MR S HUSAIN v (1) AVON AND SOMERSET POLICE (2) SOUTH WALES POLICE (3) KENT COUNTY CONSTABULARY [2002] UKEAT 1404_01_2111

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1404_01_2111Case No Appeal No. EAT/1404/01/MAA EAT/241/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S HUSAINAPPELLANT(1) AVON AND SOMERSET POLICE (2) SOUTH WALES POLICE (3) KENT COUNTY CONSTABULARYRESPONDENT
Before
Mr Justice Elias Mrs C Baelz Mr D A C LambertDate 21 November 2002
[1]APPEARANCES EAT/1404/01/MAA For the Appellant MR ANDREW GUMBITI-ZIMUTO (of Counsel) Instructed by: Cardiff Law Centre 41/42 Clifton Street Adamstown Cardiff CF24 1LS For the 2nd Respondent 1st and 3rd Respondents MR JONATHAN WALTERS (of Counsel) Instructed by: Force Solicitor's Office South Wales Police Police Headquarters Cowbridge Road Bridgend CF31 3SU No appearance or representation by or on behalf of the 1st and 3rd Respondents EAT/241/02/SM For the Appellant MR ANDREW GUMBITI-ZIMUTO (of Counsel) Instructed by: Cardiff Law Centre 41/42 Clifton Street Adamstown Cardiff CF24 1LS For the Respondent No appearance or representation by or on behalf of the Respondent THE HONOURABLE MR JUSTICE ELIAS In this matter there are two appeals, one from a Decision of an Employment Tribunal sitting in Cardiff, and one from a Decision of the Tribunal sitting in Ashford, Kent. Each relates to alleged acts of racial discrimination. In the Cardiff Decision, the Employment Tribunal held that the application was out of time, and refused to exercise its discretion to permit a later application. In the Kent Decision the Tribunal refused to permit the Applicant to amend his Originating Application to add new grounds. He appeals both these rulings. The two Decisions arise out of connected facts; accordingly we will first set out the factual background before considering the Decisions of the Tribunals in the two cases. The facts[2]The Appellant is of Pakistani national origin. He was a police officer in Pakistan. In 1999 he unsuccessfully applied for employment with the Kent Constabulary. In April 2000 he submitted a further application for the post of Analyst; he was not shortlisted for that post. In May 2000 he applied for the post of Principal Analyst with the South Wales Police Force. On 30 June 2000 he became aware that he had not been shortlisted for that post. In fact, it appears that the job was offered to someone else, a black female, but she turned it down, and the job was subsequently re-advertised. Later in September 2000, he applied for the position of an Analyst for the South Avon and Somerset Police.[3]On 10 January 2001, he was arrested by police officers of that force. They questioned him, searched his home and he was bailed to return to the Rumney Police Station in Cardiff on 28 March 2001. He was told that he had been arrested on suspicion of attempting to obtain pecuniary advantage by deception by applying for jobs with the British Police Forces, and reference was made to the three Forces which we have identified. He was also informed that the Avon and Somerset Police believed that his application for employment had not contained truthful information about his qualifications and experience. It seems that the authorities were put on suspicion by the fact that he seemed to be far better qualified than other applicants for the job.[4]On 25 January 2001, he presented an application to the Employment Tribunal against three police constables representing each of these three Police Forces. He alleged that each had unlawfully discriminated against him on grounds of race, contrary to section 1 of the Race Relations Act . He alleged they had discriminated in respect of the arrangements they made for the purpose of determining who should be offered employment, and/or in the terms in which they offered employment and/or in refusing or deliberately omitting to offer him employment.[5]On 28 March 2001, the Appellant received a letter from the Avon and Somerset Police releasing him from the requirement to attend at the police station, and accepting that there had been a mistake in believing that he had committed any deception. It should be made unambiguously clear that there is now no allegation of any impropriety in any of these applications whatsoever.[6]On 5 June 2001 an Order was made transferring the proceedings in respect of the claim against the Chief Constable of Kent to the London South region.