DSG RETAIL LTD v MR S KIRNON [2004] UKEAT 0515_04_0610

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2004] UKEAT 0515_04_0610

Case No Appeal No. EAT/0515/04

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

DSG RETAIL LTDAPPELLANT

MR S KIRNONRESPONDENT

Before

Mrs Justice Cox Ms V Branney Professor P D Wickens

Date 6 October 2004

[1]APPEARANCES For the Appellant MR KEVIN CHARLES (Non-Practising Barrister) Instructed by: Messrs Doyle Clayton Solicitors Cannongate House 62-64 Cannon Street London EC4N 6AE For the Respondent MR TOPE OKUNOWO (Solicitor) Messrs Fakoya & Sims Solicitors 2 Bradbury Street Stoke Newington London N16 8JN SUMMARY Practice and Procedure / Time Limits Application to amend originating application to add a complaint of race discrimination out of time. Appeal against Employment Tribunal's granting of application allowed. Cross-appeal against Employment Tribunal's decision that Unfair Dismissal claim lodged out of time (reasonably practicable to present in time). Cross-appeal dismissed. THE HONOURABLE MRS JUSTICE COX This is an appeal by the Respondent employers (the Appellants) from a Decision on a preliminary issue by the Watford Employment Tribunal, promulgated on 29 April 2004, granting the Applicant's application to amend his Originating Application by adding a complaint of race discrimination. Consequential directions were given on that occasion for the hearing of the race discrimination complaint.

[2]The Tribunal also decided on the same occasion that the Applicant's complaint of constructive unfair dismissal had been presented out of time, that it had been reasonably practicable for the Originating Application to be lodged within the three month time limit, and that they therefore had no jurisdiction to determine that complaint. Against that Decision the Applicant now cross-appeals and, by the direction of this Appeal Tribunal, the Respondents' appeal and the Applicant's cross-appeal have been listed to be heard together.

[3]The relevant background is as follows. The Applicant commenced employment with the Dixons Stores Group in September 1998, based at a Currys store. In November 2002 he became a sales person at the Currys store in Enfield. Whilst he was there, on 28 December 2002, the Applicant was assaulted by a customer and as a result he sustained serious injuries requiring hospital attention. He signed off sick from work and was unfit to work until 24 January 2003. Whilst he was absent on sick leave the Applicant received his full pay.

[4]The Applicant returned to work at the store and had a return to work interview with his store manager when, after some discussion, it was agreed that the Applicant should take a further four weeks away from work in order to allow him to recover fully from his injuries. Subsequently on 20 February 2003 it was agreed between the Applicant and the Human Resources Manager that it was not a viable option for the Applicant to return to the Enfield store, and he was then offered a promotion to deputy manager at the Currys store in North Finchley, which he accepted. He began work as deputy manager there on 18 March 2003.

[5]As the Tribunal found, on 16 April 2003 the Applicant learned that the Manager and Deputy Manager at the Friern Barnet store, about two miles away, had also been assaulted by a customer two days previously. These individuals were Mr Balbir Rana and Mr George Nicholson. Mr Rana had suffered a broken nose in the assault and Mr Nicholson had also been badly beaten up. The Applicant became terrified at the prospect that he too might be assaulted again and he handed in his notice on that day, 16 April. Shortly afterwards, however, the Applicant was asked to attend a meeting at the Appellants' Divisional Office, and at this meeting he was persuaded to withdraw his notice.

[6]The Tribunal record that the Applicant then went for some counselling in early May 2003, which had been arranged by the Appellants, but after speaking to the Counsellor the Applicant felt angry about the way he had been treated by his employers and he decided not to return to work. The Applicant then wrote a second letter of resignation dated 8 May 2003, and in that letter the Applicant stated, amongst other things, the following (see the Tribunal Decision at paragraph 3 (4)):

"...on January 20 I returned to work at Enfield, during my absence I was never contacted by someone from personnel or the police. I found this quite disturbing. After all I was assaulted by a customer at work and there were many witnesses. I voiced my concerns to my line manager. He then telephoned Group Security. At the same time I telephoned the police to make inquiries as to whether any action was being progressed. To my astonishment I was told there would be no further action taken. I was horrified as I was then told by the officer if l should see the assailant I should give the police a ring. This then led me to think does this have anything to do with my ethnic background. I continued to work but never really felt secure to work effectively in the place I was assaulted. I voiced my concerns to my line manager. We had a meeting and the outcome was perhaps I had returned a little too soon and I should take some more time to recover. ..."

