MR S DEMAN v (1) UNIVERSITY OF BRADFORD (2) MR P BUNTING (3) MR S RICE-BIRCHALL [2003] UKEAT 0572_03_0511

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 0572_03_0511

Case No Appeal No.UKEAT/0572/03

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR S DEMANAPPELLANT

(1) UNIVERSITY OF BRADFORD (2) MR P BUNTING (3) MR S RICE-BIRCHALLRESPONDENT

Before

His Honour Judge Birtles

Date 5 November 2003

[1]APPEARANCES For the Appellant MISS E MISRA of Counsel) Instructed by: Council for Ethnic Minority 55 Montcalm Road Charlton London SE7 7QG For the Respondent MR J CAVANAGH QC (of Counsel) Instructed by: Messrs Eversheds Solicitors Cloth Hall Court Infirmary Street Leeds LS1 2JB HIS HONOUR JUDGE BIRTLES This is the full hearing of an appeal from the Decision of a Tribunal sitting at Leeds. The Chairman was Mr Colin Grazin. Before dealing with the legal submissions, I think it is important that I should set out the chronology. The Originating Application is dated 31 December 2001 and claims discrimination against the then three Respondents in respect of a job application to the First Respondent, the University of Bradford.

[2]There was an interlocutory hearing on 27 May 2002 which clearly went into a number of different matters. Mr Deman was present in person and the Respondents were represented by Mr Rice-Birchall, a solicitor acting for them all. The Decision of the full Tribunal, chaired by Mr Grazin, was sent to the parties and entered on the register on 12 June 2002. As I say it dealt with a number of matters which are not the subject of this appeal, but the material part related to an application to amend the Originating Application to deal with another application for employment made by the Appellant. The Tribunal considered that application to amend, found as a fact that the date of the incident which Mr Deman wished to add to the claim was out of time, and then considered whether it was just and equitable to extend the time limit. That jurisdiction arises, of course, under section 68(6) of the Race Relations Act 1976. The Employment Tribunal heard evidence from Mr Deman and also heard submissions from both Mr Deman and from Mr Rice-Birchall.

[3]Those submissions are summarised in paragraph 33 of the Employment Tribunal's Decision, and the Tribunal there sets out six factors which it specifically considered. They are: relative prejudice; the general circumstances of the case; the length of and the reasons for the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the parties sued had co-operated with any request for information, and the promptness with which the Applicant had acted once he knew the position.

[4]Having considered all of those factors the Tribunal then concluded that the circumstances pointed overwhelmingly in favour of exercising their discretion in favour of the Applicant, and in particular because of the extent to which the First Respondent, the University, had co-operated with any request for information. The Tribunal decided that it would be just and equitable to extend the time limit. I should add that at that stage there was no reference made, as recorded by the Tribunal, to any further application to amend the Originating Application in respect of another failed application by Mr Deman for employment at the University.

[5]The next thing that happened was that there was a telephone directions hearing on Wednesday 19 June 2002. Mr Deman represented himself and Mr Rice-Birchall acted for the two remaining Respondents, the University and Mr Paul Bunting. The contents of the telephone directions hearing are recorded in writing and were issued on 24 June 2002. They go through many of the matters which one would expect in a telephone directions hearing and in particular ordered that the Tribunal hearing should commence on 9 December 2002 and conclude on 13 December 2002. The time estimate given was therefore one of five days.

[6]In the event, those five days were exceeded and the position today is that the hearing took place between those two days, and there has been a further hearing this year of four days, and there is a further hearing of five days due to commence, I think, on 17 November 2003. It is hoped that the case will then be concluded.

[7]The material paragraph of the telephone Directions Order is at paragraph 8, and it says this: "Potential Amendment The applicant raised a potential amendment to the complaint to deal with a later candidacy for employment with the respondent. In the absence of any draft application to amend in writing, the Chairman was unwilling to deal with it. He indicated that any such request would be dealt with on its merits. The applicant should understand, as was indicated at the time, [that being 19 June] that apparent time problems arise in respect of any application to amend and/or any new originating application in respect of events which occurred, as the Tribunal understands the position, in or about November 2000. Nonetheless any such application will be considered on its merits in due course. If necessary a further hearing will be convened to consider the representations of both sides" [I emphasise the words "if necessary"]

[8]The next thing that happened, in time, was that Mr Deman made application to amend his Originating Application. That was by letter dated 22 July 2002. It is in these terms, addressed to the Regional Secretary of the Leeds Employment Tribunal:

"Dear Sir/Madam Enclosed please find a copy of my amended complaint with the request to allow the amendments. I have highlighted the amendment in the original complaint for your convenience. I would be grateful if you would let me know how you wish to proceed."

