MR G ARROYO-VALENCIA v TIBBETT AND BRITTEN LTD & OTHERS [2002] UKEAT 0752_01_1706

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 0752_01_1706

Case No Appeal No. EAT/0752/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR G ARROYO-VALENCIAAPPELLANT

TIBBETT AND BRITTEN LTD & OTHERSRESPONDENT

Before

Mr Justice Lindsay

Date 17 June 2002

[1]APPEARANCES For the Appellant MR G ARROYO-VALENCIA (the Appellant in Person) JUSTICE LINDSAY (PRESIDENT) We have before us, by way of a Preliminary Hearing, the appeal of Mr G Arroyo-Valencia in the matter that is now listed as Arroyo-Valencia against five Respondents, first Tibbett & Britten Ltd and then four individuals.

[2]Mr G Arroyo-Valencia appeals against a decision of the Tribunal at Bedford under the Chairmanship of Mr G Plenderleath that was sent to the parties on 8 May 2001. Today Mr G Arroyo-Valencia has addressed us in person.

[3]On 12 February 2000 Mr G Arroyo-Valencia lodged an IT1 against 10 Respondents; the first Respondent Homebase, Tibbett & Britten Ltd the second Respondent, and eight others. It was for racial discrimination and/or victimisation. He said he had been employed from 19 January 1998 and was still employed at the time of the IT1.

[4]There had been what he recognised was at least arguably a TUPE transfer from Homebase to Tibbett & Britten, or to a partnership consisting of Tibbett & Britten and Homebase, that had taken place in January 2000.

[5]He was well aware of time difficulties and his particulars of claim said this:

"The Applicant is aware that the acts of certain Respondents are outside of the 3 month time limit, although his claim for ongoing act is in time, but asks that the Tribunal use its discretionary powers to allow the whole of his claim on the grounds that the advice given by his Union was so entirely ill-founded as to be detrimental to him. When he sought to have his Union Representative changed as he did not appear to be acting in his interests – but, being foreign to the country, lacked knowledge, which he has sought to ascertain through a change of Representative. His requests were refused, despite appeals. He sought alternative advice/clarification from the Northampton Racial Equality Council (REC), who contacted the Union and the ill-founded advice was compounded in January 2000; the Union then arranged a meeting with the REC and invited the Applicant, who had not been consulted about the arrangement. The meeting took place on 08.02.00. The advice was again so ill-founded that the Applicant sought further assistance from his current Representatives who make this request on his behalf and, as soon as copies of documentation were provided set about with immediate effect to prepare and submit this case. The Applicant was not forewarned that the delays caused by the Union and REC could disadvantage his case; nor of how he could take this forward and was given the clear impression that to do so would mean the automatic forfeit of his job. The Applicant is of Columbian origin and is black. English is his second language. Common nuances and innuendoes of the English language can be difficult for his, and in high pressure situations with several people talking he would benefit from a translator, or written material before his, which he comprehends very well. There are also cultural differences. The Applicant applied himself in the work place and frequently apologised for his limited skills in spoken English, seeking reassurance that his meaning was accurately comprehended."

And so he was aware of difficulties that the passage of time presented to him.

[6]On 13 March 2000 there was an IT3 from Homebase and it asserted that the Applicant had been dismissed for gross misconduct on 8 March 2000, after there had been a TUPE transfer from Homebase to Tibbett & Britten and accordingly, so said Homebase, they should be discharged from the case.

[7]On 13 March also there was an IT3 from Tibbett & Britten and they said that Mr Arroyo-Valencia had been dismissed for gross misconduct on 8 March and that there had been no racial discrimination. Other Respondents put in similar IT3s.

[8]After an oral hearing on 22 June 2000 Homebase and Tibbett & Britten and the Homebase and Tibbett & Britten partnership were discharged as Respondents. The matter then went forward with the remaining parts of the case and I should say also there was another IT1 that Mr Arroyo-Valencia had issued against, amongst others, the United Road Transport Union and there was a hearing on 10 August 2000 to deal with a number of subjects in the IT1s that Mr Arroyo-Valencia had by then before the Tribunal.

[9]Mr Arroyo-Valencia asked for a review of the striking out of Homebase and the Tibbett & Britten and Homebase partnership but that was rejected. Other matters came up at that hearing on 10 August, including whether there were other Respondents who should be dismissed from the proceedings. So that review was one of the subjects spoken of at 10 August but, on the face of things, it would have been a review of the decision of 22 June.

[10]At all events, on 29 August 2000, the Tribunal sent to the parties their extended reasons growing out of the oral hearing of 10 August. Strangely, we have not actually got their extended reasons and decision before us but they are summarised in other papers. The outcome was that the 4 th , 5 th , 7 th , 8 th , 9 th and 11 th Respondents were discharged as Respondents. On 16 September 2000 Mr Arroyo-Valencia applied for a review of that decision sent to the parties on 29 August. That is one way of putting it; it might be that on 16 September Mr Arroyo-Valencia, using ambiguous language, asked for either a review or an appeal as against the decision of 29 August. At all events, on 23 September he made it clear that what he was asking for at the time was a review of the decision of 29 August.