[7]At paragraph 3 (5) of their Decision, the Tribunal found as follows:

"It was an agreed fact that the effective date of termination of the Applicant's contract of employment was 29 May 2003. One day prior to that date a meeting took place between the Applicant and one of the Respondent's Human Resources Managers at Head Office. At that meeting the Applicant indicated that he regarded himself as no longer an employee of the Respondent and was not willing to cooperate."

[8]We should point out here that it was the Applicant's pleaded case in his Originating Application that his employment had terminated on 29 May 2003. The Respondent admitted that this was the effective date of termination, in their Notice of Appearance, on the basis that they had accepted the Applicant's resignation with effect from 29 May 2003. It has never been suggested at any stage throughout this litigation that the pleaded and agreed date of termination was incorrect and no application has ever been made by the Applicant to amend the date of termination pleaded in his Originating Application.

[9]In paragraph 3 (6) the Tribunal found that, by letter of 28 May 2003, the Human Resources Manager had written to the Applicant confirming the following:

""...Secondly I am aware that you did not want to proceed with the meeting as you feel you are no longer a Dixon Stores Group employee and should not have to do so. I regret you have not given me, on behalf of the Company, an opportunity to investigate your allegations further in order for appropriate action to be taken…"

The Applicant replied to that letter making it clear that he felt that he was left with no alternative but to resign from his position.

[10]The Tribunal found, at paragraph 3 (7) that there was some further contact between the Applicant and his former employers after the date of termination at the end of May 2003. They record at paragraph 3 (7) that in July of 2003 a new Human Resources Manager contacted the Applicant to say that she would like to resolve the matter, and she arranged a meeting for 23 July. A meeting appears to have taken place and some correspondence ensued in August, but none of those documents was before the Tribunal.

[11]In relation to events which occurred after his employment came to an end, the Tribunal found the following facts at paragraphs 3 (8) to (11) and in view of their importance in this appeal we shall refer to them in full:

"(8) The Applicant then contacted Mr Mayers who is a 77 year old Barrister who runs a Legal Advice Office in Broad Lanes Tottenham. Mr Mayers advised the Applicant he had to submit any complaint to the Employment Tribunal by 28 August 2003, which was of course the correct date. (9) The Applicant was expecting Mr Mayers either to lodge the Originating Application on his behalf or to be asked to call in to sign the Originating Application; On 1 September 2003 the Applicant received a telephone call from Mr Reid, who is an unpaid unqualified assistant, who explained that Mr Mayers was seriously ill in hospital and that the Applicant should come in and sign his Originating Application, which he duly did. The Applicant asked Mr Reid if it was too late for the Application to be lodged and was told that it should be alright. Mr Reid in fact lodged the Application with the London Central Tribunal by hand the following day 2 September. (10) The Originating Application showed in Box 1 complaints of constructive dismissal and DDA 1995 - Discrimination but no complaint of Race Discrimination. In the body of the Originating Application in box 11 the following was stated:- "…The company also discriminated against (sic) by treating him differently to other victims of assault in the work place". (11) On the 6 February 2004 the Applicant went to see a firm of solicitors, Fakoia & Sims at Bradbury Street, London N 16 and handed to them all the documentation he then possessed. Although the decision made by the earlier Tribunal had been communicated to the Applicant that was not promulgated until 24 February 2004. Those solicitors made no contact either with the representative of the Respondent nor the Tribunal and the first the Tribunal knew that the Applicant was making an application to amend was at this hearing on 8 April 2004. Despite the earlier determination of the First Tribunal that any witness statement should be exchanged at least three days before this hearing, that was not done."

[12]The earlier Tribunal Decision was the Decision referred to in paragraph 2 of the Tribunal's Reasons where they recorded that on 23 January 2004 the matter had come before a differently constituted Tribunal which adjourned the matter and set out their reasons for so doing in a Decision promulgated on 24 February 2004. These reasons related essentially to problems of communication between the Tribunal and the Applicant about the hearing date and the need for him to prepare properly for the Tribunal and to give consideration to whether or not his complaints of disability discrimination and constructive unfair dismissal had been presented to the Tribunal in time. The Tribunal point out in paragraph 2 that at that stage no application had been made for any amendment to pursue a complaint of race discrimination and no such application was made at that earlier hearing.

