DR P IGBOJI v (1) TESCO STORES LTD AND OTHERS (2) ELLISONS SOLICITORS [2011] UKEAT 1799_10_2408

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2011] UKEAT 1799_10_2408Case No Appeal Nos. UKEATPA/1799/10/SM UKEATPA/0266/11Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR P IGBOJIAPPELLANT(1) TESCO STORES LTD AND OTHERS (2) ELLISONS SOLICITORSRESPONDENT
Before
His Honour Judge McMullenDate 24 August 2011
[1]APPEARANCES For the Appellant MISS HOLLY STOUT (of Counsel) (Appearing under the Employment Law Appeal Advice Scheme) SUMMARY PRACTICE AND PROCEDURE – Striking-out/dismissal RACE DISCRIMINATION – Direct The Employment Judge correctly struck out the Claimant's case against his employers and numerous members of staff as being out of time. In respect of his claim to be an employee of the solicitors he instructed to pursue the employment claims, because he did work to provide instructions to them, this was misconceived. HIS HONOUR JUDGE McMULLEN QC Introduction and procedural background The appeal is against a Judgment of Employment Judge Skinner, sitting alone, at a PHR in Bury St Edmunds, registered with Reasons on 3 December 2010. The Claimant represented himself; the first to the tenth Respondents, whom I will call the Tesco Respondents, being associated with the first Respondent, Tesco Stores Ltd, were represented by a solicitor, and the eleventh Respondent, Ellisons Solicitors, was represented separately by a solicitor. The case was brought against the eleven Respondents, and a second case was brought against Tesco Stores Ltd.[2]The Judge refused the application in the second case by Tesco to strike out the Claimant's case and it went on to a full hearing before Employment Judge Cole and members over 20 and 21 June 2011, leading to a Judgment with Reasons on 19 July 2011. The Tribunal rejected the claim of unfair dismissal. The Claimant was dissatisfied and sought a review; that was refused. The Claimant has appealed to the EAT by a Notice of Appeal received on 2 August 2011, which is still awaiting sift. Ms Stout of counsel giving her services in the ELAA Scheme has had the opportunity to consider with her client the latest Judgment and the Notice of Appeal in case it has a relationship to the appeal today. The Tribunal found that much of the material the Claimant had brought was irrelevant to the task it faced, and early incidents were not the reason for the dismissal. I say no more about this because it is subject to the sift procedure, and return to the first case.[3]The Judge gave case management directions, and he was at pains to explain the need of the Claimant to focus on the particular issue that the Judge was to decide, which was whether the claim should be struck out as against all eleven of the then Respondents. The Judge remarked upon the profusion of the evidence, and indicated that he would deal with the matters that were necessary.[4]The Claimant had made claims relating to the alleged discrimination by the Respondents in failing to accredit him with the title "Doctor" on his obtaining a PhD from the University of Essex, which in his claim form he said he had notified in writing to the Respondent on 27 January 2007. He sought his title and personal records to be amended.[5]The second part of his claim was that he applied for a Regional Manager job at south-east Horsham, which had been advertised on the careers website on 11 July 2007. An automated acknowledgement of the application was received the same day, and he said that he had received a message from the recruitment team on 26 July that the application was under review and that he would be updated shortly on the progress. This never happened, the Claimant said, and so his complaint was two-fold. The Respondent took jurisdictional points. The first was that they were out of time, and the second was that they had no reasonable prospects of success.[6]The Judge decided against the Claimant, upholding the Respondent's strike-out applications in respect of both of those. The Judge also dealt separately with the claim against Ellisons. That was struck out; the grounds for striking it out are not the subject of any complaint before this Tribunal. The Claimant was dissatisfied with the strike-out and sought a review. The Judge conducted a preliminary consideration under rule 35(3) in open court. The Judge acknowledged that was an unusual situation, and he gave his reasons for so doing on 22 February 2011, where the Claimant only was in attendance, there being no requirement of any attendance or representation by the Respondents. The Claimant had a full opportunity to put what he described as new evidence before the Judge; the Judge decided that this was not new evidence at all, and that the application had no reasonable prospect of success. Such material as he sought to classify as new evidence did not satisfy the requirements of rule 34(3), and the application was therefore refused. The appeal[7]In Haritaki v South East England Development Agency [2008] IRLR 945 at paragraphs 1-13 I set out my approach to Rule 3. It should be read with this Judgment. That approach has been approved by the Court of Appeal in, for example, Hooper v Sherborne School [2010] EWCA Civ 1266 and Evans v University of Oxford [2010] EWCA Civ 1240 .[8]On the sift of this Notice of Appeal in accordance with the Practice Direction, HHJ Peter Clark said the following:
