Appeal No. EAT/797/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 October 1996

Before
THE HONOURABLE MRS JUSTICE SMITH
MR R JACKSON
MR K M YOUNG CBE

MR M EL-KHARAM	APPELLANT

DEEP PAN PIZZA CO	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS ALISON RUSSELL
(of Counsel)
Hew Griffiths
Messrs Smart & Spicer
Solicitors
35-37 Gildredge Road
Eastbourne
East Sussex
BN21 4RX	
For the Respondents	MR ANDREW HUNTER
(of Counsel)
Messrs Denton Hall
Solicitors
Five Chancery Lane
Clifford's Inn
London EC4A 1BU	

	MRS JUSTICE SMITH:   This is an appeal against an interlocutory decision of a Chairman of Industrial Tribunals sitting at Brighton on 4th June 1996. The Chairman refused the appellant’s application to amend his originating application to include an allegation of race discrimination.

	The originating application dated 19th December 1995 shows that the appellant worked for the respondents from 1987 until November 1995 when he claimed that he had been constructively dismissed. He was a senior assistant manger. He alleged that he had been treated unfairly and harassed by management to such an extent that he had been driven to resign. The treatment alleged consisted of demotion, transfer to other premises against his wishes, reduction of wages and general harassment.

	In addition to these general allegations, he said this:

“I have followed the Guideline of Equal Employment Opportunity Policy and Statement on Harassment. Their bad treatment towards me forced me to seek medical advice as a result of stress and depression.
...
I have followed Company procedures and they have my statement. I have been discriminated against by all of the above.”

‘The above’ refers to various members of the management team.

	Thus the claim on the originating application was laid as one of constructive dismissal and there was no allegation of racial discrimination.

	The respondents asked for further and better particulars of the allegation which were supplied by letter dated 1st April 1996. For the first time quite detailed allegations of harassment on racial grounds were put forward. These amounted to abuse and discrimination by a Mr Joseph Abdelmalak, the appellant’s area manager. The date of the last act of racial harassment complained of was in December 1994.

	With the benefit of those further and better particulars and some assistance from Counsel, we have been able to piece together a better view of the alleged history of events than was apparent from the originating application. It seems that relations between these two men were not good. In November 1994 Mr Abdelmalak gave the appellant a disciplinary warning which he thought was unfair and did not accept. He went off work ill. In January 1995 attempts were made by management to persuade him to return to work and a transcript was made of a telephone conversation between the appellant and a manager called Mr Giangiacomo. In the course of that  conversation, in which Mr Giangiacomo was seeking to persuade the appellant to return to work, the appellant made the remark that “Mr Joseph, [that is Mr Joseph Abdelmalak] is a racist, and [the note goes on to say] he [the appellant] will go to a tribunal, he has a witness named Saleem, and he knows Mr Daramola will back him up.” So there is recorded in that note, an allegation by the appellant that Mr Abdelmalak was a racist.

	We have been told today, and it is apparently not a disputed matter, that both the appellant and Mr Abdelmalak are of Arab origin. Mr Abdelmalak is a Christian Arab and the appellant is a Moslem Arab. That, according to the appellant, is why Mr Abdelmalak disliked him and the basis upon which he discriminated against him and harassed him.

	The appellant did not return to work until May 1995. He then returned for about four days and went off again. He was providing sick notes during this time. In the summer of 1995 the appellant went through a three-stage grievance procedure in which he complained inter alia about Mr Abdelmalak’s treatment of him. We are told that the records of those grievance hearings, which have been disclosed on discovery by the respondents, reveal no allegation of racial harassment or racial discrimination by the appellant against Mr Abdelmalak or indeed anyone. 

	It appears that in November 1995 matters came to a head in a way which we do not understand and which will no doubt be dealt with in evidence. As a result the appellant resigned. By that time the respondents say that Mr Abdelmalak was no longer an employee.

	Following the delivery of the further and better particulars in April 1996, the appellant sought to amend the originating application to include a claim for racial discrimination. The claim was long out of time, because the last act of discrimination complained of was in December 1994. Under Section 68 of the Race Relations Act 1976 a claim must be lodged within three months of the last act complained of. Miss Russell, who has appeared on behalf of the appellant, has accepted that time had expired in March 1995. She also accepted that this was not a case in which the appellant could argue that the racial discrimination of which he was complaining had continued up to the time of the constructive dismissal. Thus the claim could only be added by way of amendment if the tribunal considered that it was just and equitable to extend the time for making the complaint under the provisions of Section 68(6).

