MR S HUSAIN v (1) THE CHIEF CONSTABLE OF AVON AND SOMERSET POLICE (2) THE CHIEF CONSTABLE OF SOUTH WALES POLICE [2004] UKEAT 0217_04_1506

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0217_04_1506Case No Appeal No. UKEAT/0217/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S HUSAINAPPELLANT(1) THE CHIEF CONSTABLE OF AVON AND SOMERSET POLICE (2) THE CHIEF CONSTABLE OF SOUTH WALES POLICERESPONDENT
Before
His Honour Judge Birtles Mr J HoughamDate 15 June 2004
[1]APPEARANCES For the Appellant MR ANDREW GUMBITI-ZIMUTO (of Counsel) Kings Bench Walk 6 Kings Bench Walk Temple London EC4Y 7DR For the First Respondent For the Second Respondent MR JONATHAN WALTERS (of Counsel) Instructed by: Avon and Somerset Police Police HQ PO Box 37 Valley Road Bristol BS20 8QT South Wales Police Legal Services Police Headquarters Cowbridge Road Bridgend CF31 3SU SUMMARY This appeal concerned the correct application of the principles for amending an Originating Application claiming race discrimination and the power to extend time under section 68(6) Race Relations Act 1976 HIS HONOUR JUDGE BIRTLES This is an appeal from the Decision of an Employment Tribunal sitting in Cardiff on 15 October 2003. The Decision was entered in the register and sent to the parties on 6 November 2003. The Chairman was Miss C Collier; the members were Mr M Javed and Mrs M Small. The unanimous Decision of the Tribunal was that the Tribunal had no jurisdiction to hear the Originating Application brought by Mr Husain against the Second Respondent, that is the Chief Constable of South Wales Police, and that the application by Mr Husain for leave to amend the Originating Application be refused.[2]The material facts are set out in paragraphs 5 - 20 of the Employment Tribunal Decision, and their conclusions are at paragraphs 20 and 21. Today, the Appellant has been represented by Mr Andrew Gumbiti-Zimuto, and the Respondents by Mr Jonathan Walters. We are grateful to both Counsel for their Skeleton Arguments and cogent submissions.[3]It is not necessary to recite all the material facts, save these: Mr Husain is of Pakistani national origin and he made a job application to the Second Respondent, the Chief Constable of South Wales, in May 2000. By 30 June 2000 he became aware that he had not been shortlisted. The job was offered to a black female who turned it down and the post was subsequently re-advertised.[4]On 10 January 2001 Mr Husain was arrested and questioned by officers of the Avon and Somerset Police on suspicion of attempting to obtain a pecuniary advantage by deception by applying for jobs with British police forces. Subsequently, in March 2001, he was informed that no further action would be taken against him, and it was accepted that there had been a mistake by the Avon and Somerset Police in believing that Mr Husain had committed any deception.[5]On 25 January 2001 Mr Husain presented his Originating Application against three police forces, including the Second Respondent. We have been told, and accept, that the cases against the Chief Constable of the Avon and Somerset Police and the Chief Constable of Kent Police are proceeding in other tribunals. There was a hearing before an Employment Tribunal which resulted in an appeal to this Tribunal, and that appeal came before a panel of the Employment Appeal Tribunal presided over by Elias J on 21 November 2002. We have read the judgment of Elias J and seen the Order made following that hearing.[6]The Employment Appeal Tribunal allowed the appeal, apparently on one ground and remitted the matter to a fresh Employment Tribunal. Unfortunately the order made on that occasion would appear to suggest that the whole matter had been remitted to a fresh Employment Tribunal. Be that as it may, it does not appear that any point was taken before the fresh Employment Tribunal about the scope of the remission and that Employment Tribunal, which sat on 15 October 2003, heard the matter again in toto. It is from that decision that this appeal relates.[7]The Originating Application, as I say, was received at the Cardiff office on 25 January 2001. It appears as tab 5 of our bundle. It is in a fairly conventional form, setting out the Appellant's race, the fact that he had made applications for positions with a number of police forces, including the Avon and Somerset Police, the South Wales Police and Kent County Constabulary: see paragraph 3.[8]Paragraph 5 of the Originating Application again refers to those applications and says this:
"In respect of the South Wales police application the Applicant chased this up and was advised that no one had been shortlisted and that the post was to be re-advertised."
Mr Gumbiti-Zimuto accepts that the date when Mr Husain was told that he was not successful was 30 June 2000.[9]The Originating Application goes on to deal with the circumstances of Mr Husain's arrest on 10 January 2001 and refers to the fact that the interviewing police referred to Mr Husain's applications for positions with the Avon and Somerset Police and South Wales Police and Kent County Constabulary: see paragraph 7. Paragraph 8 of the Originating Application says this:
"8 The Applicant was deeply shocked by the course of events resulting from his applications for employment with the three Respondents. The Applicant considers that the circumstances of his arrest evidence that his applications for employment to the three Respondents were not taken at fact value and consequently his applications were not considered on merit. The Applicant considers that his applications for employment were therefore treated less favourably than other applicants and that they were treated less favourably on the grounds of race. 9 The Applicant considers the three Respondents unlawfully discriminated against him on the grounds of race contrary to Section 1(1) of the Race Relations Act 1976 through the arrangements they make for the purposes of determining who should be offered employment and/or in the terms in which they offer employment and/or refusing or deliberately omitting to offer the Applicant employment."
