MR K T LEWIS v TESCO STORES LTD [2003] UKEAT 0277_03_1106

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 0277_03_1106

Case No Appeal No. PA/0277/03

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR K T LEWISAPPELLANT

TESCO STORES LTDRESPONDENT

Before

Mr Justice Burton

Date 11 June 2003

[1]APPEARANCES For the Appellant No Appearance or Representation By or on Behalf of the Appellant THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This is the hearing of an application under Rule 3 (10), whereby the Appellant, Mr Lewis, has asked the Employment Appeal Tribunal to reconsider an order made by the Registrar under Rule 3 (7) of the Employment Appeal Tribunal Rules 2001 , that the Tribunal had no jurisdiction to hear his appeal.

[2]Rule 3 (7) of the Employment Appeal Tribunal Rules 2001 reads as follows: (7) Where it appears to the Registrar that the grounds of appeal stated in the notice of appeal…do not give the Appeal Tribunal jurisdiction to entertain the appeal, she shall notify the appellant…accordingly informing him of the reasons for the opinion and, subject to paragraphs (8) and (10), no further action shall be taken on the appeal."

[3]Sub-paragraph (8) gives the Appellant the opportunity to serve a fresh Notice of Appeal, or alternatively Rule 3 (10) gives the Appellant the opportunity to express dissatisfaction in writing with the reasons given by the Registrar without submitting any fresh Notice of Appeal. The latter course having been taken by this Appellant, the practice now is that any such lodging of objections leads to a hearing in court in front of a judge by way of reconsideration of the Registrar's Order and that is what has occurred before me today.

[4]The Appellant has in fact not attended, having sent a letter dated 7 June 2003 indicating that he was not planning to come today due to his inability to afford the train fare costs of travelling down to London from Worcester and in consequence asking for an adjournment; but if an adjournment was not granted then assenting to the hearing proceeding on the papers in his absence.

[5]There were no grounds for an adjournment displayed and in any event such application for an adjournment was refused by the Deputy Registrar. The matter has proceeded and I have considered, just as I would have done had he attended, the submissions that he has made in support of his application for reconsideration under Rule 3 (10).

[6]The decision of the Employment Tribunal, against which he has appealed, was given on 27 January 2003. That decision was made, once again, in his absence; but, similarly, after full consideration of the case. The unanimous decision of the Tribunal was that the application by the Appellant was out of time and that the Tribunal was not prepared to extend the time, such that it had no jurisdiction to hear the claim and was dismissed.

[7]The claim which was thus dismissed was a complaint by the Appellant that he had been discriminated against on the grounds of his race by virtue of victimisation by the Respondent, contrary to section 2 (1) of the Race Relations Act 1976 .

[8]The Tribunal sets out what it calls "the brief history of the matter" in paragraphs 4 and following of the decision. They read as follows: 4 "…The Applicant applied for a job as a warehouse worker and stock controller with the Respondent on 18 April 2002. His application was rejected by letter dated 25 April 2002, which appears to have been received by the Applicant on 26 April 2002. On the face of it the time limit to lodge the Originating Application in this case was therefore 25 July 2002. 5 The Applicant had already commenced proceedings in the Employment Tribunal in Birmingham against the same Respondent in case number 5201892/02 and that also alleged race discrimination against the Respondent in 3 job applications that he had made. A decision was made in those proceedings on 24 July 2002… 6 The Applicant had clearly referred to the act complained of in these proceedings in the prior proceedings, and we draw attention to paragraph number 2 of the extended reasons in the earlier case…"