"This is an appeal against the PHR Judgment of Employment Judge Skinner dated 3 December 2010, striking out his first claim (ET 1501218/2010) brought against 11 named Respondents. His second, unfair dismissal claim (ET 1502112/2012) is to proceed to a full merits hearing. The Appeal has no reasonable prospect of success for the following reasons:- 1) The Employment Tribunal has no jurisdiction to consider his complaint against the 11 th Respondent, Ellison Solicitors, instructed by the Appellant, in connection with his grievance raised with his then employer, Tesco (1 st Respondent). 2) The claim of unlawful race discrimination (he is of Nigerian origin) brought against Tesco and 9 of its staff (the 1-10 th Respondents) is plainly out of time. It relates to events in 2007 (failing to amend Tesco's records to describe him as Dr Igboji following his PhD awarded by Essex University if January 2007 and rejection of his application for the post of Tesco Regional Manager, East Horsham, in July 2007. He was at all times employed as a Customer Assistant, Nights, at their Colchester Store) which were substantially out of time when he presented the relevant Form ET1 on 17 May 2010 and the Employment Judge was entitled to refuse an extension of time under the just and equitable provision in Section 68(6) RRA for the reasons given at paragraph 43 of the PHR Judgment. 3) Further, and in any event, the claims were misconceived. No connection between the two events complained of in 2007 and his race were advanced by the Appellant (Reasons, paragraph 50). 4) The Grounds of Appeal raise no arguable point of law. Taking each in turn:- 4.1 Although in this Appeal, the Appellant states that he wishes to rely on new evidence, I note that at the hearing of his review application before Employment Judge Skinner on 9 February 2011, the Appellant, whilst purporting to rely on fresh evidence, then declined to produce it to the Judge (Review Reasons, paragraph 10); 4.2 I do not read the Employment Judge's Reasons for striking out the first claim as being based on the Appellant's failure to sufficiently state his case on the Form ET1, leading to the conclusion that the Appellant has been penalised because there was not enough room on the form. Continuation sheets are permitted. 4.3 It seems to me that the Employment Judge carefully studied the material and submissions placed before him by the Appellant (and Respondents) and reached entirely permissible conclusions."
[9]Where no point of law is found section 21 of the Employment Tribunals Act 1996 deprives the EAT of jurisdiction. The Claimant was given the opportunity to amend the Notice of Appeal or to have the case heard before a Judge, and he has done the latter. I hear the case on more material than was available to Judge Clark and form my own view of the appeal. The question for me is whether there are any or no reasonable grounds in the appeal.[10]On the same day as the review Judgment the Employment Judge dealt with an application by Ellisons, the eleventh Respondent in the first claim with the Tesco Respondents, for their costs, on the ground that the conduct and bringing of the proceedings had been wholly misconceived. The Respondent sought £1,710.55, and the Judge ordered that to be paid, in a Judgment for which Reasons were sent on 2 March 2011. Again the Claimant had represented himself at that bilateral hearing, Ellisons being represented by a solicitor. Dissatisfied with that Judgment, the Claimant appealed, and this too was dealt with HHJ Peter Clark, who said the following:
"The claim against Ellison Solicitors, instructed by the Appellant, in the Employment Tribunal was plainly misconceived. They were put to wholly unnecessary expense in defending the claim until it was struck-out. The Appellant apparently did not seek Written Reasons for the Costs Judgment dated 22 February 2011, the subject of this Appeal; at all events no reasons were lodged with his Form EAT1. The Grounds of Appeal raise no question of law; indeed on a fair reading do not purport to do so."
[11]It is apparent that at the time the appeal was made the Claimant had not obtained the Reasons, and it seems to me Judge Clark was operating on the basis of the order made by the Judge without the Reasons. I have of course now seen the Reasons to which I have referred above. Expressing dissatisfaction therefore with the two sift decisions by Judge Clark, the Claimant presents an argument to me today. The applications[12]Ms Stout in her argument occasionally slipped into the submission that the points she made were arguable, whereas of course the test is whether it is arguable with a real prospect of success. The approach that she adopts has been very helpful in focussing the very wide attack the Claimant seeks to make in his arguments. I will deal with them in turn.[13]The Judge struck out the first claim against the Tesco Respondents primarily on the basis that they were out of time and that there was no jurisdiction. The Judge put it quite carefully:
"44. The Claimant is not entitled to bring the proceedings because the complaint is out of time. The Tribunal has no jurisdiction to consider the claim which cannot possibly succeed for this reason alone and I strike it out."
