MR A A LAWAL v NORTHERN SPIRIT LTD [2001] UKEAT 889_00_1501

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 889_00_1501Case No Appeal No. EAT/889/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A A LAWALAPPELLANTNORTHERN SPIRIT LTDRESPONDENT
Before
Mr Justice LindsayDate 15 January 2001
[1]APPEARANCES For the Appellant MR C GLYN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of preliminary hearing the appeal of Mr A A Lawal in the matter Lawal v Northern Spirit Ltd . Today, and we are grateful for this, Mr Glyn appears for Mr Lawal under the ELAAS system. On 7th October 1999 an IT1 was presented for:
"Racially motivated post-employment references."
Mr Lawal claimed to have been dismissed or to have resigned on 20th March 1997, which, in other words, was something like 2½ years prior to his IT1. His employer, Northern Spirit, he said, had refused a reference upon a request being made to them on 17th February 1998. Again, one can see from the dates, a long time before the IT1. The reason for the refusal for the reference was, in effect, alleged to be a matter of victimisation. In Box 11 Mr Lawal said:
"I have the belief that refusal by the employer to provide references to this former employee post-employment is the employer's retaliation to subject me to further detriment because I brought a discrimination claim against same employer which was compromised."
[2]On 13th October 1999 there was a letter taking a point on behalf of Northern Spirit addressed to the Employment Tribunal and it said:
"We respectfully submit that it is clear any proceedings of this nature should have been brought within 3 months of February 1998 and that this complaint has been presented so far out of time that it cannot be said to be "just and equitable" for the complaint to be allowed to proceed. We therefore respectfully ask for a preliminary hearing to determine this point before the Respondent is put to yet further substantial costs by this applicant."
That reference there to February 1998 was a reference back to when Mr Lawal had made a request for a reference.[3]However, it became plain that there had been more than one request and that there had, indeed, been a much more recent request for a reference, on 14th September 1999, that had led to a recent refusal on 20th September 1999. That can be seen from a letter (page 81 of the bundle) addressed to the Borough Treasurer's Department at Chesterfield, signed on behalf of Northern Spirit:
" RE: RECOVERY ASSISTANT (RENTS) – MR A A LAWAL The above named was employed by Northern Spirit as a Conductor from 25th April 1977 to 20th March 1997 when he retired under the early retirement arrangements. I am sorry but it is not our policy to answer specific questions on discipline, performance, personal attributes of former employees, etc. In the circumstances I am unable to provide the information requested."
So, presumably, on that account the employer switched argument away from the time bar point that referred back to 17th February 1998 to the argument that the ability to complain given by statute related only to employees and not to former employees.[4]On 16th June 2000 there was a hearing at the Employment Tribunal and on 12th July 2000 the decision was sent to the parties. It was decision of the tribunal at Sheffield under the chairmanship of Miss H A McWatt; it was unanimous and it was:
"The Tribunal does not have jurisdiction to hear the complaint brought by the applicant in this matter for the reasons set out below."
The reasons set out below include reference to Coote v Granada Hospitality Ltd [1998] IRLR 65 and Post Office v Adekeye (No. 2) [1997] IRLR 105 CA .[5]On 14th July 2000 there was a Notice of Appeal from Mr Lawal acting in person.[6]This is a difficult area. Quite apart from Adekeye and Coote there are more recent cases: D'Souza v London Borough of Lambeth -unreported in the EAT on 7th June 2000 and Relaxion Group v Rhys-Harper [2000] IRLR 810 EAT , that are cases that need to be considered in this area. There may, indeed, be others.[7]We could not with confidence take a view that there is no arguable point of law. We think it is an area that does need a fresh approach in the light of all the recent authorities and accordingly we indicated to Mr Glyn on behalf of Mr Lawal that we were minded to let the matter go to full hearing so that there can be an up-to-date review of the authorities in the area.[8]Mr Glyn has asked that he be given 28 days in order to amend the Notice of Appeal. We welcome that. The Notice of Appeal is home-made at the moment, that is not said in any pejorative way but there is no doubt at all that it could be better focussed with professional assistance and we grant to Mr Lawal the 28 days for amendment of the Notice of Appeal which he asked for.[9]Unless there are further directions that is all we propose to say at this stage.