Appeal No.	EAT/1064/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 November 1998

Before
THE HONOURABLE MRS JUSTICE SMITH
DR D GRIEVES CBE
MR S M SPRINGER MBE

(1) MR G O GREY 
(2) MS W L DANIEL	APPELLANTS

LONDON BOROUGH OF SOUTHWARK	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the First Appellant

For the Second Appellant	MR G O GREY
IN PERSON

MR G O GREY
(The First Appellant)	
For the Respondents	MS G BANKOLE-JONES
(of Counsel)
Legal Services Dept
London Borough of Southwark
South House 30-32 Peckham Road
London SE5 8UB	

	MRS JUSTICE SMITH:     This is an appeal from the decision of an Industrial Tribunal Chairman sitting alone at London (South) on 6 July 1998.  In that decision he made a number of interlocutory orders with which the Appellants, Mr Grey and Ms Daniel, are dissatisfied.

	There are three Applicants in the claims which are to be brought before an Employment Tribunal in January 1999.  Mr Grey, Ms Daniel and Ms Kamara were employed by the Respondents until their dismissal in August 1997.  The Respondents say that the dismissals were for the reason of redundancy.  The three Applicants, who are all black, say that their dismissals were unfair and that their selection for dismissal was discriminatory on racial grounds.  Mr Grey alleges victimisation under the Race Relations Act 1976 and also victimisation on the ground that he had taken part in trade union activities.  Ms Daniel’s claim is similar to Mr Grey’s, save that she does not allege victimisation on the ground of trade union activities, but she does allege sex discrimination.  We do not know exactly what Ms Kamara’s claim entails, as she has not appealed against the interlocutory orders of the Chairman.

	Mr Grey has been employed by the Respondents since 1989 and has, over the years, made a number of complaints under the Respondents’ grievance procedure.  He has also made complaints of racial discrimination to Industrial Tribunals.  He relies upon these complaints as “protected acts” in support of his victimisation claim.  Also, he has represented his trade union in consultation processes and has represented fellow members of the trade union in grievance procedures and at Industrial Tribunals.  He seeks to rely on those events as “protected acts”.  He also wishes to show, as part of the history leading up to his dismissal, that those background matters have resulted in the Respondents’ attitude to him being unfavourable, so that they have discriminated against him and victimised him when, in 1997, the Respondents decided to reduce the number of personnel in the department where he was employed.  

	Plainly, it is a matter of importance, before a hearing which will cover so many issues, to define the limits of the background evidence which is to be given.  For this purpose an interlocutory hearing was convened for 22 June 1998.  A letter was sent to the parties on a Chairman’s order, defining the issues which were to be decided at the forthcoming hearing.  In the event, not all of those issues were covered at the hearing on 22 June and the Chairman Mr Peters, in adjourning the hearing to another date, 6 July, provided a list of matters which remained outstanding, the first of which was:-

(i)  to establish a definitive and comprehensive list of issues in relation to each case and in relation to each Respondent.

	On 6 July, in dealing with the first main question to which we have just referred, the Chairman Mr Booth said this:

“3.  It is agreed between the parties that the single act which gives rise to all these complaints is the dismissal of the Applicants by the Respondent, and therefore save only for the protected act for the purposes of victimisation the evidence will be limited to those parts of the redundancy exercise, the selection of the Applicants and the failure to redeploy them which the Applicants say are discriminatory.
4.  The Applicants have listed the protected acts and the Respondent must by, 30 September state whether they accept them or any of them as fulfilling the requirements of section 2 of the Race Relations Act 1976, and further they accept that they are made in good faith.”

	On receiving a copy of that order Mr Grey and Ms Daniel were concerned.  Mr Grey has explained to us that he thought that the effect of that order was to restrict the Appellants to providing a list of occasions and events which were capable of amounting to protected acts.  We understand his concern.  It is his case and, as we understand it, that of Ms Daniel, that they were targeted for dismissal as the result of previous events.  How, he asks, could he show that there was antipathy towards him before the dismissal process began, unless he was able to give evidence of how and when that antipathy arose.

	Ms Jones for the Respondents has agreed that the order, as made by the Chairman, is not clear, although she thought that the Chairman had not intended to restrict the Appellants as Mr Grey feared.  Without in any way wishing to interfere in the exercise of the Chairman’s control of proceedings before him, we do think that some clarification is needed so that the Appellants can prepare their witness statements.  The Chairman had directed that witness statements were to be exchanged by 30 September 1998.  For understandable reasons, that has not been done.

	Given the opportunity to confer, Ms Jones and Mr Grey have reached agreement as to the scope of Mr Grey’s background evidence.  Ms Jones has undertaken to provide to the Appeal Tribunal a schedule of the heads of agreement which will follow the headings within the further and better particulars provided by Mr Grey.  We direct that that schedule should be annexed to this judgment of the Appeal Tribunal.

	Ms Daniel the second Appellant has not attended this hearing.  Mr Grey represented her interests, but he did not expect to be required to descend into particulars as he was in the event required.  We direct that the parties, that is, the Respondent and Ms Daniel (represented if she so wishes by Mr Grey) should confer and attempt to reach an agreement as to the scope of her background evidence, along the lines agreed in the case of Mr Grey.  We approve of the approach which the parties have adopted in Mr Grey’s case and it is our intention that the same principles should be applied to the case of Ms Daniel.  This exercise should be completed within 7 days of today.  An extension of time of 14 days from today will be granted to both Mr Grey and Ms Daniel for the service of their witness statements.