[9]That is a reference to paragraph 2 of the decision of the Tribunal on 24 July 2002 in Birmingham, which read in material part as follows: 2 "At the start of the hearing our attention was drawn to the fact that the Applicant's witness statement refers also to a fourth job application made by him in April 2002 (that is after the date of the presentation of his complaint to the Tribunal in the present case) which was turned down by letter received by him on 26 April. It was explained to the Applicant that he could not give evidence in respect of that job application in the present case because such evidence would not be relevant, but that he could, if he wished, issue a fresh complaint to the Tribunal about that job application and apply for a postponement of the hearing of the present case so as to enable the two complaints to be combined for hearing together. He was warned that if he elected to take that course there was a possibility that the Tribunal might be invited to award costs against him. The Applicant at first said that he wished to take this course and made it clear that he proposed to allege direct race discrimination in respect of the job application in April 2002. However, it then became apparent that the Applicant has already commenced proceedings before the Birmingham County Court in respect of the April 2002 job application, alleging victimisation. The Chairman of the Tribunal explained to the Applicant that he may not simultaneously pursue two complaints under the Race Relations Act about the same matter in two different jurisdictions, since to do so would amount to an abuse of the process of one or other or both of them. In simple terms the Applicant must choose his forum. Having considered his position the Applicant said that he preferred to pursue his complaint in respect of the April 2002 application in the County Court proceedings."

[10]Returning to the decision of the Tribunal in the instant case on 27 January 2003. After making reference to that earlier decision in July 2002, the Tribunal continued in paragraph 6 as follows: 6 "Then [that is, in July 2002], matters were explained to the Applicant and he was told he could issue a fresh complaint. It was also noted at the time that he had issued proceedings in the County Court. It is recited in the Extended Reasons that the Applicant preferred to pursue his complaint in the County Court. 7 The Applicant's claim form in the County Court is at pages 14 and 15 of the bundle. The proceedings appear to have been issued on 18 June 2002 for victimisation…The narrative refers to the 18 April 2002 job application, which was rejected by the letter of 25 April 2002. 8 The County Court action was struck out on 23 August 2002 and the Applicant was also ordered to pay £750 costs to the Respondent. The Applicant then sought leave to appeal that decision, but permission to appeal was refused on 9 October 2002. 9 On 5 August 2002, the Applicant commenced further proceedings at the Birmingham County Court arising out of the same matter. On 20 September 2002 the County Court struck out those proceedings under their case management provisions on their own initiative. The Applicant challenged this point and the hearing took place on 28 November 2002. The Applicant did not appear at that hearing. The County Court confirmed it had no jurisdiction to hear the matter, the Applicant had no reasonable prospect of success and so struck the case out. Furthermore, the order includes another proviso as follows: - "No such application may be made by the claimant to reinstate his claim without leave of the court." 10 It was between his application to have the County Court claim reinstated by his notice dated 25 September 2002 that the hearing of that application on 28 November 2002, that the Applicant commenced the proceedings before us that we are dealing with today on 24 October 2002."

[11]The Tribunal concluded, having set that out, as follows, in the last paragraphs of the decision:

"12 We find and conclude that the Applicant has not established any reason nor offered any reason to explain the delay from 25 July 2002 to 24 October 2002. 13 Furthermore, the Applicant was at the Tribunal hearing on 24 July 2002 when the question of issuing further proceedings in relation to the matter now before us was canvassed. He "preferred" to pursue his complaint in the County Court. 14 Those County Court proceedings were struck out on 23 August 2002, and his application for leave to appeal was rejected on 9 October 2002. 15 If it is the case that the Applicant is suggesting to the Tribunal that the trigger for issuing the proceedings before us today was the sequence of events in the County Court, then that explanation for any delay is unanimously rejected by the Tribunal, as it would simply not be just and equitable to allow the case to proceed as out of time on that basis, that is, waiting to see how he got on in the County Court and when the case was lost start again in the Employment Tribunal."

[12]The Notice of Appeal put in by the Appellant against that decision reads, in the relevant paragraph in which he is intended to set out his grounds, as follows:

"The Appellant…contends that the Birmingham Employment Tribunal erred in law in deciding that it would not be just and equitable to consider the Appellant's complaint on application of victimisation out of the three months time limit, and they also failed to consider the evidence reasonably expected at the trial of the case."