[13]At the hearing on 8 April 2004 the Applicant withdrew his complaint of disability discrimination because he accepted that he was not a disabled person within the meaning of the Disability Discrimination Act 1995 .

[14]After referring to the parties' submissions, the Tribunal directed themselves as to the relevant law, in some detail, in paragraphs 5 to 13 of their Decision. They referred both to the relevant statutory provisions relating to time limits in the Employment Rights Act 1996 and the Race Relations Act 1976 and to relevant case law in relation to both Acts . It is common ground before us that the Tribunal directed themselves correctly as to the relevant legal principles to be applied in deciding whether it was reasonably practicable for the Applicant to present his unfair dismissal complaint within the three month time limit, and whether they should grant his application to amend his Originating Application to add a complaint of race discrimination.

[15]The issue in this appeal is whether the Tribunal then applied those directions correctly in arriving at their conclusions. The conclusions are set out in paragraph 14 (1) and (3) as follows:

"Unfair Dismissal Complaint (1) The conclusion of the Tribunal is, given that the Applicant was informed by Mr Mayers that the last date for lodging his Originating Application was 28 August 2003, that it was reasonably practicable for the Originating Application in respect of the complaint of unfair dismissal to be lodged within time and in those circumstances the Tribunal has no jurisdiction to hear the Applicant's complaint. … Discrimination (3) The Tribunal had considerable concern about this aspect of the case. It took into account all matters but in particular the fact that the Applicant did raise issues in his letter of termination relating to his treatment after being assaulted which may have been as a result of him being black; that he had sought advice from an individual purporting to be in a position to assist him in his complaint to the Employment Tribunal who was then hospitalised leaving matters in the hands of an unqualified untrained assistant; that the Originating Application makes specific reference to the Applicant being treated differently to other victims of assault in the work place (which could have no relevance to a complaint of disability discrimination) and that the Applicant had been in a position to specifically nominate the two comparators. The Tribunal, having considered all the relevant authorities and taken into account all the circumstances, has come to the conclusion that it would be appropriate to allow the Applicant to amend the Originating Application to include a complaint of Race Discrimination and further that it would be just and equitable to extend time to the Applicant in this particular case."

[16]Mr Charles submits that in granting the application the Tribunal erred in that they failed properly to consider the evidence before them, failed to make relevant findings of fact, took irrelevant factors into account, and arrived at a wholly perverse conclusion. He has referred us to a number of relevant authorities dealing with applications to amend the Originating Application, in particular the important case of Selkent Bus Company Ltd t/a Stagecoach Selkent v Moore

[1996] IRLR 661

[17]Before addressing Mr Charles' criticisms we should point out that Mr Okunowo, appearing for the Applicant, sought to persuade us in relation to the issues arising on the appeal that the Applicant's employment had not terminated on 29 May 2003, and that the Tribunal had erred in so finding. His main submissions on the appeal flowed from that central challenge to the Tribunal's Decision. He submitted that the employment did not terminate until, at the earliest, two weeks after 28 May 2003 or, possibly, a date later than that and, further, that there were continuing acts of race discrimination which continued over the months of June to September 2003.

[18]However we note that this is not the basis on which the Applicant had presented his case below, it was not the basis on which the Tribunal approached the matter, and, as will become clear when we turn to the cross-appeal, we were unpersuaded by Mr Okunowo's submissions and we uphold the Tribunal's finding that the Applicant's employment terminated on 29 May 2003, for the reasons we set out later on in our Judgment when addressing the cross-appeal.

[19]We shall then deal first with the appeal against the Decision on the application to amend the Originating Application. In the well known case of Selkent this Appeal Tribunal held that when deciding whether to grant an application to amend an Originating Application the Tribunal should take all the circumstances into account, including the nature of the amendment sought, the applicability of relevant time limits, the timing of the application and the way in which it has come about, and the extent of any delay which has occurred and any explanation for it. The Tribunal has to carry out a careful balancing exercise taking all the circumstances into account, having regard to the interests of justice and to the hardship which will be caused to the parties respectively by granting or alternatively by refusing the application.

