MR D C D'SOUZA v LONDON BOROUGH OF LAMBETH [2001] UKEAT 395_99_1912

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 395_99_1912Case No Appeal No. EAT/395/99 EAT/110/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D C D'SOUZAAPPELLANTLONDON BOROUGH OF LAMBETHRESPONDENT
Before
Mr Justice Maurice Kay Mr D J Hodgkins Cb Mr D J JenkinsDate 19 December 2001
[1]APPEARANCES For the Appellant The Appellant in person For the Respondent MR A BURNS (of Counsel) Instructed by: London Borough of Lambeth Borough Solicitors Dept Lambeth Town Hall Brixton Hill London SW2 1RW MR JUSTICE MAURICE KAY There are before us today two appeals in which Mr D'Souza is the Appellant. One is listed for preliminary hearing, and the other for substantive hearing. They are both appeals in respect of which the London Borough of Lambeth is the Respondent.[2]We propose to deal first with the substantive appeal. It is, in form, an appeal against a Decision of an Employment Tribunal sitting at London South, which heard the case on two different days in relation to a consideration of whether Mr D'Souza's claim was out of time, and if so, whether it was just and equitable to extend time. The outcome was that the Employment Tribunal dismissed his application, considering it to be out of time and considering that it was not just and equitable to extend time.[3]Mr D'Souza seeks to appeal that Decision on a number of grounds and it was our initial expectation that we would be spending much of today considering those substantive grounds. However, events before us today have taken a rather different course now that we have been put fully in the picture as to the procedural complexity of Mr D'Souza's multi-faceted litigation against the London Borough of Lambeth.[4]From time to time the Employment Appeal Tribunal has given judgments relating some of that history. It goes back ten years or so. We do not find it necessary to go back quite that far. Initially, the early stages of the litigation were concerned with complaints of race discrimination and victimisation and unfair dismissal.[5]That first phase of all this litigation produced a result. Mr D'Souza was found to have been unfairly dismissed, and I think found to be the victim of discrimination and, following a number of hearings which culminated in the Court of Appeal, that aspect of the case was eventually resolved.[6]In 1996 Mr D'Souza filed the first of several complaints of sex discrimination or unequal treatment, arising out of his employment by Lambeth and its aftermath. One of the cases that he commenced in that category, originally No 4097/96, is the subject of the preliminary hearing, and we shall return to that later.[7]The appeal to us today is in relation to an application made to the Employment Tribunal under No 2304856/98. That produced the Decision to which we have referred, dismissing the complaint on the basis that it was out of time and that it was not just and equitable to extend time. If events had stopped there, it would have been incumbent upon us to determine that appeal substantively.[8]However, what we discovered at an early stage in today's hearing was that Mr D'Souza has commenced subsequent proceedings in the Employment Tribunal. These include proceedings against Lambeth, and in some cases, employees of Lambeth, Nos 2685/99, 6526/00 and 2456/01. They go over a great deal of the same territory, although it is said that there are some issues which, as a matter of form at least, are not identically treated in each case. What is significant is that on 2 and 3 July 2001, there was a Tribunal hearing, described as a preliminary hearing, in which evidence was called and, eventually, submissions were made relating to the 1999, 2000 and 2001 applications.[9]The issues before the Employment Tribunal included issues as to the time limit in respect of sex discrimination and whether or not it was just and equitable to extend time. They also included similar issues in relation to the Equal Pay Act and the Equal Treatment Directive; in addition, there were issues about estoppel and the rule in Henderson -v- Henderson . That was clearly a very detailed hearing of those issues. Mr D'Souza frankly told us that he had every opportunity to put his full case at that hearing, save that he was subject to some limitations on the amount of time available in the Tribunal, but that, of course, can happen in any case.[10]About a fortnight ago, the Employment Tribunal met again in relation to that case to consider written submissions and, no doubt, to consider its Decision. The position today is that the Decision of the Employment Tribunal in those matters is still awaited. Now, that Employment Tribunal has had the benefit of hearing a great deal of evidence, and has had the benefit of considering material which Mr D'Souza was not in a position to produce to the Employment Tribunal in the substantive case with which we are concerned.[11]A number of things have troubled us about all this. One is that amid this plurality of applications and appeals, there has developed a tendency for each to be considered separately from those which it closely resembles, reaching different procedural stages at different times. We do not know what the ruling of the Employment Tribunal will be on the matters heard in July 2001, and the Employment Tribunal, now having heard all the evidence and received all the submissions, do not know what view this Tribunal might take about the 1998 case which is the subject of the present substantive appeal.[12]We are also concerned that it would be quite wrong if anything that was said in the determination of the substantive appeal here were to be relied upon by either party, or if either party thought it had been relied upon by the Employment Tribunal in reaching its decision. We have come to the conclusion that as a matter of case management and seeking to achieve consistency, fairness and justice in these cases, it would be inappropriate for us to determine the substantive appeal at this stage.