MR H MUSTAFA v LOGICA CMG UK LTD [2004] UKEAT 0852_04_2611

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2004] UKEAT 0852_04_2611

Case No Appeal No. UKEAT/0852/04

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR H MUSTAFAAPPELLANT

LOGICA CMG UK LTDRESPONDENT

Before

Mr Justice Rimer

Date 26 November 2004

[1]APPEARANCES For the Appellant MR HAZEM MUSTAFA (The Appellant in Person) 59C Edbrooke Road London W9 2DE For the Respondent MR R PIRANI (Of Counsel) Instructed by: Messrs Beachcroft Wansbroughs Solicitors 100 Fetter Lane London EC4A 1BN SUMMARY Race Discrimination The appeal raised an issue as to whether or not the employment tribunal had misdirected itself with regard to the question of whether it was just and equitable to allow an amendment to the applicant's claims of race discrimination THE HONOURABLE MR JUSTICE RIMER This is an appeal against part of a decision of the chairman of an employment tribunal, Mr D Booth,who sat alone in the matters before him at London (South) on 6 August 2004. He sent the extended reasons for his decision to the parties on 23 August, when his decision was also entered on the register. The appellant is Mr H Mustafa, who is the applicant and who was represented before the chairman by his solicitor, Mr Richard Leung. The respondent is his former employer, Logica CMG UK Ltd ("Logica"), which was represented before the tribunal by its solicitor, Ms Donnna Sharpe, but has been represented before me by Mr Pirani. I should say that Mr Mustafa appears in person before me.

[2]The chairman made several decisions at the hearing on 6 August. The only one which is the subject of the appeal is his fifth decision whereby he refused permission to Mr Mustafa to amend the originating application by adding a claim for "race segregation".

[3]Mr Mustafa was employed by Logica from 26 January 2004 until 3 March 2004. His originating application was presented on 6 May 2004. He alleged unfair dismissal and racial discrimination. He set out his complaints over a page and a half of single spaced typing. He explained that he worked for Logica at their client's site, The British Council, as an NT Server Support Analyst. He said he was originally from Iraq but is now a British citizen.

[4]His statement set out a long list of generalized complaints about his treatment at work, being complaints to the effect that he was mistreated and discriminated against. He says he was denied access to information, tools and utilities, was isolated and was required to work more hours than others. He says he was put under pressure whilst working alone. His colleagues would not integrate him into a team, would not listen to him, would not co-operate with him and were rude to him. He complained that even if he went to the canteen for lunch his colleagues would not sit at the same table with him. He says he complained to Logica about the harassment and they told him that his contract was going to be terminated, as it was. At least to the extent that he complains about the treatment he received in the canteen, it can perhaps be said that there was an element of alleged segregation in that.

[5]Logica's IT3 was dated 26 May. They denied that they employed Mr Mustafa at all and said he was a temporary worker assigned to them by an employment agency called Eurobase People Ltd to work for one of Logica's clients – that is, The British Council. They said he started working on 26 January 2004 and his assignment was ended on 3 March 2004 because of his poor performance. They said he caused significant problems in providing a service to the client and that they believed he did not have the technical ability to perform his role. They denied that the tribunal had any jurisdiction to hear his unfair dismissal claim as he had only worked for five weeks. They denied the race discrimination allegations. They complained that in any event Mr Mustafa's complaint was generally unclear.

[6]On 2 June 2004, the tribunal chairman ordered Mr Mustafa to provide particulars by 12 June of the grounds on which he relied. He was required to identify the nature of each act he relied on, when it occurred and who was responsible for it. He was required to identify the comparators, if any he was relying on and to say which of the alleged acts complained of were on the grounds of his race.

[7]Mr Mustafa did not respond by 12 June but, following the giving of an extension of time, did respond by 18 June. He set out his case with somewhat more precision than had his IT1. Paragraph 3 of his particulars read as follows:- "Three or four more contractors that have joined our team some three weeks after me, (as part of the harassment and discrimination Logica CMG isolated me from the whole team and from theses contractors, they separated me from the whole team old and new, permanent and contractors the first day I joined in, and put me to set alone on a table behind a partition, they didn't introduce any of these contractors to me but they introduce them to Harmeet Sandhu and to Danie Rademeyer and of course to them selves and set together with them on the same table and formed a team of work the consisted from all permanent and contractors newly joined and old but me." The English of that paragraph is not immaculate but Mr Mustafa is not to be criticized for that as he has explained that English is not his first language. Mr Mustafa added a postscript to those particulars saying he would like permission to amend them if any of his legal advisers wanted to add more.