[20]Having considered the matter carefully there are, in our judgment, a number of difficulties with the Tribunal's reasoning in paragraph 14 (3) of their Decision. It is clear on the facts of this case that in box 1 of his Originating Application, lodged on 1 September 2003, the Applicant clearly identified his complaints as unfair dismissal and disability discrimination. He was, at that time, legally assisted by an employed barrister running a legal advice office in Tottenham. In the particulars of his complaint the Applicant said this:

"…Samuel [a reference to himself] was assaulted by a customer, where [he] suffered serious injuries to his head, and is still receiving medical care arising from his injuries. The company failed to take appropriate steps in dealing with their own code of conduct in dealing with assaults at work. This left Samuel where he had no choice but to resign from work, to safeguard his health. The company also discriminated against [him] by treating him differently to other victims of assault in the workplace."

[21]These paragraphs, in our view, referring as they do to the injuries the Applicant had received as a result of the assault, to the lack of appropriate steps taken by his employers following that incident, and to different treatment meted out to other assault victims cannot reasonably be understood as an allegation of racial discrimination against his employers.

[22]One of the reasons given by the Tribunal for granting the application to amend, in paragraph 14 (3), was that:

"…the Originating Application makes specific reference to the Applicant being treated differently to other victims of assault in the work place (which could have no relevance to a complaint of disability discrimination) and that the Applicant had been in a position to specifically nominate the two comparators."

The Tribunal therefore seem to have regarded the Applicant's claim of racial discrimination as being one which was included in the particulars of his complaint.

[23]However, the Applicant's own evidence before the Employment Tribunal shows that this was not the case. In his Witness Statement he referred to instructing another firm of solicitors after lodging his Originating Application and then being told that it:

"…contains a serious error, omission, in that the claim is incorrectly stated as being for unfair dismissal falling only under the Disability Discrimination Act 1995 (DDA) but it should include a claim under the Race Relations Act 1976"

[24]Also before the Tribunal was a Witness Statement from Mr Andrew Reid, Mr Mayers' assistant, which was relied on by the Applicant and which stated, amongst other things:

"It has now been brought to my attention that an error was made in completing the application (ET1). Mr Kirnon's case was for constructive dismissal and Race Discrimination under the Race Relations Act 1976, (which I omitted) and the Disability Discrimination Act 1995."

[25]It was common ground before us that the two comparators referred to were identified to the Tribunal and to the Appellants only on 8 April at the hearing, and not at any stage before then. Mr Charles therefore submits, and we agree, that the evidence before the Tribunal really pointed only one way, namely that a complaint of race discrimination had, in error, been omitted from the Originating Application. We agree that it was not therefore open to the Tribunal to conclude that a complaint of racial discrimination could be read into the particulars of the complaint, set out in that document.

[26]In so concluding, we consider that the Tribunal erred. We do not regard this as a case where, as Mr Okunowo suggested, it was simply a new label being attached to facts which had already been pleaded, and that nothing else needed to be said. Indeed it is hard to see, if the particulars relied on in support of the race discrimination complaint are those which we have already referred to, what else the Applicant would have been relying on in relation to his complaint of disability discrimination, which according to Mr Reid's evidence he was also wishing to pursue at that time.

[27]Further, reliance placed by the Tribunal at paragraph 14 (3) on the fact that the Applicant's adviser had had to go into hospital and that the matter was left to an unqualified assistant, seems to us to be an irrelevant factor taken into account at this stage since the Applicant was asked by Mr Reid to sign and did sign the application before it was lodged. He would therefore be aware, or should have been, that no complaint of race discrimination was included in the application.

[28]The Tribunal also relied, at paragraph 14 (3), on the Applicant's letter of resignation, to which we have already referred, a document dated 8 May 2003. However, the material part of that letter stated as follows:

"At the same time I telephoned the police to make enquiries as to whether any action was being progressed. To my astonishment I was told there would be no further action taken. I was horrified as I was then told by the officer if I should see the assailant I should give the police a ring. This then lead me to think did this have anything to do with my ethnic background."