	The decision sets out the basis upon which the Chairman considered that he ought to approach his task. At paragraph 2 of his decision he said this:

“2	Tribunals have a broad discretion to allow amendments at any stage of the proceedings. IN making use of their discretionary power to amend, Tribunal should seek to do justice between the parties. The scale of the proposed amendment and the stage at which it is sought are relevant considerations. In deciding whether to allow an amendment, the Tribunal will always weigh up the considerations of convenience. The delay which an amendment may cause and the consequent increase in cost, are matters which will be taken into account. In deciding on an amendment, the Tribunal should, in every case, have regard to all the circumstances and in particular any injustice or hardship which would result from the amendment or a refusal to make it. Since the applicant is merely required to set out the grounds on which relief is sought, a failure to state the nature of the claim, cannot itself render the application nullity. Similarly, mislabelling of the relief sought is not necessarily fatal, so long as the grounds set out in the originating application clearly establish the basis on which relief is sought.
3	In general, Tribunals faced with an application to amend the originating application, will always try to balance considerations of fairness and convenience in determining how to do justice between the parties. The mere fact that an amendment to introduce a new claim is sought outside the time limit, is not in itself conclusive as to whether leave should be refused. However, respondents are entitled to raise the question of delay and to question whether a claim is time barred. Where time has passed, in cases where recollections are important, delay prejudices recollections. Delay in applying for leave to amend an originating application can prejudice a respondent. As time passes, witnesses whom the respondent might have wished to call disperse, which might prejudice the respondent’s case. ...”

Pausing there, both Counsel in this case agree that no exception could be taken to that entirely proper summary of the approach which the Chairman was required to take.

	The Chairman then went on to consider the factors which he thought relevant in this particular case, and he said this:

“3 ... The race discrimination complaint which the applicant seeks to present today is well outside the three month limitation period. The last act complained of is in December 1994.
4 	The applicant has clearly been in receipt of legal advice. No less than four firms of Solicitors have represented the applicant’s interests between December 1994 and the date of this hearing. Although there has been reference in some of the correspondence to harassment, it is conceded that there is nothing in the correspondence which explicitly refers to race, religion or the ethnic origins of the applicant. ...”

Pausing there, the Chairman does not mention the grievance procedure, but the grievance procedure documents were before him, and it has been accepted by Counsel today that there is no reference within them to race, religion or ethnic origins. We mention also that although we have been shown and, de bene esse, have accepted the transcript of the telephone conversation which took place in January 1995, that document was not before the Industrial Tribunal. The Chairman goes on:

“4 ... It has been argued on behalf of the applicant that it is implicit from the wording of the originating application presented 19 December 1995, that the applicant is complaining of race discrimination. The applicant claims in his originating application that he has been discriminated against. However, the complaint is clearly stated to be one of constructive dismissal and the grounds of complaint are consistent with one of constructive dismissal, when applicants commonly complain that they have been harassed, victimised or subjected to discrimination. It does not follow by necessary implication that the applicant is therefore presenting a complaint of either sex or race discrimination. ...”

Pausing there, the Chairman appears to us to be saying that far from a complaint of racial discrimination being implicit, this was a claim which, so far as the respondents were concerned, had nothing to do with race. The allegation that the essence of the claim was race discrimination had come as a complete surprise to the respondents in April 1996. We think the Chairman was entitled to reach that conclusion on the evidence before him. It is clear too that the Chairman thought that the delay was very substantial. He had referred earlier to the claim being well out of time. We observe that where a limitation period of three months is fixed by Parliament, Parliament must have considered that it was in the public interest that claims of racial discrimination should be dealt with very promptly. Here there was a delay of about 15 months after the last act complained of.

	The Chairman then went on to consider prejudice, and he said this:

“4 ... Having carefully considered all the circumstances of this case, I am satisfied that any prejudice caused to the applicant in refusing this application to amend the originating application, is more than outweighed by the potential prejudice to the respondent, had the amendment been allowed. The application to amend the originating application to add a complaint of race discrimination is refused.”

	Miss Russell, who has presented this appeal with great clarity, has submitted that the Chairman made three errors of law. She also submits that his conclusion was perverse in that it was a conclusion which no reasonable chairman properly directing himself could have reached.

	First, she complains about the Chairman’s approach to the question of prejudice. She points out that the Chairman has not made any specific findings as to prejudice which will be suffered by the respondents. She has drawn our attention to cases where the importance of the respondents demonstrating prejudice has been stressed. She has also drawn our attention to cases where there have been specific findings that prejudice has occurred, for example, that a witness has died, or that documents have been lost or destroyed. Of course we accept that there are cases in which prejudice can be clearly established in that way. It is true, and we plainly accept, that this Chairman has not made any specific finding of prejudice. He has inferred prejudice from the surrounding circumstances and the delay.