[7]With that background in mind, we now turn to consider the two Decisions which are the subject of this appeal. We first deal with the Decision of the Cardiff Tribunal, which was determined first. The Cardiff Decision[8]The Respondents took the point that the Appellant was out of time. He had known by the last day of June 2000 that he was not going to be put on the shortlist for that particular post. Indeed, the post was to be re-advertised. The three-month time limit provided within the provisions of section 68 of the Race Relations Act therefore would have been extinguished by the end of September. The Appellant presented his application on 25 January 2001, almost four months out of time. The Respondents submitted that in these circumstances, the Tribunal had no jurisdiction to hear the claim. The Appellant contended that the Tribunal ought to exercise its discretion to extend time, pursuant to section 68(6) of the Race Relations Act which permits a Tribunal to do so if it is just and equitable in all the circumstances.[9]The Appellant contended before the Tribunal that until he had been arrested, he had merely had suspicions that he had been discriminated against, but no positive ground for asserting it. The arrest on 10 January for the first time made it clear to him that his application had been separately treated. The Respondents submitted that he could have brought his claim in time and there was no good explanation for his failure to do so. Furthermore, they submitted that the force had a policy of destroying documents after three months and that there were no relevant documents available which would hinder them in various ways in defending his claims.[10]The Tribunal found in the employer's favour, and held that in the circumstances it had no jurisdiction to hear the claims. It referred to what it termed "important evidence" which emerged in cross-examination, namely that the Applicant admitted that he had felt aggrieved immediately after the decision not to appoint him at the end of June. He decided not to pursue the complaint at that time, partly because he did not want to cause unnecessary trouble (we take that to be a reference, perhaps, to the fact the he was pursuing other posts in other police forces), and partly because he felt the odds were stacked against him. He saw himself as an individual challenging a powerful organisation.[11]In paragraph 5 of its Decision, the Tribunal said this:
"We direct ourselves that the tribunal has a wide discretion in this matter. That discretion must be exercised judicially and not simply on a whim or sympathy. We conclude that we must look particularly at the issues of the delay and the reasons for the delay and the question of any prejudice and the balance of any prejudice to one party as opposed to the other."
Mr Gumbiti-Zimuto, who has presented arguments most ably on behalf of the Appellant in this Tribunal, accepts that that is a perfectly proper direction and it is not necessary for us to go into the law on this matter.[12]The Tribunal then set out its conclusions as follows:
"6 We conclude that the delay itself is not particularly excessive but the explanation for not pursuing this matter properly is in essence a simple reluctance on the part of the applicant. He had not been misled by the respondent or has been mistaken by any set of facts on any relevant matter. He was a highly qualified individual and was of the view that his failure to obtain at least an interview was because of discrimination. Those are the facts on which he based his view and it would have been open to him to proceed and if necessary make the decision to subsequently withdraw or confirm his decision to litigate after examining the content of any questionnaire. 7. We take the view that if one has a complaint then it should be prosecuted promptly. Especially in cases such as this, one should not sit on one's hands and wait for the time when one's mind changes. This is especially important in this case because although the delay itself is not particularly excessive as earlier expressed the delay does have crucial consequences. 8. We accept that all the relevant documents in this matter have been destroyed and that there will be prejudice against the respondent because it is their case that the applicant's application was the subject of attention merely because it had such unusual characteristics in a sense the qualifications were far superior to any others. This drew the attention and suspicion of those considering the applications. If the other applications are not available then it is impossible for the respondents to sustain that allegation and confirm it with documentary evidence which otherwise they might seek to do. We think that is a serious prejudice and combined with the failure of the applicant in our view to give an adequate reason as opposed to an explanation for the delay we do not think that it is right to exercise our discretion to extend the period for presentation of the Originating Application."