Thus the letter in its terms raised race discrimination as a possible contributing cause of the police failure to investigate and pursue the assault committed upon the Applicant. It made no suggestion whatsoever of any race discrimination by his employers. We consider that, in taking it into account in the way they did in paragraph 14 (3), the Tribunal misunderstood the terms of the letter and erred in relying upon it as supporting an earlier complaint by the Applicant of racially discriminatory treatment against him by the Appellants.

[29]We therefore conclude that the only permissible finding open to this Tribunal on the evidence before them was that the Applicant's application to amend his complaint raised an entirely new claim of race discrimination and the Tribunal erred, in our judgment, in failing to consider it on that basis.

[30]That being so, there were further factors which were material and important in determining the Applicant's application. Firstly, as we have indicated already, the Tribunal referred to the earlier hearing held in January before a different Tribunal. They found that no application was made at that hearing by the Applicant to amend his application to include the race discrimination claim. It is common ground that he made his application to amend for the first time at the hearing on 8 April and that no notice of, or reference to, such an application had been made either to the Tribunal or in correspondence with the Appellants before that date.

[31]Secondly, when considering whether the application was out of time, and whether it was just and equitable to extend time, there appears to have been no consideration given by the Tribunal to the relevant time limits, namely what the acts of racial discrimination alleged against the Appellants actually were and when the last act was committed. His employment terminated on 29 May 2003. The evidence before the Tribunal suggested that the main complaint being made by the Applicant was that, following the assault upon him and his absence on sick leave, there was a total failure of support for him by the Appellants, and that the discriminatory acts relied upon therefore occurred in the early part of the year 2003, principally January and February.

[32]The Tribunal refer at some length in paragraphs 9 to 13 of their Reasons, to the principles to be applied in determining whether it is just and equitable to extend time to permit an application to amend to be made out of time. However, without providing any reasons for their conclusion, they merely state at the end of paragraph 14 (3) that they have decided that it would be just and equitable to extend time to the Applicant in this particular case.

[33]No consideration seems to have been given as to the merits of the complaint. Indeed they do not at any stage identify what the complaint is and certainly make no reference to the date when the last act of alleged racial discrimination occurred. They say nothing about any explanation for delay in pursuing it, and do not consider the promptness with which the Applicant himself acted. All these were important factors to be considered in the balancing exercise which the Tribunal had to carry out, yet nothing in the Reasons indicates that they were taken into account by the Tribunal in arriving at their conclusion.

[34]They seemed in addidion to give no consideration at all to the prospect of the Appellants having to defend allegations concerning events which had occurred some 16 months before the Tribunal were considering the application. Nor do they have regard to the effects of the delay on the cogency of the evidence. In summary, although the Tribunal had set out in paragraph 13 the factors which they directed themselves had to be considered, they did not address any of them when they came to express their conclusions and explain their reasons for them. The length of the delay, if the allegations of race discrimination were indeed relating to the months of January and February 2003, was at least 12 months' (and probably 18 months'), and yet no findings have been made by the Tribunal as to the reasons for it and the effects.

[35]In relation to the extent to which the cogency of the evidence was likely to be affected by the delay it was not disputed by Mr Okunowo before us, that a number of relevant witnesses from the Appellants' side had left their employment. In relation to the extent to which the Appellants had co-operated with any request for information, there had been no Race Relations Act questionnaire served by the Applicant at any stage and no request for any answers or particulars. Nothing had been given to the Appellants to put them on notice that they were alleged to have discriminated against him on the grounds of his race. Nothing relevant had been alluded to in the correspondence at any stage.

[36]In relation to the promptness with which the Applicant acted once he knew of the facts giving rise to the cause of action, on the evidence the Applicant had clearly delayed by several months before making the application to amend, and it appears that he had not sought any professional advice in relation to the matter until early August of 2003.

[37]In our judgment, having regard to all these factors, which the Tribunal ought to have considered fully, we agree with Mr Charles' submission that there was really only one conclusion that the Tribunal could have come to, namely that the application to amend should be refused. For these reasons, we consider that the Tribunal erred and that the appeal should be allowed. We also take the view that this is one of those rare cases where we can reach our own conclusion on the basis of the Tribunal's findings and the evidence which was before the Tribunal on the question of whether or not it was just and equitable to extend time so as to permit the Applicant's application to amend his Originating Application. Mr Okunowo has not suggested otherwise and we consider that no prejudice is caused to the Applicant by us proceeding to determine the matter ourselves.

