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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> D'Souza v. Ouseley & Anor [2000] EAT 28_99_2501 (25 January 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/28_99_2501.html Cite as: [2000] EAT 28_99_2501

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APPEARANCES

 

For the Appellant	IN PERSON


 


MR JUSTICE CHARLES: The parties to the appeals before us are Mr D'Souza (the Appellant) and Sir Herman Ouseley and the London Borough of Lambeth (Respondents). This is not the first time that Mr D'Souza has brought claims and appeals against these Respondents.

Background

1. Before dealing with the appeals that are before us for preliminary hearing we think it important to set out some of the background. For present purposes an important part of that background is the judgment given by this Tribunal (His Honour Judge Peter Clark, Lord Gladwin of Clee CBE JP and Mr B.M. Warman) (Appeal No. EAT/199/98, EAT/489/98 and EAT/893/98) (the July 1998 EAT Judgment). A short and helpful description of the background can be found in the July 1998 EAT Judgment. It is in the following terms:

"Background

Mr D'Souza commenced employment with the Greater London Council in November 1984. Following its abolition he transferred to employment with Lambeth, holding a senior position in the computer services department from 3rd March 1986 until his dismissal on 16th January 1990.

During his employment with Lambeth he brought four separate complaints of unlawful racial discrimination and/or victimisation against his employer. He is of Asian ethnic origin. Following his dismissal he presented a fifth complaint of unfair dismissal and racial discrimination. The progress of those complaints, and inaction on the part of Lambeth in dealing with them, is fully set out in the judgment given on behalf of the Employment Appeal Tribunal by Morison P. and reported at [1997] IRLR 677. An order for reinstatement made after an Industrial Tribunal upheld the fifth complaint was not complied with on 25th March 1993. Ultimately he received an award of just over £350,000 as a result of the order of this Appeal Tribunal made on 9th October 1997. That award is currently the subject of an appeal to the Court of Appeal by Lambeth.

Sex Discrimination

Mr D'Souza's sex discrimination claim arises in this way. He wished to compare the treatment which he received at the hands of Lambeth with that afforded to a female employee, Ms Emma Lewis. Ms Lewis was first employed by Lambeth on 10th October 1978. She is black. She brought a complaint of racial discrimination under Case No. 32355/85 arising out of her non-selection for the post of District Rehousing Officer for the Kennington District in December 1985. That complaint was heard by an Industrial Tribunal sitting at London (South) under the chairmanship of Mrs T J Mason over seven days in September and November 1986. By a decision with full reasons promulgated on 19th December 1986 her complaint was dismissed.

Before coming to the material complaint we should refer to the judgment of Judge Hull QC, delivered on behalf of a division of the Employment Appeal Tribunal in EAT/1042/96 on 2nd July 1997. That was an appeal by Mr D'Souza against a decision of an Industrial Tribunal sitting at London (South) under the chairmanship of Mrs Gleeson on 26th June 1996 and promulgated on 13th August 1996 dismissing his then complaint of sex discrimination on the grounds that it was time-barred.

The EAT judgment records that in 1990 the appellant became aware of grounds for believing that he could bring a claim in respect of sex discrimination, but was advised not to proceed with such a claim by experienced solicitors then advising him, Messrs Lawford & Co.

It was not until 23rd February 1996 that he served a sex discrimination questionnaire on Lambeth, followed by an Industrial Tribunal complaint which was dismissed by Mrs Gleeson's tribunal on 13th August 1996. His appeal against that decision was dismissed by Judge Hull's Appeal Tribunal on 2nd July 1997.

It cannot be coincidental that the material complaint was presented to the Industrial Tribunal on the same day that Judge Hull delivered this tribunal's judgment in the matter of the first sex discrimination complaint. However, no question of issue estoppel or res judicata is raised in relation to the material complaint.

The material complaint

By his Originating Application dated 2nd July 1997 the appellant averred that although at the time when Lambeth refused to reinstate him, pursuant to the Industrial Tribunal's order on 25th March 1993 he believed that such refusal constituted unlawful sex discrimination he did not have the evidence to support such a claim. This was due to Lambeth giving him untrue information and suppressing relevant facts and documents. In particular, he was not able to obtain a copy of the Industrial Tribunal's decision in Ms Lewis' 1986 case until one was provided by the Commission for Racial Equality on 23rd June 1997.