[9]Attached to it was the document headed "Grounds in Support of my Originating Application" and at the second page the amendment is highlighted; it says this:

"On 10 November 2002 I also applied for the post of lecturer in the Department of Applied Social Sciences … During this time the respondent continued to take receive discriminatory instructions from Mr Rice-Birchall not to respond to my job applications as he was actively engaged in pursuing an application under s-33 proceedings and was made aware that such proceedings have been issued. Mr Rice-Birchall assured the Respondents, they have nothing to fear as the applicant would not be able to bring proceedings in the Tribunal without the permission of the EAT as he was likely to be declared vexatious. Eventually, this exercise turned out to be an exercise in naivete despite active support of HHS Prophet, Mr Sneath, Mr Gazin's and some other members of the tribunal's judiciary. Incidentally, HHJ Prophet, President of the Tribunal, Mr Rice-Birchall, Andrew Taylor and John Sparks were using the same terminology. Clearly, Mr Rice-Birchall as an agent and/or employee of the University of Bradford engaged in contacting the applicant's past and potential employers in relation to job applications and he also engaged in aiding and abetting discriminatory practices and disadvantaging the applicant because of his racial origin and because he carried out the protected acts. In fact, the Respondent was operating its discriminatory regime through Mr Rice-Birchall."

[10]It is not necessary for me to form any view or to make any view about the content of that proposed amendment, I simply note that when it says on 10 November 2002, it is accepted by both sides that that is a typographical error and it should read "10 November 2000". The next event is on 1 August 2002, when the Regional Office of the Employment Tribunal in Leeds sent a letter to Mr Deman which said this: "Your correspondence dated 22 nd July 2002 has been referred to a Chairman of the Employment Tribunals (Colin Grazin). The Chairman has agreed to the amendment in the final paragraph of the ET1 only." [This is not material to this appeal]

[11]The Chairman has refused the amendment in the first full paragraph of page 2 for the following reasons:

"1 It relates to an application for a post in November 2002. That cannot be correct. 2. Even if I take it that the Applicant intends to refer to November 2001, that date is substantially later than the date of the events referred to in the Originating Application and there is no apparent connection between the two matters, other than the identity of the parties. I note, for example that the post referred to is in a different department. 3. If I am correct as to the date, the presentation of the further complaint would be substantially out of time without some explanation, it would not be just and equitable to allow such a late amendment. 4. The Applicant continues to complain against Mr Rice-Birchall. It has already been decided (I appreciate that there is an appeal) that Mr Rice-Birchall is not properly a part to these proceedings."

The Chairman further directs that the parties are required to comply with the Directions of the Tribunal as ordered on 19 th June 2002." I interpolate here that of course the Chairman in fact was incorrect about the date because, as I have indicated, the correct date was not November 2002, or indeed 2001, but November 2000" So, by 1 August 2002 the date of the incident which Mr Deman wished to rely on for his proposed amendment was nearly some two years out of time.

[12]A response was sent to that letter by the Council for Ethnic Minority, acting on behalf of Mr Deman. That letter is dated 14 August 2002, it says this:

"Enclosed please find a corrected copy of Mr Deman's amended complaint with the request to allow the amendments in light of the correction. Perhaps, you are aware Mr Andrew Graham represented Mr Deman at the preliminary hearing. We act on behalf of Mr Deman and would like you to reconsider your decision on the following grounds. 1. A full Tribunal under your Chairmanship has already decided that it was just and equitable to allow of out time application which predates the amended application; 2. The amended application was in relation to job application for 10 th November 2000 rather than 2002. If it was just and equitable to allow out of time application for a job application for 13 March 2000 then how could it not be just and equitable to allow Mr Deman's job application for 10 th November 2000 (without repeating the reasons of the full Tribunal)? 3. The fact that the Chairman has allowed Respondent's grounds for resisting the claim then how there will be any prejudice to the Respondent in defending the amended claim when Economics fall under the Social Sciences; 4. The Chairman has made the decision without a preliminary hearing although he had agreed to do so. We respectfully submit that were Mr Deman's amended application not allowed the only sensible and logical conclusion a reasonable person could draw would be that Mr Grazin is biased against Mr Deman."

