MR TUNDE APELOGUN-GABRIELS v (1) LONDON BOROUGH OF LAMBETH (2) MR B HOLMES [2003] UKEAT 1108_02_1501

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 1108_02_1501

Case No Appeal No. EAT/1108/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR TUNDE APELOGUN-GABRIELSAPPELLANT

(1) LONDON BOROUGH OF LAMBETH (2) MR B HOLMESRESPONDENTS

Before

Mr Justice Rimer Mr K Edmondson Mr T Haywood

Date 15 January 2003

[1]APPEARANCES For the Appellant MR TUNDE APELOGUN-GABRIELS (the Appellant in Person) THE HONOURABLE MR JUSTICE RIMER This is the preliminary hearing of an appeal commenced by Notice dated 15 October 2002 by Mr Tunde Apelogun-Gabriels. It is against a decision of the Employment Tribunal sitting at London (South). The Chairman was Mr A M Snelson. The hearing took place on 22 August 2002 and the Tribunal's decision was sent to the parties on 4 September 2002. There were two respondents to the appellant's application: the London Borough of Lambeth (which we will call "Lambeth") and Mr Bernie Holmes. The decision of the Tribunal was that the appellant was precluded by the operation of the principles explained in Henderson v Henderson (1843) 3 Hare 100 from pursuing certain complaints he had raised in various paragraphs of his amended originating application.

[2]We say straight away that we propose to direct that the appeal may proceed to a full hearing. It is not the current practice of the Employment Appeal Tribunal to give a reasoned judgment when making such a decision on a preliminary hearing. However, the issue raised by this appeal is, we consider, not straightforward and nor in our view does the appellant's notice of appeal, or indeed his argument, identify the real point in the case and so we have formed the view that we should explain why we consider that a full hearing is justified.

[3]The case has something of a history but in their extended reasons the Tribunal explained that the only matter before them was a preliminary hearing directed to ascertaining the scope of the matters that the appellant might legitimately raise at a full hearing on the merits.

[4]The relevant background, as related in paragraph 1 of the Tribunal's Reasons, is that in an earlier application which he commenced in 1998 (case number 2304762/98) the appellant brought a series of complaints against both Lambeth and a Mr Ivor Bowry. On 17 April 1999, there was a directions hearing in that application before Mr J Warren sitting alone. Mr Warren directed the appellant, within a period expiring on about 6 July 1999, to deliver an amended originating application. The express purpose of that was to bring all the appellant's complaints to date within those proceedings. All three parties apparently agreed to that and no objection was raised to the fact that, somewhat unusually, it would in part involve the inclusion of allegations post-dating the originating application. We presume that the application was so amended, although the form of the amended application is not before us.

[5]On 2 September 1999, there was a further directions hearing, this time before a full Tribunal, chaired by Ms C Hyde. That Tribunal decided certain jurisdictional matters – the nature of which we are not aware – but also permitted the appellant to make yet further amendments to his originating application. The particular matters which the appellant wanted to add in by amendment did not include certain events said to have happened on about 17 and/or 23 August 1999: they related to other matters. By way of anticipation of the question raised by the present appeal, it is those events which became the subject of a further application, a fresh one, which the appellant later commenced in March 2000. The Tribunal whose decision is under appeal found that the appellant did not, either on 2 September 1999 or at any subsequent stage, seek to bring these matters within the scope of the 1998 proceedings.

[6]The appellant's application in those proceedings, as at least twice amended, was heard over 9 days in November 1999 and the dates for such hearing had already been fixed as at the date of the directions hearing held earlier in September. The substantive hearing was heard by a Tribunal chaired by Mr D Booth and the outcome was that the appellant's complaints were dismissed. We should mention that the Tribunal whose decision is subject to the present appeal found that one issue before that Tribunal (that is to say the Tribunal chaired by Mr Booth) was whether Mr Bowry had recorded a false time on an email sent to the appellant on 3 June 1999 and then based a complaint against the appellant on that false email. The Booth Tribunal acquitted Mr Bowry of that allegation, holding that the error in the recorded time on the email was attributable to a systems failure. The appellant appealed against the decision of the Booth Tribunal but his appeal was dismissed.

[7]The proceedings which are the subject of the present appeal have the case number 2301288/00 and the appellant presented them on 13 March 2000. The respondents are, once again, Lambeth but this time the appellant joined as an individual respondent Mr Holmes. The appellant stated in his application that he had been employed by Lambeth as an accountancy assistant from 2 April 1990 to date and his complaint in the fresh proceedings is that he had been the subject of racial discrimination and victimisation, contrary to the Race Relations Act 1976 . He gave details of his complaints and they were that on 23 August 1999 Mr Holmes had "conspired and instigated with Mr Ivor Bowry to levy against me two victimising complaints thereby contravening the provisions of the Race Relations Act 1976 , section 2 (1) (a) by reason that I had brought proceedings against [Lambeth] and Mr Ivor Bowry", that being presumably a reference to the 1998 application. He then set out in paragraph 2 of his application that on 24 August 1999 (although this is, as Mr Apelogun-Gabriels confirmed this morning, a mistaken reference for 31 August 1999) he lodged a "misconduct-grievance" against Mr Holmes to Lambeth's higher management. He asserted in his application that Mr Holmes had bullied and harassed him, in particular by improperly asking for his password, and had thereby treated him less favourably within the meaning of section 2 (1) (a) of the 1976 Act "by reason that I had brought proceedings against the Respondent" which we take to be a reference to Lambeth "Mr Ian Ward (his friend) and Mr Ivor Bowry." In paragraph 3, the appellant said that by a letter of 29 February 2000 Mr Holmes communicated to him the panel's findings on the complaint he had lodged at the end of August 1999.