He sought an extension of time for bringing this sex discrimination complaint on the basis that the delay in doing so was attributable to the tactics used by Lambeth."

2. The matters before this Tribunal which were dealt with in the July 1998 EAT judgment

appear from the opening paragraphs of that judgment which are in the following terms:

"We have before us ex parte preliminary hearings in three appeals brought by Mr D'Souza in his continuing litigation against his former employer, the London Borough of Lambeth ["Lambeth"]. They are as follows:

1) An appeal against a decision of the London (South) Industrial Tribunal in Case No. 2303224/97 ["the material complaint"], promulgated with extended reasons on 11th December 1997, dismissing his claims of sex discrimination and breach of the Equal Treatment Directive, on the grounds that the first was time-barred and that he had no claim under the Directive. That was a decision of a full Industrial Tribunal chaired by Mr G W Davis. We shall call it the substantive decision. This is the first appeal (EAT/199/98);

2) an appeal against a decision of the Chairman, Mr Davis promulgated with extended reasons on 2nd February 1998, refusing an application by Mr D'Souza dated 21st December 1997 for a review of the substantive decision. We shall call that the review decision. That is the second appeal (EAT/489/98);

3) Following a ruling which I gave earlier this morning in PA/733/98, for the reasons given in my judgment on that occasion, the third appeal (EAT/893/98) is an appeal by Mr D'Souza against a decision of the London (South) Regional Chairman, Mr Meeran, not to conduct a further review of the substantive decision, or a review of the review decision himself, or to refer the appellant's application for a further review dated 5th February 1998 to the President of Industrial Tribunals, His Honour Judge John Prophet, for determination."

3. The appeals that are before us relate to what is referred to in the July 1998 EAT judgment as "the substantive decision", namely the decision of the Employment Tribunal dealing with "the material complaint" which was promulgated with Extended Reasons on 11 December 1997.
4. As can be seen from the July 1998 EAT judgment on that occasion this Tribunal also dealt with appeals brought by Mr D'Souza in respect of two decisions relating to an application for a review of the substantive decision and a further application for a review.
5. The reasons given in the July 1998 EAT judgment for dismissing Mr D'Souza's appeal against the substantive decision were as follows:

"The substantive decision

The Davis Industrial Tribunal found that the appellant was no stranger to the Industrial Tribunal. He was now on his tenth complaint against Lambeth and in addition had three appeals before the EAT and one in the Court of Appeal. He had become familiar with employment law.

The tribunal record the nature of his complaint, namely the failure to reinstate him pursuant to the earlier Industrial Tribunal order compared with the treatment afforded to Ms Lewis. Whether that claim has any merits does not fall to be decided. The question is whether it is time-barred.

The tribunal did not accept that his waiting for a copy of Ms Lewis' decision prevented him from bringing his complaint. They weighed the prejudice to the parties in allowing the matter to proceed or not and concluded that it was not just and equitable for the complaint under the Sex Discrimination Act to proceed. Secondly, they found that the appellant had no free-standing cause of action under the Directive. Accordingly the complaint was dismissed.

The appeals

We have had the advantage of reading the concise and closely-argued skeleton submissions prepared by Mr D'Souza in relation to each of the three appeals. He has supplemented those submissions by oral argument today. Having considered the way in which the appeals are put we shall deal with each in turn.

The first appeal

Mr D'Souza first challenges the Industrial Tribunal finding that he had no claim under the Equal Treatment Directive. We reject that submission, first, on the ground that this is a claim of sex discrimination which can be brought under the Sex Discrimination Act. There is no material conflict between the Act and the Directive. Secondly, and in any event, the domestic procedural rules as to time limits under the 1975 Act apply. We see no distinction in principle between this case and that of Biggs v Somerset County Council [1996] ICR 364 simply on the basis that in Biggs the Court was dealing with the time limit under unfair dismissal legislation, which provides for extensions of time under the reasonable practicability test. and under the Sex Discrimination Act the just and equitable test applies. Further, we do not accept that the domestic procedural rules as to limitation of actions in sex discrimination complaints offends European law. Nor do we accept that the Industrial Tribunal rules of discovery, even if they are less favourable than the ordinary civil rules of automatic discovery, are of relevance in deciding the limitation issue in this case.