[13]What we propose to do, and it is a course from which neither party vigorously dissents, although there might be some preference for us having taken a different course, is to adjourn the substantive appeal. The question arises adjourn it till when? The answer to that is that we shall adjourn it certainly until after the Decision of the Employment Tribunal in the matters that were heard in July and December.[14]Looking back over the history of this matter, we are not being either facetious or cynical when we observe that whenever Mr D'Souza has failed at the level of the Employment Tribunal, he appears to have appealed to this Employment Appeal Tribunal; that is, of course, his right. Being realistic, it seems to us that if Mr D'Souza has failed in the Employment Tribunal the high probability is that he will appeal to this Employment Appeal Tribunal, although we do not, of course, encourage such a stage in the procedure. Being equally realistic, if Mr D'Souza succeeds it seems to us to be virtually inevitable that Lambeth will appeal to this Employment Appeal Tribunal. Any such appeal by either party would be on the basis of a detailed hearing having been heard below, and on the basis of more material being before the Employment Tribunal than had been the case when the Decision currently under appeal was in the Employment Tribunal.[15]Accordingly what we propose to do is to adjourn this case until after the Employment Tribunal Decision which is awaited, indeed, until after the time for appealing that Decision has expired, or the time for review has expired, or if an application for review be made until after the notification of the review. If there is then an appeal by either party from that matter to this Tribunal, it should be listed with the present substantive appeal, No 4856/98 and, it seems to us, with another outstanding appeal that has not yet been heard, namely 0110/01. That way, all the appeals which are still extant can be considered together and a single informed judgment can be given on the basis of an overview of all the issues that have come up, sometime repeatedly, in relation to the sex discrimination and equal treatment applications.[16]We shall direct that the matter be listed for directions within twenty eight days after the time for appealing the Employment Tribunal's Decision has expired, so that this Tribunal can be informed of the parties' intentions, and so that necessary arrangements can be made for keeping everything together.[17]Just pausing there, when I referred to 0110/01 that should have been a reference to 23/00 - that is the one that I was intending to indicate should be heard together with these other matters. We make it clear, as we have already indicated, that nothing said in this judgment, or in the course of argument should be relied upon as indicating to any other Tribunal hearing any other aspects of this case that we are intending to convey any view about the merits of this substantive appeal.[18]We turn now to the preliminary hearing. That is the one that bears the reference number 0110/01 and it is an appeal in the proceedings which began life in the Employment Tribunal as 14097/96 being a sex discrimination complaint against Lambeth. What Mr D'Souza is seeking to appeal against in relation to this matter is a Decision of the Employment Tribunal at London South on 31 October 2000 where the Chairman, sitting alone, refused an application by Mr D'Souza for a further review of a decision that had been promulgated on 13 August 1996.[19]Before we say any more of that, it is instructive to trace something of the history of the application in the Employment Tribunal. The case was dismissed as being out of time and, upon the basis of a refusal to extend time, in August 1996. As far as that Decision is concerned, there have been a number of applications for review. They have all been refused and it is the most recent of them that is the subject of this preliminary hearing.[20]One of the matters that we have directed should be listed with the adjourned substantive hearing is, in fact, an appeal against another refusal of review in relation to this Decision, but we do not know enough about that to be able to dispose of it today and that is why we have directed that it be listed with other substantive matters.[21]In addition to the refusals of review, the original Decision of August 1996 was the subject of an appeal to the Employment Appeal Tribunal, which appeal was dismissed at a preliminary hearing on 2 July 1997. Thereafter, Mr D'Souza sought leave to appeal to the Court of Appeal, Civil Division, but he was refused that leave on 10 December 1997.[22]The present Decision under appeal was considered by the Chairman who, in Extended Reasons, explained why she was refusing a further review. She was doing so because she was satisfied that the application for further review had no reasonable prospect of success. She set out, in abbreviated form, something of the history that we have just recounted. She began her reasons for refusal with these words:
"The Applicant made a fresh review application on 27 October 2000, now some four years out of time. The Tribunal of course has power to extend time, in appropriate circumstances, but declines to do so on this occasion. The power to extend time is discretionary, and given the lengthy previous examination of this decision, the interests of justice do not require another extension of time."
[23]She then went on to consider the matter in more detail, both in relation to Mr D'Souza's contention that there ought to be a review by reason of new evidence, under Rule 11 1(d) and that there ought to be a review in the interests of justice, by reference to Section Rule 11 1(e). What was there described as new evidence centred upon evidence in relation to a comparison of Mr D'Souza's position with that of another Lambeth employee, Ms Emma Lewis. The Chairman said:
"The new evidence relied upon is oral evidence, no proper record of which is before me, that Miss Emma Lewis was not dismissed."