[14]The Judge had addressed himself to the provisions on counting time, which require a claim to be made within three months, and the just and equitable extension that is permitted in those claims. The Judge addressed also the procedural requirements, which empowers a Judge to decide a matter under rule 18(7) as to the entitlement of a party to bring or contest proceedings and to strike out any part of a claim that has no reasonable prospect of success. It was under both of those provisions that this case was run. The time limit is provided under the Race Relations Act by section 68. The Judge directed himself to the extension of that provision, which is contained in section 68(7) in the following terms:
"(7) For the purposes of this section – […] (b) any act extending over a period shall be treated as done at the end of that period; and (c) a deliberate omission shall be treated as done when the person in question decided upon it; and in the absence of evidence establishing the contrary a person shall be taken for the purposes of this section to decide upon an omission when he does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done."
[15]In his refusal to review the Judge did not consider material that is sought to be advanced before me today; that is, emails unearthed during the course of disclosure for the then-live unfair dismissal claim wending its way, as I have said, towards Employment Judge Cole's Tribunal. The opportunity given to the Claimant to raise these matters was therefore fully presented to him, and he chose not to do so. It seems to me the Judge made no error in categorising the material that was presented to him as showing no new evidence, and it is right that new evidence applications should be sent first to the Employment Tribunal (see Aslam v Barclays Capital Services & Ors UKEAT/0405/10/ZT by HHJ Richardson and members, adopting the reflections of the President in Adegbuji v Meteor Parking Ltd UKEATPA/1570/09/LA). The gist of both of those is that the EAT is not the appropriate place to be judging the impact of new evidence once a Tribunal has heard the material. Nevertheless, it is in the Practice Direction, and it is still open to a party to seek to adduce new evidence here. But as a matter of practice, we will send it to the Employment Tribunal, for it first to consider it for the reasons that are given in those two authorities.[16]Doing the best I can, I will look at the two emails that have been produced to me. An additional bundle for which permission was sought but not granted of 329 pages has been produced to me, from which two have been cited. These indicate, as the Claimant said, that there was an email about the Manager at the south-east Horsham-based branch, and indicate that the Claimant would hear back from the Respondent within 7-14 days. That was 11 July 2007, and then on 26 July Claire Dawson wrote to say that:
"The recruitment team are currently reviewing your details and will be in touch shortly to advise you on the progress of your application."
[17]It then transpired that the Respondent notified the Claimant of the name of the person appointed to that position in 2007 by some correspondence in 2010. On the basis of that, together with the note about his title, the Claimant says that the Judge was wrong to hold that there was a one-off decision, and that he was at all times subject to a continuing act, the continuing refusal to accept his letter of 27 January 2007, and the refusal or omission to deal with his application any further than is exhibited in those emails. Discussion[18]It is important to understand in every case where a decision is made or there is an omission to make a decision that its effect will have continuing consequences. Unless there is a review on any subsequent occasions of the decision made, or time has passed in respect of which a decision should have been made and an omission would properly be recorded, it is not open to a Claimant to start the clock running again by a further application met by a further refusal on the same lines. If there is a reconsideration, then time does start again (see Lyfar [2006] EWCA 1548).[19]The Claimant contends the Judge erred in failing to treat the inactivity of the Respondent as a continuing act. I see no error in the Judge's approach; it is a matter of assessment for him of the way in which the Claimant put his case, and as the Judge said, it was firmly focussed upon the specific evidence to which he had drawn attention. The Judge said this:
"39. It does not seem to me to matter greatly in which order the remaining 2 questions are taken, but I arrange them in the order of the respective (but not mutually exclusive) rules 18(7)(a) and (b). 40. RRA section 68(1)(a) prescribes the 'normal' time limit for presenting a complaint of race discrimination of 3 months beginning when the act complained of was done. 41. The claim form presented 17 May 2010 is quite explicit. The complaint is consistent with the remedy sought and the Claimant today has confirmed that his grievance throughout flows from the only specifically identified events in 2007: Tesco's failure to register his doctorate status in January 2007 and its more substantial failure (it might be thought) to progress the application which he made for the regional manager's vacancy in July 2007. Patently that makes the complaint nearly 3 years later very significantly out of time. 42. In so far as the Claimant might seek to characterise that failure as a continuing act such that he has the benefit of section 68(7)(b), which says that any act extending over a period shall be treated as done at the end of that period, he is inescapably caught by the immediately following subsection (c) dealing with a deliberate omission, compounded by the further explanation in the last part of section 68(7) as to when a person shall be taken to decide upon an omission. The Claimant has not identified any positive act complained of. He has identified what (on his case, at its highest) must be taken as deliberate omissions by Tesco. The whole thrust of his factual assertions, as far as they go, is that Tesco persistently acted inconsistently with doing that which the Claimant is aggrieved it did not do. It seems to me it is impossible to come to any other conclusion but that the offending omissions (again, taking the Claimant's case for these purposes as pleaded) must have been decided upon at the latest shortly after the notification of his doctorate and his application for the regional manager's position. Therefore section 68(7) cannot assist the Claimant by extending the starting point for calculating the normal time limit of three months to bring the proceedings – certainly not until 2010. 43. That leaves open whether, under RRA section 68(6), it is just and equitable to consider the complaint nevertheless. I regret to say there is no basis that I can find in any of the material before me which begins to provide an arguable case that it would be just and equitable so to do. There is no presumption that it is just and equitable to extend time. On the contrary, the time limits are meant to apply and it requires some particular circumstance or reason or incapacity which might render it just and equitable to overlook what is otherwise statutorily prescribed. The Claimant does not put forward any grounds for exercising that judicial discretion. I see none. The delay is excessive. He has had the opportunity throughout, if he felt that he had a complaint concerning the Respondent's failure to advance his application for the vacancy (or amend his title), to pursue that to a Tribunal, but has not done so."
[20]Issues such as what is a very significant period of time are self-evidently matters of appreciation, coupled with the discretion vested in an Employment Judge. It was open to the Judge to take the case of the Claimant at its highest and to apply section 68(7) to the facts as being put forward by the Claimant. In my judgment, no error has occurred in either of those. I bear in mind that the discovery of new material is capable of starting the clock again (see the Judgment of the Court of Appeal upholding mine in Afolabi v London Borough of Southwark [2003] ICR 800 , nine years elapsing). But those were extraordinary circumstances; the Judge addressed the statute and the law and directed himself correctly. The new material sought to be adduced does not pass the relevant tests in Ladd v Marshall [1954] 1 WLR 1489 , but in any event the eleven Respondents, including the nine individuals in this case, are entitled to be free of further litigation as a result of the opportunity given but not taken by the Claimant on the review.[21]I then turn to the second ground, which is that the claims had no reasonable prospect of success. Strictly speaking, the Judge did not have to decide this point, having decided the time points against the Claimant in respect of the Tesco Respondents. I am grateful to the Judge for setting out his views on the secondary part, which is the nature of the claim, and it is sufficient simply that I see no reason to say that the Judge was wrong in his appreciation of those matters. Since it was not strictly necessary for him to decide, it is not necessary for me to decide either, but my indication is that the Judge did not err, and I take account also of the Judge's reasons on review.[22]I then turn to the application before me today in respect of the costs order. Judge Skinner. The Judge addressed the jurisdiction, noted that the award of costs is exceptional, noted how much discretion is given to a Judge in all of the matters, and the gateway through which this application passed; that is, the claim was misconceived. He heard oral evidence and representation. Ms Stout does not challenge the depiction by the Judge in paragraph 9 that Ellisons responded in temperate and measured terms in giving the costs warning.[23]The extraordinary nature of this claim needs to be examined. Ellisons were the Claimant's solicitors, and yet he sued them. There was no basis upon which any jurisdiction could be founded for a claim against Ellisons. In part it was to do with the Claimant's submission that Ellisons employed him. The Claimant understandably places great store in his educational achievement. But in his doctorate of philosophy programme he appears to have passed no examination in logic. His simple proposition is this: he employs Ellisons to act for him; he does some work on the case and provides instructions to them when asked; so he is their employee. I do not see any logic in that. The Judge was quite right to hold that the claim was misconceived. Conclusion[24]Did he fail to address any relevant matter in the costs order? This is a meticulous Judgment given by a Judge with long experience of these proceedings. It was a simple point for him to decide. It was that the claim against Ellisons was misconceived and the Claimant did not back off when warned of costs by Ellisons. That not only is a judgment within the discretion of the Judge, it appears to me to be correct, and so I see no prospect of success in this and agree with the opinion of Judge Clark.[25]I would very much like to thank Ms Stout for the gallant way in which she has argued the points today. Dr Igboji can be reassured by the way she has given her time for this case. There are points in it which have caused some difficulty, but those are now resolved.