[11]At the Employment Tribunal on 30 April 2001 there was a hearing of the request for a review. There were two subjects in front of the Tribunal on that day. First of all, an application in respect of Mr Arroyo-Valencia's application for review and, secondly, yet further Respondents, the 6 th , 10 th , 12 th and 13 th , were seeking that they should be discharged from the further conduct of the case.

[12]On 8 May 2001 the decision of the hearing of 30 April was sent to the parties and this is the decision: 1. The Applicant's request for a review of the Tribunal's decision promulgated on 29 th August 2000 is out of time and refused. 2. The Respondents' application that the 6 th , 10 th , 12 th and 13 th Respondents be discharged from the proceedings is refused. So, of course, Mr Arroyo-Valencia had won argument 2 but had lost argument 1.

[13]On 13 June 2001 Mr Arroyo-Valencia put in a Notice of Appeal that purported to be an appeal against three separate Employment Tribunal decisions dated respectively 22 June, 29 August 2000 and also 8 May 2001. 42 days from 8 May 2001 does not expire until 19 June 2001 and so, in respect of the decision of 8 May 2001, the Notice of Appeal of 13 June 2001 was in time.

[14]Mr Valencia has applied, unsuccessfully so far, for an extension of time as to the decisions of 22 June and 29 August and so the only appeal before us is as to the decision of 8 May 2001, refusing a review of the decision of 29 August 2000.

[15]The application that was heard on 30 April was fully treated and it came, unusually perhaps, in front of a full Tribunal of three; Mr Plenderleath sitting with Ms R Wilson and Mr J Thakoordin.

[16]The rules as to applying for a review, are now to be found in Rule 13(4) of the Employment Tribunal Rules; the numbering has changed but the substance is the same, and (4) says this: (4) An application for the purposes of paragraph (1) may be made at the hearing. If no application is made at the hearing, an application may be made to the Secretary on or after the date of the hearing, but within 14 days of the date on which the decision was sent to the parties. Such application must be made in writing and must state the grounds in full."

[17]If no application was made at the hearing itself then the time for an application for a review expired 14 days after 29 August, namely on 12 September 2000 and the Tribunal records the application as having been made on 16 September. So, on the face of things, it was plain that the application was out of time. If one looks instead at the clarification on 23 September, well then, even more is Mr Arroyo-Valencia out of time.

[18]The Tribunal began by saying: 1. "This matter comes before the Tribunal today on an application for a review of the Tribunal's earlier decision promulgated on 29 August that the 4 th , 5 th , 7 th , 8 th , 9 th and 11 th Respondents be discharged from these proceedings. His application, which was made by letter dated 16 th September 2000, relates…" and then it goes on, but it is plain that the Tribunal was treating the matter on the footing that there was an application of 16 September.

[19]They said in their paragraphs 2 and 3 this: 2 "This application is out of time and we have listened to Mr Arroyo's explanation which basically is that he was heavily engaged in another Tribunal application at the relevant time and therefore did not lodge his application for a review as quickly as he should. 3 Having considered that application, we find that the explanation put forward does not satisfy the Tribunal and therefore it is not appropriate for us to extend the time limit specified in the rules. The application for a review is therefore refused."

[20]Of course, we can only deal with errors of law and there is, as it seems to us, no apparent error of law in the Tribunal's reasoning on that point. The rest of the decision was on the second point, which, as we mentioned, Mr Arroyo-Valencia won.

[21]However, Mr Arroyo-Valencia has said today that in fact he had made an oral application for a review at the oral hearing on 10 August. Well, it may be that he had, but as it would seem to us, that was an application for a review of the earlier decision of 22 June.

[22]As to whether he made then an oral application for a review of what was actually going on, on 10 August , well, there are a number of significant points. First of all the Employment Tribunal makes no mention of it whatsoever in its extended reasons of 8 May 2001. Secondly, in what is not a short letter to Mr Arroyo-Valencia on 22 September 2000, the Employment Tribunal makes no mention of there having been an oral application for a review of the decision at the hearing on 10 August.

[23]Thirdly, in that letter of 22 September, the Employment Tribunal then tell Mr Arroyo-Valencia that time for a review had expired on 13 September. One would not expect them to have said that had there been an oral application at the hearing itself. But, perhaps more significantly, in his long answer of 23 September 2000 Mr Arroyo-Valencia makes no mention of having made an oral application for a review on the hearing day itself. One would have expected him to do so.

[24]It is plain from the fact that Mr Arroyo-Valencia sought to explain delay, as we have read from the Tribunal's paragraph 2, by reference only to his being heavily engaged in another Tribunal application, that he did not then advance an assertion that he had already made an application orally at the oral hearing on 10 August itself.

[25]On balance, we cannot, on the material before us, conclude that there was, indeed, an oral application at the hearing on 10 August seeking a review of what was being done on 10 August, although doubtless there was an application for a review of the earlier decision.

[26]The case has been vexed with these interlocutory applications for some time. Mr Arroyo-Valencia still has five Respondents against whom he can proceed and it might behove him to reflect that it would be better now to pursue the substantive case rather then pursuing these interlocutory matters and appeals. But, simply turning to the matter which is strictly the only matter before us, – namely whether we can find an arguable error of law in the Tribunal's decision of 8 May 2001 – we cannot find any such error of law that is even arguable and accordingly we must dismiss the appeal.