Secondly, as to the Industrial Tribunal's refusal to extend time, we have taken into account the background to the material complaint as Mr D'Souza has related it in his skeleton argument. In summary he repeats that he believed that he had a sex discrimination claim by reference to Ms Lewis before his dismissal.

Following his dismissal on 16th January 1990 he had a meeting with Mr Carmicheal, Lambeth's Chief Personnel and Management Services Officer and raised the case of Ms Lewis. He claims to have been told that the entire story about Ms Lewis and her tribunal case was untrue. He then discussed the possibility of raising a claim of sex discrimination with his solicitors, Messrs Lawford & Co, and was advised against it. He accepted that advice and instead pursued his claims of racial discrimination and unfair dismissal, with conspicuous success as it has turned out thus far.

On 24th October 1992 he saw an article in the Daily Telegraph concerning Ms Lewis. He has shown us that article. It was reported that Ms Lewis had been at home on paid leave for five years. Although she lost her claim of race discrimination before Mrs Mason's Industrial Tribunal, her claim was then accepted by a Council grievance panel. Finally, she accepted an undisclosed redundancy package in June 1992.

The appellant wrote to Lambeth's then Chief Executive, Sir Herman Ouseley as he now is, on 26th October 1992, but took no steps to issue a complaint of sex discrimination.

On 9th November 1992, he told us this morning, the appellant applied to an Industrial Tribunal for leave to amend his then complaint of racial discrimination to add a complaint of sex discrimination. That application was refused. He did not appeal against that decision.

On 25th March 1993 Lambeth informed the appellant that they would not reinstate him pursuant to the Industrial Tribunal's order. He contends that thereafter Lambeth's failure to reinstate him was a continuing act of sex discrimination (in separate proceedings he also contends that that was an act of unlawful racial discrimination and/or victimisation) so that the material complaint is in time. The Industrial Tribunal rejected that submission. In our view they were entitled so to do. It was a single act, not a continuing act, assuming that an act of sex discrimination after employment has ceased is justiciable. cf. Adekeye v Post Office (No.2) [1997] IRLR 105.

Reverting to the question of extending time under s.76(5), on the basis that the ordinary limitation period for bringing the material complaint expired, at the latest, three months after the refusal to reinstate in March 1993, was the tribunal entitled to conclude that it was not just and equitable to extend time where the material complaint was four years outside the ordinary time limit?

We remind ourselves of the approach set out in the judgment of Phillips J in Hutchinson v Westward Television Ltd [1977] ICR 279. S.76(5) gives a wide discretion to Industrial Tribunals. This Appeal Tribunal will only interfere with that exercise of discretion where it is shown that the Industrial Tribunal has failed to consider material factors, or had considered irrelevant factors or has otherwise reached a perverse conclusion.

In our judgment the Industrial Tribunal took into account relevant factors, it did not take into account irrelevant factors, and reached a permissible conclusion for the reasons given, weighing up the potential prejudice to both parties. In particular, it was entitled to reject as a good reason for delay the appellant's claimed difficulty in acquiring a copy of the Lewis Industrial Tribunal decision before issuing the material complaint. Further, it was open to the tribunal to reject the appellant's case that he had been prevented from bringing his complaint due to the alleged concealment of relevant facts by Lambeth. The position was sufficiently clear to him as a result of reading the Daily Telegraph article in October 1992. It is not a reason for failing to commence proceedings that one's opponent has not been forthcoming prior to the issue of proceedings. That is very often the reason for issuing proceedings.

We also reject the appellant's complaints about the fairness of the hearing before the Davis Industrial Tribunal. The respondent was plainly entitled to refer to the judgment of the EAT in Appeal 1041/96, although we see from the Chairman's comments on the Notice of Appeal that it did not assist the tribunal in reaching its decision. Secondly, the Chairman was entitled to reject the appellant's application for a direction that Mrs McKane should tender herself as a witness for cross-examination. Next, we do not accept that the Chairman gave the appearance of bias because, in his comments dated 30th January 1998, he proffered the opinion that Mr D'Souza was becoming a vexatious litigant. Finally, we have considered Mr D'Souza's various submissions to the effect that he did not receive a fair hearing before the Industrial Tribunal according to European law, and in particular Articles 5 and 6 of the Directive. We see no grounds for impugning the procedure followed by the Industrial Tribunal in this case.

In short, we uphold the substantive decision."