	We turn now to deal with two other issues raised in this appeal upon which there has been no agreement.

	At the hearing on 6 July the Appellant sought to amend his Originating Application to include a complaint of breach of contract.  The essence of his complaint is that he, having been selected for redundancy and dismissed raised a grievance under the Respondent’s grievance procedure.  This was not dealt with during the notice period and his employment ceased without it ever being dealt with.  He did not raise this complaint on his Originating Application.

	The Chairman, on 6 July, refused leave to amend.  He said:

“6.  ... This amendment is sought many months after the three months time limit imposed by The Industrial Tribunal Extension of Jurisdiction (England and Wales) Order 1994 and I have heard no grounds to persuade me that it was not reasonably practicable to present this complaint in time.  Moreover on the Applicants’ own admission it adds little to the case and certainly nothing to the remedy sought.  In those circumstances I refuse the amendment.”

	Mr Grey submitted that the Chairman erred in law, in particular, in saying that the claim added little to the case and nothing to the remedy sought.  It is accepted on both sides that the fact that the grievance was not heard before the employment ended, will be put before the Tribunal at the hearing.  Mr Grey submitted that he should be permitted to pursue a claim for breach of contract because he foresees, as at least a theoretical possibility, that he could fail on his claims for unfair dismissal, discrimination and victimisation and yet win in a claim for breach of contract.  Therefore, he says, he ought to be allowed to pursue it as a discrete claim.

	We think the Chairman may have erred in saying that the claim could add nothing to the remedies available to the Appellant.  Theoretically at least, it possibly could, in that it may have been open to the Tribunal to conclude that the notice period should have been extended in order to allow the grievance to be heard.  That might theoretically result in an award of some weeks’ pay.  That said, the basis of the Chairman’s order was, in our view, correct.  This was a separate claim, which was sought to be added, long after the time limit had expired.  It plainly was reasonably practicable for the Appellant to have brought the claim in time, along with his other claims.  Plainly, this claim was an after-thought.

	This Appeal Tribunal can only interfere with the Chairman’s refusal to amend if his decision was perverse.  In our view this decision was not plainly wrong.  It was a decision which was open to him.  In our view this ground of appeal fails.

	The Appellant’s third complaint is that the Chairman’s order is silent on an important question upon which directions had been sought.  That is the question of whether, and if so how, the Appellants are to be permitted to complain of indirect racial discrimination.  Although it is agreed that the point was raised and discussed at the hearing on 6 July, the Chairman’s order on this subject is silent.  Ms Jones submits that the Appellant’s pleading did not cover the issue of indirect racial discrimination.  The Appellant had not made an application to amend his Originating Application and that he had, in effect, abandoned his right to do so at the hearing on 6 July.  That, she says, is what we should infer from the silence of the Chairman’s order on this topic.  The Appellant disagrees.  He agrees that his IT1 did not specify a claim of indirect racial discrimination.  It mentioned only racial discrimination and victimisation, but he has told us that his Race Relations Act Questionnaire asked questions which related to indirect discrimination.  He says that he asked a question about the reports, which he believes exist, into the monitoring and statistical analysis of the occupational assessment tests used in the Respondents’ redundancy selection process.  It is Mr Grey’s belief and contention that candidates from ethnic minorities do less well in those tests than white candidates, and the use of such tests amounts to indirect racial discrimination.  He has told us that the Respondents’ answer to the questionnaire indicated that such documents do exist.  We should interpose to say that Ms Jones is unsure of that.  It is unfortunate that the questionnaire and answers are not available to us today.  Be that as it may, the issue was undoubtedly raised by the Chairman who convened the meeting of 22 June 1998.  At paragraph 4 of the letter advising the parties of the issues to be discussed on that occasion, he said this:

“4.  Furthermore, if any Applicant wishes to allege indirect sex or race discrimination, the Chairman will also no doubt wish to identify:
(i)  the requirement or condition which it is alleged the Respondents applied
(ii)  how it is alleged the Applicant cannot comply with such requirement or condition
(iii)  what evidence is there that others can comply 
(iv)  how the Applicant is disadvantaged.

	The Applicant put in written submissions explaining his argument on this topic and reiterating the request for discovery which he tells us he had made, perhaps inappropriately, in the Race Relations Act Questionnaire.

	We are concerned that we do not know what the Chairman decided, yet we are reluctant to adjourn this case for further enquiries to be made.  The case is due to come on for hearing in January 1999.  Three weeks have been set aside for that hearing.  It must not be adjourned and it is important that the issues are defined as soon as possible.  We have been told that some discovery on this topic has been provided by the Respondents on a voluntary basis.  Indeed, one document was shown to us which was disclosed as recently as yesterday.  We should mention that the Appellant remains dissatisfied with the discovery provided on this point.

	Because we wish to clarify matters as soon as possible we propose to say this.  First, we consider that the issue is before the Employment Tribunal.  The pleading is adequate to cover direct and indirect discrimination, subject to clarification in further and better particulars, which were given on request in the present case.

	Second, it is a matter for the Appellants whether they pursue this aspect of their claim.  Certainly, on the basis of the document presently disclosed which we have seen, there would be little point in pursuing the argument, but it is a matter for the Appellants to decide whether they wish to pursue their claims for further discovery before the Employment Tribunal.  We have no jurisdiction on this appeal, to consider whether there should be an order for discovery.

	In the event we make no order on this appeal, but we direct that a transcript of this decision be sent to the Chairman seized of the full hearing and we direct that the schedule of heads of agreement, which Ms Jones will supply, should be annexed to our decision.