[8]On 23 June 2004, the race discrimination unit of the Lambeth Law Centre, who were assisting Mr Mustafa in his application to the tribunal, wrote to the tribunal saying that they acted for him and had taken some instructions from him and wanted to make an application to amend the originating application as detailed below. They explained that he had been a litigant in person and had drafted the originating application himself and had also prepared the further and better particulars to which I have referred. The amendments which the Lambeth Law Centre invited the tribunal to consider making fell under eight heads but the only relevant one is head four which read simply "the applicant wishes to include a claim, race segregation". The letter does not include any details of what facts in support of any such allegation Mr Mustafa wanted to rely upon in his claim.

[9]At the hearing before the chairman, Mr Booth, on 6 August, Mr Mustafa withdrew his unfair dismissal claim as he presumably recognized that he had not had sufficient service to enable it to be made. The purpose of the hearing was to consider the application for amendments to his IT1 being that application to which I have just referred which the tribunal received on 25 June, as the Chairman records in paragraph 1 of his extended reasons, and being more than three months following the date of Mr Mustafa's dismissal.

[10]One of the problems with this appeal, which is against the refusal of that application to amend, is that the chairman nowhere makes clear precisely what the nature of the application before him was. But Mr Mustafa tells me - and Mr Pirani, I understand, agrees, though Mr Pirani was not himself before the chairman - that what was being sought was an amendment to allege the allegations of race segregation identified in paragraph 3 of Mr Mustafa's particulars of 18 June from which I have earlier quoted. When I say that Mr Pirani agrees with that he does not positively assert that that was the position but his inference from his instructions is that that was the nature of the amendment then being sought. And Mr Mustafa, as I say, tells me that that was the amendment then being sought. It is unfortunate that the chairman did not think it necessary to be more precise as to what it was that was before him.

[11]The chairman said that he approached the application for the amendment (which included other amendments as well but I am not concerned with those) by considering first whether the facts supporting the new claim had already been pleaded, albeit in what the chairman called lay terms; and, not, if then "whether the application on 25 June met the reasonably practicable test or the just and equitable test as the case may be".

[12]Section 68(1) and (6) of the Race Relations Act 1976 provides, so far as material as follows:

"68. (1) An employment tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of – (a) the period of three months beginning when the act complained of was done… (6) A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

[13]As I say, the only part of the application with which the appeal is concerned is Mr Mustafa's claim to include the claim of alleged "race segregation" supported by paragraph 3 of the particulars which I have read. The chairman refused to permit the amendment for reasons he set out in paragraph 4 of his extended reasons as follows:- "4 The claim for segregation is not supported in the narrative. It is out of time and having regard to the fact that there is a multiplicity of incidents in claims arising from his treatment I do not consider it just and equitable that the Respondents should have to face yet another claim at this stage. I therefore refuse that application."

[14]Mr Mustafa served a notice of appeal to this tribunal against that decision on 14 September. By way of grounds he asserted that the segregation against him was a fact and had started on the first day of his employment; that Logica had not denied it at the August hearing - although I should say that Mr Pirani makes clear that Logica does deny it; that segregation was something he had complained of in his IT1 - a reference to the fact that he had in terms there alleged racial discrimination - and I have already pointed out that he included allegations of fact which might amount to allegations of segregation; that he was not a lawyer, he was not used to filling in forms and English was not his mother tongue; that he made the claim in paragraph 3 of his particulars, which I have quoted; and that the chairman's point that Logica was already faced with a multiplicity of claims lacked logic and balance.

[15]On 6 October 2004, the Registrar of this appeal tribunal wrote to Mr Mustafa saying that the notice of appeal did not identify any question of law for the tribunal, which therefore had no jurisdiction in the matter and that in consequence no further action would be taken on the appeal, (see rule 3(7) of the Employment Appeals Tribunal Rules 1993). On 19 October 2004,Mr Mustafa emailed the tribunal, saying that he was dissatisfied with the reasons given in that letter and that he wanted the matter reconsidered, (See rule 3(10)). As a result of that email the matter came before the President, Burton J, on Wednesday of this week, 24 November. Mr Mustafa produced to the President a 39-paragraph statement in support of his substantive application, as well as a shorter summary of his points over a mere two pages. He appeared in person before the President, as before me today. The outcome was that the President allowed Mr Mustafa's appeal to proceed and then gave unusually accelerated directions for a substantive hearing today, less than two clear days later. The reason for that is that the substantive hearing of Mr Mustafa's application to the Employment Tribunal is due to commence on Monday 29 November and the outcome of his appeal needs to be determined before then.