The Appellant challenges the exercise of this discretion.[13]Mr Gumbiti-Zimuto wished to contend, as one of his arguments that, indeed, the claim was not strictly out of time at all. He submitted that the arrest itself was part of the arrangements made for dealing with his job application and that the claim had been initiated within three months of that date. However, he properly indicated that although he was not the representative of the Appellant in the Employment Tribunal below, this was not an argument that had been advanced before that Tribunal. In the circumstances, we think it would be wrong to permit this argument to be advanced for the first time before this Tribunal.[14]In any event, he submitted that there were three reasons why this Tribunal should now interfere with the Decision of the Employment Tribunal. First, he submitted that the Tribunal had not given proper consideration to the fact of the arrest on 10 January 2001. This changed matters fundamentally, he submitted, because it demonstrated to the Appellant that his case had been treated differently to the other applicants for the post. Until that time, he accepts that the Appellant was not intending to initiate proceedings against the South Wales Force. He submits that it was not strictly a case, as the Tribunal said, of the Appellant sitting on his hands; rather he had determined not to take proceedings, but this event of his arrest had caused him to take a different view. He relied upon the case of Clarke -v- Hampshire Electro-Plating Co Ltd [1991] IRLR 490 in which Mr Justice Wood, giving the judgment of the Tribunal, had indicated that in exercising a discretion to extend time in a case of this nature, it would be necessary to look at evidence which might apparently make the case stronger, even although the Applicant had initially chosen not to take proceedings because he took the view that he would be unlikely to succeed, because of the lack of sufficient evidence; see paragraph 11.[15]Secondly, Mr Gumbiti-Zimuto submits that the Tribunal wrongly analysed the question of prejudice in this case. He submitted that in truth there was no significant prejudice caused to the Force as a result of the lack of documentation. He indicated that the Appellant would be willing to concede that his qualifications were better than any other applicant. He also submitted that, in those circumstances, it would not be necessary to have the written applications from others who had applied for the post.[16]Finally, he advanced a ground which only became available to him in the last few days. The Tribunal reached its conclusion, as we have seen, on the basis that there were no relevant documents in the matter at all. In fact, shortly before this hearing, the South Wales Police Force discovered that there were some documents relating to this matter, namely the Appellant's CV and application form, and also the description of the particular post for which he had applied. Mr Gumbiti-Zimuto submits that in the circumstances, the Tribunal had been misled by the Respondents, not deliberately or in bad faith, but nonetheless, they had reached a Decision on this question of discretion on the basis of a false assumption. He submitted that in the circumstances it would not be right for us to guess or speculate as to what the Tribunal would have done had these documents been before it at the relevant time.[17]Mr Walters, for the Respondent, made cogent and succinct submissions in response. As to the first point, he submitted that it was plain that the Tribunal was conscious of the argument being advanced by the Appellant that the events of 10 January had changed the position, but the Tribunal had not been persuaded that this was a justification for extending time. He submitted that the Tribunal was, indeed, wholly right to say that where somebody has effectively chosen not to take proceedings, as in this case, then he should not be allowed to change his mind because of the emergence of some additional evidence.[18]In addition, he refers to that part of the Tribunal's determination, where they point out that it would have been open to the Appellant to have submitted a questionnaire setting out particular matters in which he needed a response from the employers. Had that been done, then the information that emerged from 10 January may well have been known to the Appellant at a much earlier date.[19]As to the question of prejudice, he submitted that there is very plain prejudice. Firstly, even if there is a concession from the Appellant that he was the most highly qualified, that would not be sufficient from the Respondent's point of view. To the extent that they were put on enquiry as a result of his qualifications, it may be necessary to identify the extent to which he was so much better qualified than others. He also points out, and we accept there is significant force in this, that officers in the Police Authority would not have events relating to this particular post in the forefront of their mind, and they would need relevant documentation in order to prompt their memories and to enable them to be able to give cogent evidence in the case.[20]In addition, the documentation about other applicants may be relevant insofar as it could disclose that they were from various minority backgrounds. As we have indicated, it is known at least that the applicant who was initially successful and turned down the job was a black female. Again, looking at this factor alone, we accept the arguments advanced by Mr Walters. It seems to us the Tribunal did look at this matter of prejudice in an appropriate way, and they were entitled to reach the conclusion that they did: that there would be prejudice and that this, quite properly, weighed significantly with the Tribunal in reaching its conclusion.[21]As to the ground which was advanced for the first time today, namely that the Tribunal acted on a false premise as to which documents were available, Mr Walter concedes that if the Tribunal had merely found in the Respondents' favour because of the potential prejudice, then he would accept that the discovery of some documents would, to some extent, have undermined the Decision of the Tribunal. However, he submits that in all the circumstances here, it is plain that the Tribunal was influenced not just by this consideration of prejudice, but also by the fact that they felt that it was not appropriate to permit the Appellant simply to change his mind, having formed the view at an early stage that he had been the subject of racial discrimination.