[13]Finally, by letter dated 3 September 2002, the Regional Office of the Employment Tribunals in Leeds replied to that letter in the following terms. "Your letter dated 14 August 2002 has been referred to a Chairman of the Tribunals, Colin Grazin, who has directed that I reply as follows:- "My understanding of the proposed amendment is that the Applicant wishes the Tribunal to make a finding that there was an unlawful act of discrimination against him in failing to appoint him to the post of Lecturer in the Department of Applied Social Sciences, in consequence of an application submitted by him on 10 November 2000. If my understanding of the Originating Application in its amended form is correct, then I refuse the application for the amendment on the basis that the matters of which complaint is made are out of time by some considerable period. Alternatively, if the Applicant makes it clear that he does not wish the Tribunal to make a formal decision on the merits of a further alleged act of discrimination, but merely wishes to rely upon these matters as background evidence in support of the existing complaint, then I would allow the amendment. It is for the Applicant to elect between these two positions. Unless there is an unequivocal acceptance of the second alternative then the application for the amendment is refused. If the Applicant is not willing to accept my proposal above and wishes to make a formal complaint of discrimination in respect of the application for employment in November 2000, then he should submit a further new Originating Application to the Tribunal. A full tribunal will then be convened to consider if the new Originating Application is out of time. Any such haring will, of course, allow the Respondents to take part in those proceedings if they wish" I interpolate that this letter of 3 September does not specifically refer to the just and equitable provision in the Race Relations Act . However, it had been referred to by the Chairman in the previous letter and there can be no doubt in my view that the Chairman had that provision in mind when answering the letter of 3 September 2002. From that Decision of Mr Grazin, Mr Deman appeals to this Tribunal and has been represented today very ably by Miss Misra. The Respondents are represented by Mr Cavanagh QC.

[14]The first submission made by Miss Mizra is that the Chairman should have ordered a hearing, not necessarily an oral hearing, but either should have held an oral hearing or invited Mr Deman to put forward reasons why it would be just and equitable to extend time to permit an amendment to the Originating Application which related to an incident nearly two years before.

[15]The procedure for an Employment Tribunal dealing with an amendment to an Originating Application is set out in the classic case of Selkent Bus Company Ltd -v - Moore [1996 ICR 836 The judgment of the Tribunal was given by Mr Justice Mummery and the guidance is given at page 842F through to 844C. It is not necessary for the purposes of this judgment to set out the whole of that passage, but I will refer to certain parts of it.

[16]First, at 842 G - H, paragraph 2, where Mr

Justice Mummery said this:

"(2) There is no express obligation in the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 requiring a tribunal (or the chairman of a tribunal) to seek or consider written or oral representations from each side before deciding whether to grant or refuse an application for leave to amend. It is, however, common ground that the discretion to grant leave is a judicial discretion to be exercised in a judicial manner, i.e. in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions. (3) Consistently with those principles, a chairman or a tribunal may exercise the discretion on an application for leave to amend in a number of ways. (a) it may be a proper exercise of discretion to refuse an application for leave to amend without seeking or considering representations from the other side. For example, it may be obvious on the face of the application and/or in the circumstances in which it is made that it is hopeless and should be refused. If the tribunal forms that view that is the end of the matter, subject to any appeal. On an appeal from such a refusal, the appellant would have a heavy burden to discharge. He would have to convince the appeal tribunal that the industrial tribunal had erred in legal principle n the exercise of the discretion, or had failed to take into account relevant considerations or had taken irrelevant factors into account, or that no reasonable tribunal, properly directing itself could have refused the amendment. (b) If, however, the amendment sought is arguable and is one of substance which the tribunal considers could reasonably be opposed by the other side, the tribunal may ask the other party whether they consent to the amendment or whether they oppose it and, if they oppose it, to state the grounds of opposition. In those cases the tribunal would make a decision on the question of amendment after hearing both sides. The party disappointed with the result might then appeal to this appeal tribunal on one or more of the limited grounds mentioned in (3)(a) above."