[8]Lambeth's response to that application in their notice of appearance dated 25 April 2000 was short. It said that, by a letter of 23 August 1999, Mr Holmes informed the appellant that he was investigating two complaints which Mr Bowry had made against the appellant and that by the letter of 29 February 2000, to which the appellant had himself referred, Mr Holmes told the appellant that Mr Bowry's grievance against him had been upheld. It said further that the appellant had lodged a grievance against Mr Holmes on 31 August 1999 and that by a letter of 10 March 2000 Lambeth told the appellant that his grievance had not been upheld. Lambeth denied the appellant's allegations of discrimination, victimisation, harassment and bullying. It said that his complaints were out of time and had no reasonable prospect of success.

[9]A preliminary hearing in the new proceedings took place on 13 September 2000 before a Tribunal chaired by Mr D Milton. The Tribunal recognised that the appellant's complaints were well out of time but took the view that, because he had been pursuing a complaint by way of Lambeth's internal procedures, he had explained the delay sufficiently and they held that he should be entitled to proceed with the application, thereby presumably exercising the jurisdiction conferred on them by section 68 (6) of the Race Relations Act 1976 .

[10]An appeal against that decision to the Employment Appeal Tribunal succeeded, largely on the ground that it was held that the Employment Tribunal had placed a disproportionate weight on the pursuit of the internal procedure, which was merely one of the factors to be considered. The case was remitted to a fresh Employment Tribunal to consider the question of jurisdiction in the light of the EAT's judgment. The argument before the Employment Appeal Tribunal also raised questions as to whether the appellant was estopped from bringing certain of the claims outlined in his fresh proceedings, on the basis that he could and should have brought them as part of his 1998 application. The appellant sought to appeal against that decision of the Employment Appeal Tribunal to the Court of Appeal. Whether or not he obtained permission to pursue that appeal we do not know but either way his appeal, or, if he did not obtain permission, his application for permission, failed.

[11]As a result of all that the matter went back to the Employment Tribunal and at a directions hearing on 1 July 2000, held by Mr Snelson sitting alone, a preliminary hearing was directed to be heard as to the merits of the respondents' jurisdictional defences based on arguments of res judicata and issue estoppel. There was also, if necessary, to be argument on the appellant's delay in commencing the new proceedings.

[12]As we have said, the hearing of that preliminary issue took place in August 2002, and in its extended reasons the Tribunal held that the estoppel principles which were explained in the now relatively ancient case of Henderson v Henderson , but which have of course been the subject of much more recent consideration by the courts, apply equally to Employment Tribunals. They then turned to the specific points they had to consider. The first matter they considered was that paragraph 3.2 of the by then amended originating application repeated the allegation that a false time had been entered on the email sent by Mr Bowry to the appellant on 3 June 1999. That allegation had been the subject of the appellant's unsuccessful complaints in the 1998 proceedings. The Tribunal recorded in its reasons that the appellant conceded that he could not reopen that particular allegation in the new proceedings and explained that he was merely including it in order to set the context of his claims against Mr Holmes. But the Tribunal added that, had he sought to maintain that that allegation could survive as a separate source for complaint, it would have held that he was precluded from doing so by the principles of res judicata . We do not think it necessary to refer further to that aspect of the matter because we do not understand the appellant to be seeking to argue otherwise on his present appeal.

[13]The Tribunal then turned to the allegation raised in paragraphs 3.4 to 3.7 and in paragraph 5.5 of the amended originating application. The former paragraphs were directed to raising the allegation that on about 23 August 1999 Mr Holmes induced Mr Bowry to make a complaint against the appellant, that matter being the subject of the recourse which the appellant then had to Lambeth's internal grievance procedure on 31 August 1999. The latter paragraph made the allegation that on 17 August 1999 Mr Holmes made an inappropriate request of the appellant for a computer password.

[14]The Tribunal held that the raising of these allegations in the new proceedings did involve an infringement of the principles deriving from the Henderson case, since on its view they went to points which could and should have been raised by amendment in the 1998 application, albeit that it would have involved joining Mr Holmes as a respondent. They held that there was no justification for the appellant starting the fresh proceedings he later did start because there were, so the Tribunal held, no special circumstances justifying the appellant in being permitted to do so. The Tribunal rejected the appellant's argument that it could and should mitigate the application of the Henderson principle by reference to the fact that, while section 68 of the Race Relations Act 1976 imposed relatively tight time limits on the bringing of discrimination claims, section 68 (6) gave the Tribunal a jurisdiction to extend time if in all the circumstances it considered it just and equitable to do so.