[22]Effectively, he says that in all the circumstances, we can be satisfied that even had the Tribunal been provided with the particular documents that have now been located, they would have come to the same view, and we can be confident of that fact. We do not accept that. It may well be that Mr Walters is right about that; it could well be that the Tribunal would have come to the same Decision, even had they had these documents available to them, but we do not consider that we should make that assumption. It seems to us that it is not inevitable that they would have done so, and it would be wrong for us to speculate what effect these documents, had they been known to the Tribunal, may have had upon its determination. Accordingly, for this rather narrow ground, we consider that this appeal should be upheld.[23]We bear in mind, of course, that it was the error of the Respondents that had caused the Tribunal to be misled as to the existence of these documents, and it would not be right, we think, that the Appellant should now be deprived of arguing this case on the basis that certain relevant documents are indeed available to the Respondents. That, of course, does not meet in full the prejudice arguments that were advanced in the Tribunal below, but it may to some extent qualify the force of those submissions, with what effect we cannot, and should not, say. So for that reason, we would remit this case to a fresh Tribunal for reconsideration of this particular matter.[24]We note, in passing, that all of us on this Tribunal were surprised that the Police Authority would have a policy of destroying documents so quickly after a decision is made about an appointment of this kind. That plainly may cause difficulties in the future, sometimes to appellants, sometimes to the Force itself; we would simply suggest that they look very carefully at that policy and consider whether it should be sustained in the future. The two lay members of the Tribunal, with a lot of industrial experience, were very surprised at this particular policy. The Kent Decision[25]We turn to the decision in the Kent case. The Kent police similarly responded to the Appellant's application by contending that it was out of time and that it would not be just and equitable to grant an extension. At the beginning of the hearing before the Tribunal, however, that was on 3 December 2001, the Appellant's representative sought leave to add a fresh ground to the Originating Application. He wished to add a ground to the effect that the Kent Constabulary had aided and abetted both the Avon and Somerset Police and the South Wales Police in discriminating against the Appellant.[26]Accordingly, the Tribunal had two matters to consider. First, whether they should permit the original application to go forward, albeit out of time, on the grounds that it was just and equitable to do so. Second, whether they ought to grant the amendment to the original application. As to the first matter, they reached the conclusion that in the circumstances, it was just and equitable to let the case go ahead. We note that there was not the same difficulty with documents having been destroyed as in the South Wales case. There is no appeal against that Decision of the Tribunal.[27]However in relation to the amendment, they exercised their discretion against permitting the amendment to be made. In reaching that conclusion, the Tribunal held that the amended claim was not simply putting a different legal label on existing facts, but involved making a fresh and quite independent cause of action under section 33 of the Race Relations Act . We think they were plainly right in that conclusion, and indeed, Mr Gumbiti-Zimuto does not contend to the contrary.[28]Accordingly, the Tribunal had to consider whether the new claim was in time, and if not, whether time should be extended. It held that, being generous to the Appellant, the latest time by which he must have known the facts pertinent to this particular amendment was 9 August 2001, when he received a letter from the Avon and Somerset Police informing him of communications with the Kent County Constabulary. As we have said, the application was not made until the hearing on 3 December, almost four months later. The reason given for being out of time was that there were complications resulting from the fact that the Applicant was pursuing two separate applications both in Cardiff and in Ashford.[29]The Tribunal refused to permit this amendment and gave its reasons as follows:
"No adequate explanation has been given for the delay in seeking leave to amend. The application to amend should have been made promptly. We accept Miss Garner's submission that the delay would make it more difficult for the Respondent to investigate the proposed allegation. In all the circumstances we have decided not to allow the proposed amendment."
Mr Gumbiti-Zimuto puts the case in relation to this matter very shortly. He submits that there was simply no basis on which the Tribunal could properly have found that there would be any prejudice to the Respondent. The way in which the amendment was put simply relies upon the communication of certain information from the Kent Constabulary to the other two Forces. The relevant material, and any relevant investigations which bear on that matter, will have to be carried out in any event when the Kent Constabulary is defending the claim that it has discriminated, which claim was allowed to go forward by the Tribunal.[30]The only additional factor, he says, is the fact that certain information, relied upon by Kent, was then communicated to the other two Forces. There appears to be a mass of evidence which would confirm that fact, but in any event, it is not a matter in which the Respondent Force could seriously suggest that they had been prejudiced. Unfortunately, we have not had the opportunity of hearing any submissions from the Respondents because they are unrepresented before us today. We have reached the view that we agree with the submissions made by Mr Gumbiti-Zimuto. It is very difficult to see what prejudice there is in this case to the Kent Force, simply by adding this particular ground.[31]We have considered whether, in the circumstances, it would be right for us to substitute our view for the Tribunal and to say that this amendment should be permitted, but we have reached the view that it would be wrong to do so. It is not entirely plain what the prejudice was that was identified before the Industrial Tribunal, and, in any event, it was not the only reason which influenced the Tribunal in the conclusion that it reached.[32]So, again, although we have some reluctance in adding to the time and cost involved in these proceedings, we think that the right course for us to adopt is to remit this case to a fresh Tribunal to consider whether or not to allow that particular amendment. Accordingly, the appeal succeeds.