It is not necessary for me to read further but I interpolate to say that there is no such express obligation in the current Employment Tribunal Rules either.

[17]At 843H Mr

Justice Mummery says this at paragraph 5(b):

"The applicability of time limits If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, e.g. in the case of unfair dismissal, section 67 of the Employment Protection (Consolidation Act) 1978"

That is all I propose to read from that. It is clear from the passages that I read that an oral hearing is not as a matter of law required in all cases where an application is made to amend an Originating Application. It must depend upon the circumstances, and, of course, one factor which in the present case is of great importance, is the fact that the event to which the proposed amendment related, was nearly two years out of time.

[18]The only issue that therefore arose was whether it was just and equitable to extend the time limit. The effect of the Tribunal's letter of 1 August, paragraph 3, was to invite the Appellant to put forward reasons why it would be just and equitable to extend the time limit.

[19]The response was the letter from the Council for Ethnic Minority dated 14 August 2002. It put forward four reasons and invited the Chairman to reconsider his decision. Having considered those four reasons, the Chairman then, in the exercise of his discretion, maintained his original decision and refused to extend time, offering instead the solution which I have read. Speaking for myself, I can find nothing in those four reasons which would persuade me that it was just and equitable to extend time.

[20]In the circumstances, I do not think as a matter of law that this Chairman was in error in not holding a hearing in the absence of any cogent representations from the Appellant or his representatives, as to why it would be just and equitable to extend time to allow an amendment nearly two years out of time. Reference is made in paragraph 4 of the letter of 14 August 2002 to an alleged agreement by the Chairman that he would hold a preliminary hearing if an application to amend the Originating Application was made.

[21]That is and can only be a reference to paragraph 8 of the telephone directions hearing of 19 June 2002, which I have read into this judgment. The last paragraph, paragraph 8 says this:

"If necessary a further hearing will be convened to consider the representations of both sides"

That cannot be construed as an agreement to hold a preliminary hearing; the decision to do so as Selkent makes clear, is a matter for the discretion of the Chairman, exercising his discretion in accordance with the Selkent principles.

[22]The second submission put forward by Miss Misra on behalf of Mr Deman is that there was an error of law in the Decision itself. For the reasons I hope I have given, in my view, there was no error of law on the part of the Chairman. In my view, the Chairman was right to reject the application to amend the Originating Application, and it is only necessary in support of that to refer to a short passage in the decision in Robertson -v- Bexley Community Centre

[2003] IRLR 434

at 437, paragraph 25, where Auld LJ, giving the judgment of the Court of Appeal said this:

"It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule. It is of a piece with those general propositions that an Appeal Tribunal may not allow an appeal against a tribunal's refusal to consider an application out of time in the exercise of its discretion merely because of the Appeal Tribunal, if it were deciding the issue at first instance, would have formed a different view. As I have already indicated, such an appeal should only succeed where the Appeal Tribunal can identify an error of law or principle, making the decision of the tribunal below plainly wrong in this respect."

I have already indicated that I find no error of law and would have exercised my discretion in exactly the same way as the Chairman did in this case. For those reasons this appeal is dismissed. Costs

[23]Taking Mr Cavanagh's point first, this appeal has taken just over two hours to hear and I do not think under those circumstances and with the benefit of Skeleton Arguments and Counsel, including leading Counsel, I do not think that in those circumstances it can possibly be said that the appeal had no hope of success. On the other point - Mr Cavanagh's first point that the proceedings were unnecessary, it seems to me that while I accept Mr Deman could have brought a fresh Originating Application he had sought on two occasions an amendment to his Originating Application and he was entitled, in my view, to challenge that by way of an appeal here. If anything, by failing to file a second Originating Application, and apply for it to be heard out of time, and consolidate it with his original case, he has lost out. For those reasons I refuse the application for costs.