[10]The only other matter I should refer to in the material facts is that by a letter received by the Employment Appeal Tribunal's office in Cardiff on 28 March 2003, the solicitors acting for Mr Husain, the Cardiff Law Centre, made an application to amend the Originating Application to include a further claim that South Wales police knowingly aided Avon and Somerset Police in subjecting him to unlawful discrimination on the grounds of race. The written application setting out the details of that avers that on or about 4 October 2000, a Detective Constable White of the South Wales Police provided a copy of his report dated 31 May 2000 to a Detective Sergeant Bernie Young of the Avon and Somerset Special Branch, in the knowledge that Mr Husain was applying for a post with the Avon and Somerset Police.[11]Before us today, Mr Andrew Gumbiti-Zimuto has argued three separate grounds of appeal and we will deal with those in the order in which they were argued before us.[12]Ground 1 relates to section 4(1)(a) of the Race Relations Act . The submission is that when one reads the Originating Application, in particular paragraphs 8 and 9, to which I have referred, it is clear on the face of the Originating Application that that was in fact a claim in time because there is specific reference to the arrest on 10 January 2001 and it is averred that that is part of the arrangements made by the Second Respondent in refusing Mr Husain employment, that decision being notified to him on 30 June 2000, some six and a half months previously.[13]We have carefully considered Mr Gumbiti-Zimuto's submissions, but we are unable to accept them in respect of Ground 1. Albeit that the construction of section 4(1)(a) of the Race Relations Act is a mixed question of fact and law, we can find nothing in the Originating Application which indicates to us that there is any relationship at all between the arrest on 10 January 2001 and the refusal of the employment on 30 June 2000. There is nothing which suggests that the two are related in any way, and in the absence of any clear averment which shows a causal connection between the two, we are unable to accept that the Originating Application was one which was made in time. There was no error of law by the Employment Tribunal.[14]Ground 2 relates to the exercise by the Employment Tribunal of its discretion under section 68(6) of the Race Relations Act . This is put in the Notice of Appeal in two ways: see paragraph 6.5 and 6.6. 6.5 alleges that the Employment Tribunal erred in law in failing to take account of a relevant factor, namely that within the Originating Application there was an allegation which was made inside the time limit for the presentation of claims, that time limit of course being three months. For the reasons that we have already given, we have decided that the Employment Tribunal were correct in law in deciding that the Originating Application was out of time. It follows that there is no substance in this ground of appeal.[15]The second way the matter is put in paragraph 6.6 of the Notice of Appeal is that the conclusion that it was not just and equitable to extend time in respect of the Originating Application was because the Tribunal had failed to address the issue of the proposed amendment. In other words, it had failed to account of a relevant consideration, namely that there was an application for an amendment. If granted, that amendment would go back to the date of the Originating Application, 25 January 2001.[16]In essence Mr Gumbiti-Zimuto's submission is that the Employment Tribunal got things the wrong way round. What they should have done was to have dealt with the issue of the amendment, looked at it, seen whether they were minded to grant it and then go on to consider their discretion to extend time for the Originating Application under section 68(6) of the Race Relations Act . In our judgment, there is no substance in this submission. There is no rule of law which says that an Employment Tribunal must proceed in the order suggested by Mr Gumbiti-Zimuto.[17]It is quite clear that the Tribunal had the matter of the amendment in mind: it was something that was being argued before them, and indeed had been remitted to them by the Employment Appeal Tribunal on the previous occasion. They were clearly aware of it; they had the document with the proposed amendment in front of them, and indeed of course it was an amendment which had been proposed as long ago as 28 March 2003. We see no error of law here.[18]In his submissions Mr Gumbiti-Zimuto referred to the fact that the Tribunal had erred in taking account of prejudice to the Respondents by the fact that they destroyed the applications for employment relating to all of the candidates some three months after the recruitment exercise. He pointed out that given the way that Mr Husain now put his case, which was the arrest on 10 January, what was relevant were not the papers relating to the applications made in the early summer of 2000, but the papers relating to the arrest and leading up to the arrest, on 10 January 2001. That is not an argument which appears in his grounds of appeal, or indeed in his Skeleton Argument. We have considered his application for leave to amend the Notice of Appeal, but in our judgment it would not be right to do so at the end of an appeal, and that application is therefore refused.[19]Finally, we come to Ground 3 and that relates to the proposed amendment, to which I have referred. In our judgment, the Employment Tribunal were correct to find, at paragraph 22 of its Decision, that there was nothing left to amend. Having reached that stage of the proceedings, there was no live Originating Application which could be amended: the logic is impeccable.[20]For those reasons this appeal is dismissed.