[15]Before us, in his oral argument, Mr Apelogun-Gabriels (the appellant) placed, as we understand it, primary reliance on the argument that section 68 entitled him to bring a claim in respect of the matters he was complaining of to the Employment Tribunal and section 68 (6) gave the Tribunal a jurisdiction to extend time if it was just and equitable to do so. That, he said, was a complete answer to the point raised based on the contention that he was prevented by the principles of estoppel from bringing the later claims.

[16]With respect to the appellant, who is not a lawyer, we are disposed to agree with the Tribunal that that argument is really of no assistance to him whatsoever and that the jurisdiction which exists to extend time for the bringing of discrimination claims conferred by section 68 (6) of the 1976 Act was entirely irrelevant to the determination of the estoppel issue before them. The point is that the bringing of claims, whether before the ordinary courts or before statutory tribunals, is almost invariably subject to a time limit of one sort or another but we cannot see what that has got to do with whether the bringing of a particular claim ought to be prevented by the particular principles of estoppel with which the Tribunal was concerned. The fact that the proceedings commenced in March 2000 were, on the face of it, out of time, is merely an additional hurdle for the appellant to have to overcome. If he had brought them within the permitted time, but after the decision in the 1998 proceedings, the estoppel points raised by the respondents in answer to them would have been just as arguable and it would have been no answer to them that the proceedings had been brought in time. It is almost invariable that in the type of situation in which the second, and challenged, set of proceedings is sought to be struck out on the basis of estoppel, those proceedings will have been brought within the time permitted by any relevant statute, since if they have not been so brought there will usually be a much simpler and more straightforward basis on which they can be struck out.

[17]In our view, however, the real question in this appeal is whether the Tribunal in fact directed themselves correctly as to the applicable test. The heart of the Tribunal's reasoning is to be found in paragraph 12 (2) of their decision, where they said: (2) "…we are satisfied that the principle of Henderson v Henderson is engaged and the question for us is whether special circumstances operate to shield the Applicant from its severe effect."

[18]If any estoppel was involved in this case, it was estoppel of the wider kind referred to in the Henderson case. There was no question here of the disputed issues being the subject of res judicata . This is because this is not a case in which the disputed issues have already been decided – it is one in which they have not been decided. We recognise that the way in which the Tribunal posed the question it had to decide finds solid support in many of the modern authorities. But the authority to which they do not refer and which contains the most recent and illuminating discussion of the principles with which the Tribunal was concerned is the relatively recent decision of the House of Lords in Johnson v Gore Wood & Co (a firm)

[2001] 2 WLR 72

. That was not an employment case but we would consider it strongly arguable that the approach favoured by the House of Lords in that case was equally applicable to the type of problem with which the Tribunal was faced in the present case.

[19]The speech of Lord Bingham of Cornhill discusses the principles and decided cases between pages 81 and 90 and identifies the real principle – or at any rate the real question – as being whether or not the second set of proceedings involves an abuse of process.

(f) he said:

"While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances."

[20]Lord Millett's speech, especially at page 118, is also very valuable. He points out that, to deny a claimant's right to bring a claim which has not been the subject of previous determination is prima facie a denial of his rights guaranteed by

Article 6 of the European Convention on Human Rights

. He made observations which can be said to support the view that in the present case the only question for the Tribunal was whether the bringing of the disputed claims in the application commenced in 2000 was oppressive or was otherwise an abuse of the process made available to the appellant under the Race Relations Act 1976 .

[21]In our judgment, that rather broader way of assessing the issue which was before the Tribunal is not necessarily the same as the perhaps rather narrower way in which the Tribunal in fact assessed it. It has to be borne in mind that Mr Holmes was not a party to the 1998 proceedings and might perhaps have objected to being added to them so as to be made the subject of claims post-dating the 1998 application. Perhaps more significantly, can it be said to have been unreasonable of the appellant not to have sought to raise these claims in September 1999, when he had anyway sought to have them, or at least part of them, resolved by his recourse to Lambeth's internal procedures, being a recourse which might have produced an end result satisfactory to him before the final disposal of the 1998 proceedings and which would have made the raising of them by complaint in those proceedings unnecessary? We consider that it is also relevant to ask whether it was any way realistic in September 1999 to seek to add these further issues into the then proceedings and also to add a new party, Mr Holmes, to the proceedings without prejudicing the hearing date for the 1998 application which, as we have said, had by then already been fixed.

[22]We pose these questions, which we do not regard as necessarily exhaustive, but we stop short of venturing any answers to them. We pose them simply to indicate that in our view there is an arguable point that the Tribunal may perhaps not have approached the issue before it on the correct basis and that there is sufficient in this appeal to justify the conclusion that, if the Tribunal did misdirect itself, there is scope for an argument on the full hearing of the appeal that the decision it reached was incorrect.

[23]For those reasons we propose to direct that the appeal may proceed to a full hearing. As regards the further directions which we need to give we are disposed to suggest that the case should go into Category B. We will direct an exchange of Skeleton Arguments not later than 14 days before the date fixed for the hearing.