	Mr Hunter for the respondents has told us that many specific examples of possible or potential prejudice were advanced to the Chairman. He was told that Mr Abdelmalak, who is plainly a relevant witness in the race discrimination matter, has been dismissed by the respondents on the ground of redundancy and is presently pursuing a claim of unfair dismissal against them. As Mr Hunter points out, that does not mean that he is not available as a witness, but it may affect his willingness to co-operate with the respondents. Mr Giangiacomo has left the respondent’s employment, although we observe that he did attend the tribunal hearing in June. It seems to us that there are other possible grounds for inferring that these respondents are likely to have been prejudiced by the delay in making this allegation of racial discrimination. It appears to us, and we understand that this was a matter discussed before the tribunal, that where the respondents have conducted a three-stage grievance procedure on one basis and are then expected to consider the same matters of complaint on a different basis, there is potential prejudice.

	Can it be said that the Chairman has failed adequately to set out the findings upon which he has reached his conclusion that potential prejudice to the respondents is so significant that the application must be refused? It may perhaps have been better had the Chairman been more explicit about the ways in which he envisaged that prejudice might arise. But we do not think, taking this decision in the round, that it could be said that the parties do not know and do not understand the basis upon which they have won or lost. We do not think that this decision can be impugned, either on the basis that the Chairman has failed to apply the proper principles in relation to prejudice, or that he has failed to explain his decision sufficiently to enable the parties or this Appeal Tribunal to understand why he has reached his conclusion.

	Miss Russell has also submitted that the Chairman erred in rejecting the submission that discrimination or harassment had adequately been alleged within the originating application. She referred us to the case of Dodd v British Telecommunications PLC [1988] ICR 116. We cannot accept her submissions on this point. It appears to us that the Chairman did direct himself in general terms as to the relative unimportance of the mislabelling of the relief in an originating application, and that he had reminded himself that it was only necessary for an applicant to set out the grounds on which relief is sought. This appellant had stated the grounds on which relief  was sought, unlike Mrs Dodd in the case of Dodd v British Telecommunications PLC. He had said that his claim was based on constructive dismissal, and there was only the most oblique reference to equal opportunities and discrimination. The Chairman in our view quite rightly considered that the references to discrimination, harassment and victimisation were entirely compatible with a claim for constructive dismissal, and in our view, it cannot be said that he has misdirected himself in holding that the originating application as originally drafted, did not cover a claim for race discrimination. 

	In any event, as Mr Hunter has pointed out, even had the originating application been wide enough to encompass a race discrimination claim, that claim would still have been out of time but only by nine months rather than the 15 months by which it was out of time when the application to amend was eventually made in June 1996.

	Miss Russell submits that the tribunal Chairman did not apply the proper test as required by Section 68(6) namely that he had not considered whether it was just and equitable to extend time for the claim for race discrimination. It is true that he does not use those very words, but the whole decision, both in the general statement of his approach in paragraphs 2 and 3, and in his application of the law to the facts which are set out in paragraph 4, is a consideration of whether it would be just and equitable to extend time, balancing, as he has done, the effect on both parties. We unanimously reject that criticism.

	Finally, Miss Russell has submitted that the decision was perverse in that there are a number of matters to which she says the Chairman has failed to give consideration, or has given insufficient consideration to. In particular she complains that the Chairman has not considered  that the factual basis of the race discrimination claim overlaps substantially with the factual basis of the constructive dismissal claim. It is true that the Chairman has not referred to that specifically. 

	Mr Hunter for the respondents has submitted that the degree of overlap is not great. He submits that the claims are legally and factually distinct. First of all he submits that whereas motive is highly relevant to a race discrimination claim, it is not relevant at all to a constructive dismissal claim. For our own part, we are not sure that it is right to say that motive can never be relevant in a constructive dismissal claim; we would have thought that it could be. But certainly so far as the alleged acts of abuse and the alleged remarks containing a racial element are concerned, we think that his point is well made. Second he submits that the essence of a constructive dismissal case is resignation in response to a serious breach of contract. Those are not matters which are at all relevant to a claim of racial harassment. Thirdly he submits that the periods of time covered by the two claims are different in that the racial harassment is alleged to have taken place between 1993 and December 1994, whereas it appears that significant events relevant to the constructive dismissal claim must have taken place in November 1995 in order to drive the appellant to resignation at that time. Thus, he submits that although there may be some common witnesses and some common areas of evidence, the overlap is not very great.

	It is not easy for us to form a concluded view about that. But it does appear to us that this is not a clear point which the Chairman was obliged to mention as having been taken into account. It seems to us that it is a matter on which opinions may be divided. We do not think that looking at this decision in the round, we could say that because the Chairman has not apparently taken account of the overlap between the two complaints, the decision is thereby plainly wrong and fatally flawed.

	For all those reasons therefore, we reject Miss Russell’s submissions. The task the Chairman faced was essentially the exercise of a broad discretion, and we are quite satisfied that the Chairman exercised his discretion appropriately on the basis of the material put before him. He has neither erred in law nor has he reached a conclusion which is plainly wrong. This appeal must therefore be dismissed.