[16]I have indicated the difficulty, which emerges from the papers, of knowing precisely what it was that the chairman was dealing with on 6 August but I have also indicated that it appears to be common ground between Mr Mustafa and Mr Pirani that he was in fact considering an amendment to include the paragraph 3 allegations. Mr Pirani identifies those paragraph 3 allegations as making three new allegations, which he summarizes as follows: 1) They put me to set [sic] alone on a table behind a partition 2) They did not introduce any of these contractors to me 3) [They] set [sic] together with them on the same table and formed a team of work, the [sic]consisted from all permanent and contractors newly joined and old but me, [sic].

[17]The allegations are in terms that he was segregated in the way he was treated in the workplace, which perhaps mirrors that element of segregation he felt he was subjected to in the canteen. Mr Mustafa submits that the tribunal's chairman's reasons for refusing his amendment do not fairly reflect the way in which a consideration of such an amendment ought to be made. It is however, perfectly correct - or at least I consider it to be correct - that to the extent that Mr Mustafa was seeking at that hearing to rely on the paragraph 3 allegations, he was relying on factual allegations which he had not in terms made in his IT1 and he was therefore seeking to advance new acts of complaint after the three month limit. It therefore appears to me that the Chairman was right to consider whether it was just and equitable to allow him to do so.

[18]The criticism which Mr Mustafa makes of the chairman's paragraph 4 decision is that it was quite insufficient to reject his right to advance these new allegations simply because he had already made what the chairman described as a multiplicity of other allegations against Logica. It cannot, he submits, at least by implication, be sufficient for a chairman to say in effect that the respondent has enough on his plate to deal with, and therefore it is unjust to have to meet further claims. It may of course be perfectly legitimate to conclude that it is not reasonable for the respondent to have to meet further claims, if for example those further claims are advanced a long way down the track of the application at a time when there would perhaps be prejudice to the respondent in having to deal with them in time for the substantive hearing. The later an application is made, the greater the likelihood of such prejudice and the more likely it is that it will not be just and equitable to allow it.

[19]There is, however, no express suggestion that to allow these relatively minor amendments – to raise claims which are very much in the spirit of the claims already made in the IT1 - would be something which would have caused any such prejudice. The chairman does not articulate any such point, and it seems to me fairly obvious that in fact there would not be any such prejudice. Mr Pirani fairly recognizes that Mr Mustafa is entitled, even if these amendments are not allowed, to make these allegations in his evidence as part of the background facts, and he tells me also very frankly that Logica will not be prejudiced in having to meet them even at this late stage, the substantive hearing of this matter commencing on Monday. Logica have therefore, I presume, prepared to meet these allegations.

[20]But those last considerations are not directly in point. What counts is whether or not the chairman's reason for refusing the application in August is one which was founded on matters properly within his discretion, such that this tribunal cannot re-visit it. It is only if the Chairman misdirected himself in some matter that it would be appropriate for this tribunal to reconsider it. For my part, I take the view that the single reason the chairman gave, namely, that such was the multiplicity of complaints with which Logica is faced that it would not be just and equitable for it to have to face more claims at that stage, is not by itself enough to justify a conclusion that it was not just and equitable to allow the amendments. He has not considered the relative prejudice to both sides and, as it seems to me, the chairman was simply motivated in his decision by a consideration which cannot be justified.

[21]In those circumstances I consider that I can exercise the discretion afresh, the chairman having in my judgment misdirected himself, for reasons which I have effectively given, I can see no reason why it was not just and equitable to allow those amendments at the time the matter was before the chairman in August. There was still plenty of time before the hearing. The parties had not yet exchanged witness statements, there was not likely to be any material prejudice to either side in meeting three further allegations which were in very much the same vein as allegations that had already been made. Although the application was made out of time, it was not made very substantially out of time, and it has to be borne in mind that Mr Mustafa is a litigant in person who does not approach these matters with the professional skills that a lawyer would be able to use. And although it does not appear that he provided any explanation as to why these matters were not in his original IT1, that omission does not appear to me to be something which should have required the application to be decided against him.

[22]I would therefore allow Mr Mustafa's appeal. I will set aside paragraph (v) of the chairman's decision of 6 August 2004 and I will permit Mr Mustafa to amend his IT1 by including the allegations in paragraph 3 of his letter of 18 June 2004.