[13]It is of course necessary for a point of law to be identified before this Employment Appeal Tribunal has jurisdiction to entertain an appeal. The words are used there, that the Birmingham Employment Tribunal "erred in law"; but the respects in which it is said to have erred in law do not, at any rate on their face, indicate any ground of law at all.

[14]First, it is simply suggested that the decision was an error, and that is a way in which the Appellant takes issue with the correctness of the decision, and no doubt is concerned about its result, but identifies no point of law by which the decision was allegedly flawed; and he then proceeds to allege that there was a failure to consider evidence, which of course is archetypally a question of a challenge on matters of fact, unless of course it is suggested that there was no evidence upon which the Tribunal could reach the decision it did, which is neither suggested in this case nor plainly, in the light of the history set out by the Tribunal, capable of being so suggested.

[15]The merits of the case were, for obvious reasons, not considered by the Tribunal, because the only issue before the Tribunal was on the question of time and, in any event, no reasons or submissions had been put before it by the Appellant from which any other conclusion could have been reached than the one they did.

[16]The ground on which the Registrar concluded, under Rule 3 (10), that the Employment Appeal Tribunal had no jurisdiction, is set out in the Tribunal's letter to the Appellant dated 4 April 2003 and reads as follows:

" The Appellant failed to present an Originating Application to the Employment Tribunal within the time limit. It is open to the Tribunal to find that it was not reasonably practicable for the complaint to be presented before the end of the time limit and to allow such further period as it thinks reasonable. The Employment Tribunal found as a matter of fact there was no reason [why] he could not have presented this application in time. The Appellant alleges that the Tribunal had insufficient evidence on which to base its decision but did not attend the hearing. The Tribunal provides clear reasons for its decision to exercise its discretion and it is not open to the Appellant to simply assert that it was an error as the Appellant had provided no reasons based on law as to why it is in error. "

[17]The Appellant responded to that conclusion by the Registrar in expressing his dissatisfaction under Rule 3 (10), in material part as follows, in a letter dated 10 April 2003:

"…you say that my notice of appeal does not identify an error of law. Well my answer to that question is quite plainly clear for you to see, my notice of appeal very clearly shows that I am appealing the decision of the Employment Tribunal on the grounds that it made an error of law when it said that on page 3, paragraph 15 of the Employment Tribunal's decision that they find and conclude that the Applicant is suggesting to the Tribunal that the trigger for issuing the proceedings before us today was the sequence of events in the County Court, then that explanation for any delay is unanimously rejected by the Tribunal, as it would simply not be just and equitable to allow the case to proceed as out of time on that basis, that is, waiting to see how he got on in the County Court and when the case was lost start again in the Employment Tribunal. The Appellant, Mr Lewis, contends that the Tribunal's decision was perverse or (Wednesbury unreasonableness)…"

And reference is made to well-known cases in that regard. Then he continues:

"The Appellant, Mr Lewis, further contends that the above Employment Tribunal in reaching their decision did not take account of the appropriate legal rules and relevant facts of the case regarding the evidence…It is that the Tribunal did not exclude irrelevant issues which was the main reason for reaching their decision and it is also specifically contended by the Appellant that it was just and equitable to proceed with the case on the evidence which was prima facie. The Employment Tribunal clearly erred in law in deciding that it was not just and equitable to allow the case to proceed out of time."

[18]It is apparent from a recital of the Appellant's submissions that he does not identify any ground in law or indeed even in fact, even arguably setting out a flaw (or an alleged flaw) in the Tribunal's decision. The Tribunal approached the matter correctly, so far as law is concerned; addressed themselves on the existence both of the jurisdiction and the discretion; correctly recited the facts that had occurred; and reached the conclusion which was open to them and, in my judgment, the only conclusion that was open to them, namely that there was no excuse for the late service of the application.

[19]As no error of law is even indicated, this is not a case in respect of which this Tribunal has jurisdiction and I uphold the decision of the Registrar.