal, having set aside the decision under appeal.