[24]The Chairman then examined her note of the original hearing that had taken place in the summer of 1996. That note revealed that Mr D'Souza had then given evidence to the effect that Ms Lewis had not been dismissed as a vexatious litigant, whereas he was. She was not dismissed until some years later. Mr D'Souza had given evidence that he had known about Emma Lewis when had left Lambeth's employment, but not that she had been to a Tribunal and lost.[25]The new evidence which Mr D'Souza sought to rely upon was the evidence of Ms McKane, solicitor in the employment of Lambeth, which had been given in the course of proceedings last year. That evidence was described by the Chairman in the present case as being to the effect that Ms McKane:
"Admitted for the first time that Ms Emma Lewis, who was the comparator chosen by me in that case as well as this one, had not been dismissed …………….and that the hearing which resulted in her being 'reinstated' was not an internal appeal against dismissal but a grievance hearing."
The Chairman observed:
"That evidence coincides with the evidence given by the Applicant in 1996. These proceedings, and those currently being heard, arise out of events which took place on 16 January 1990 and over the preceding years. The new evidence, if so it is, shows merely that Miss Lewis is even less a comparator than originally suggested."
The Chairman then went on to consider Rule 11 before concluding:
"This evidence is not new. It was foreseeable at the date of decision, and indeed he said that Miss Lewis had not been dismissed then. The disputed decision has already been extensively reviewed. Nor am I satisfied that the interests of justice require the proceedings to be reopened. The Applicant has already issued multiple applications arising out of this same dismissal, and the present originating application was dismissed because itself it was years out of time."
[26]Finally, the Chairman went on to consider Article 6 of the European Convention of Human Rights before concluding that Mr D'Souza:
"has already had a fair and public hearing on numerous occasions. The Employment Appeal Tribunal has found this Tribunal to be both independent and impartial, and it is established by law (the Employment Tribunals Act 1996). There is no breach of article 6 in refusing the Applicant yet another review, four years out of time, of a refusal to extend time by six years, on the seventh claim arising out of the same dismissal."
[27]Mr D'Souza, in his grounds of appeal, sought to attack that Decision in a number of ways, both by reference to the Human Rights Act , by reference to community law, and by reference to a number of authorities. He also alleged bias on the part of the Tribunal.[28]Let us now set this preliminary hearing in the chronological context which we set out when we were dealing with the substantive appeal. At the time of the hearing on 31 October 2000, the so-called new evidence relied upon by Mr D'Souza amounted to scarcely anything at all. It was one of his complaints that he did not have documentary evidence because that was in the possession of Lambeth and he was unable to get access to it. Indeed, it is another of his complaints that the matter should have been dealt with only after disclosure and not by way of preliminary hearing.[29]There are numerous complaints, and we do not propose to refer to all of them. We say that because since that hearing, Mr D'Souza has progressed his applications of 1999, 2000 and 2001 and has had a two day hearing followed by written submissions on what seemed to us to be fuller evidence than existed in October 2000. We have asked ourselves what possible gain there would be to Mr D'Souza even if his present appeal listed for a preliminary hearing had any merit. Even if he succeeded, the best that he could do would be to obtain a remission to the Employment Tribunal which would then have to consider what seemed to us to be the very things that were before, or ought to have been before, the Employment Tribunal in July 2001. There is a limit to the number of occasions upon which an Employment Tribunal can be asked to consider the same material, or material which ought to be the same.[30]We have decided to deal with the preliminary hearing finally today, rather than to adjourn it along with the other matters, because it seems to us that it is in relation to a matter that has been overtaken by events. In addition, we bear in mind the previous procedural history of this very case, 14097/96, which has been completely through the system up to the Court of Appeal and has been the subject of a number of other refused reviews before it became overtaken by the events contained in the applications of 1999, 2000 and 2001.[31]In these circumstances, we have declined to hear Mr D'Souza's substantive submissions on his grounds of appeal in relation to the preliminary hearing because we take the view that that appeal has become academic in its nature, the outstanding issues being fully before the Employment Tribunal in the case which is presently under consideration, or fully before the Employment Appeal Tribunal in relation either to the substantive consideration of the substantive appeal that was listed today, and EAT case number 23/00.[32]If it be the case that there are some matters that do not precisely overlap as a matter of pleading with the later cases, well then it seems to us that is down to Mr D'Souza. He has cases in progress, being the ones commenced in 1999, 2000 and 2001, and continuing appeals relating to other matters which dispose us to the view that the appeal listed for preliminary hearing today ought to go no further.[33]That matter as an appeal is dismissed, and we say no more about it, save to reiterate what we said in relation to the substantive appeal that nothing we have said in relation to it - and our decision is made largely on historical and procedural grounds - should be taken as indicating any view one way or the other in relation to the matters which remain under consideration in the Employment Tribunal or remain still for substantive consideration in relation to other appeals in the Employment Appeal Tribunal. Now, Mr D'Souza, you indicated you wanted permission to appeal. Having heard the judgment, do you? Well you will no doubt consider when the time comes whether … ………. The Order will not be delayed, the Order will follow shortly in the next few days, but that does not prejudice the running of time, I am told, the time runs from the date stamped on the …… ……… Well I have made it perfectly clear that it should not, one way or the other. ….. ……… We are not going to play around with the dates of Orders, they will take their normal course and you must consider your position when you see fit.