[38]Having regard to all the evidence before the Tribunal and to the findings of fact which they did make, we therefore allow the Appellants' appeal and substitute our own finding that the application to amend the Originating Application to add a complaint of racial discrimination should be refused.

[39]We turn then to the Applicant's cross-appeal, with which we can deal more shortly. The primary submission made by Mr Okunowo, as we have made clear, was that the Tribunal erred in finding that 29 May 2003 was the effective date of termination of the Applicant's employment. He submits that the Tribunal failed to set out the evidence to support their stated conclusion in their Decision that this was an agreed fact, and that the Tribunal failed in their duty to examine carefully all the evidence which went to the question of the correct date of termination of employment.

[40]There seems to be, in the Applicant's own case, some confusion about the date actually being relied upon as the effective date of termination. Mr Okunowo submitted to us that the first date that was a possible candidate was a date two weeks after 28 May 2003, although there may have been, if we have understood his oral submissions correctly, later dates which would also qualify. Mr Okunowo rightly recognized, however, that the difficulty he faced with this submission was that it was the Applicant's pleaded case, right from the outset, that the effective date of termination was in fact 29 May 2003. That pleaded date was admitted by the Appellants in their Notice of Appearance. The Applicant also gave this date as the effective date of termination in his Witness Statement, which was before the Tribunal on 8 April. Indeed, throughout the history of this litigation it has never been suggested that there was a different termination date. No application has been made by the Applicant to amend the pleaded date. He had also seen solicitors in February 2004 and handed over to them all relevant documents. The Applicant's own submissions to the Tribunal, as they record in their Decision, show that he himself regarded the Originating Application as being only four days out of time, clearly indicating that he himself regarded the pleaded date of termination as the effective date.

[41]Mr Okunowo sensibly accepted that he was in difficulties with this submission during argument, and, for the reasons we have given, we reject it. We also agree with Mr Charles that in any event, on the basis of the evidence which was before the Tribunal, 29 May 2003 seemed to be the obvious date which the Tribunal, had they considered it, would have found was in fact and in law the effective date of termination, having regard to the provisions of Section 97 (1) Employment Rights Act 1996 .

[42]Mr Okunowo therefore addressed us in relation to the Tribunal's Decision on reasonable practicability, and he submitted that the Tribunal erred in finding that it was reasonably practicable to lodge the Originating Application in time. It is clear that the evidence before the Tribunal and the facts found show that this Applicant had sought legal advice in early August and he had been told about the deadline of 28 August. Mr Okunowo submitted to us that the Applicant had done everything to make his case progress. There was, however, no evidence before the Tribunal that he had, or even that he had queried the progress of his claim with the adviser before being telephoned on 1 September by Mr Reid and asked to come in to sign the Originating Application.

[43]It seems to us that the Tribunal took into account the evidence the Applicant gave of what he had been told by Mr Reid. There was no evidence called about Mr Mayers' illness, when it began, what arrangements had been made for the handover of information to his assistant or when the Originating Application had been drafted. There was, as Mr Charles pointed out, no evidence before the Tribunal, the burden of proving reasonable practicability being on the Applicant, showing that in fact the illness that befell Mr Mayers had not occurred after the deadline of 28 August had passed.

[44]The Tribunal make a clear finding that the Applicant had been told by Mr Mayers at that very first meeting that the last date for lodging his Originating Application was 28 August 2003. This was clearly the crucial factor that the Tribunal had regard to in arriving at their conclusion on reasonable practicability.

[45]We recognize that the Originating Application was lodged only four days out of time. In the circumstances of this case we all have considerable sympathy with the Applicant for the difficulty in which he now finds himself, but in our judgment we can identify no error in the Tribunal's reasoning which would permit this appellate tribunal to interfere. Mr Okunowo properly recognized on the Applicant's behalf that the "reasonable practicability" test is a far stricter one than the "just and equitable" test in relation to complaints of discrimination.

[46]We therefore find ourselves unable to say that the Tribunal erred in exercising their discretion and for these reasons, therefore, the cross-appeal must be dismissed.