6. Following the dismissal of the appeals advanced by Mr D'Souza for the reasons set out in the July 1998 EAT judgment this Tribunal has made two further Orders concerning applications for review and leave to appeal made by Mr D'Souza. The first of these Orders is dated 12 October 1998 and is in the following terms:

"UPON THE APPLICATION of the Appellant by letter dated the 12^th day of August 1998 pursuant to Rule 33(1) of the Employment Appeal Tribunal Rules 1993 for a Review of the Orders of the Employment Appeal Tribunal made on the 22^nd day of July 1998.

THE TRIBUNAL ORDERS that the aforesaid application be refused."

The second Order made on 17 March 1999 is in the following terms:

"UPON judgment having been handed down on the 22^nd day of July 1998 when the appeals were dismissed

AND UPON the Appellant's application for a Review and leave to appeal to the Court of Appeal by letters dated the 31^st day of July 1998 and the 12^th day of August 1998 being dismissed by Orders dated the 12^th day of October 1998

AND UPON a further application for a Review by letter dated the 23^rd day of February 1999

AND UPON consideration of the aforesaid application that the law applicable to this case has been altered by the House of Lords decision in Kleinwort Benson Ltd –v- Lincoln City Council (1998) 4 AER 513 and in the ECJ decision in Levez –v- T H Jennings Ltd (1999) IRLR 36

IT IS ORDERED that the application is dismissed as the said decisions do not alter the position and do not constitute a ground for Review under Rule 33(1) of the EAT Rules of Procedure 1993."

7. Mr D'Souza informed us during the course of the hearing that he had not as yet pursued an appeal to the Court of Appeal. He told us that he wished to exhaust all possible remedies before the Employment Appeal Tribunal before he did this.

The Present Appeals

8. The present appeals relate to refusals by the Employment Tribunal (a) to review the original substantive decision which was sent to Mr D'Souza on 2 November 1998 (the November refusal of review), and (b) to review the November refusal to review which was sent to Mr D'Souza on 8 December 1998 (the December refusal of review).
9. The November refusal of review. This review was sought by a letter dated 26 October 1998 and, as we have said, sought a review of the substantive decision of the Employment Tribunal promulgated with Extended Reasons on 11 December 1997. The Extended Reasons for this refusal are in the following terms:

1. "By his letter dated 26 October 1998, the Applicant makes an application for a review of the Tribunal's decision which was promulgated on 11 December 1997.

2. The Applicant did make an application for review and this was refused by decision promulgated on 2 February 1998.

3. So far as I am aware, the Applicant has lodged appeals with the Employment Appeal Tribunal, both against the original decision on preliminary hearing and on my decision on his application for review.

4. Now, over a year after the preliminary hearing, the Applicant has submitted a further application for review under Rule 11(1)(e) that 'the interests of justice require such a review'.

5. This Applicant's employment with the London Borough of Lambeth ended in January 1990, and for the past eight years he has been pursuing numerous claims against the Council and has made very numerous applications both to the Employment Tribunal and to the Employment Appeal Tribunal. In one of his many applications, he was successful and awarded compensation amounting to over £358,00.

6. This present application for review arises because the Applicant has seen the report of Coote v Granada Hospitality Ltd [1998] IRLR 656. In that case, the European Court of Justice has ruled that the Sex Discrimination Act 1975 does not fully implement the EC Equal Treatment Directive because it does not allow claims to be brought against an employer after the ending of the employment. In the Coote case, the employer was alleged to have refused to provide a reference.

7. In the preliminary hearing which I dealt with in September 1997, the Respondent did raise the point that refusal to reinstate was an act which occurred after the ending of the employment and that therefore could not found a claim for sex discrimination. However, on the preliminary hearing, the Tribunal did not make any decision on this point, viz:-

'13 In any event it is to be noted that the refusal to reinstate was an act which occurred after the ending of the Applicant's employment although this is not a matter which calls for a decision here.'

8. Since the preliminary hearing did not decide that point, it is clearly not now possible to review that decision, and for this reason alone the Applicant's application has no reasonable prospect of success.

9. Rule 11(1)(e) does confer a wide discretion on the Tribunal, but whilst the discretion is wide, it is not boundless. The discretion must be exercised judicially and with regard not just to the interests of the party seeking the review, but also to the interests of the other party and to the public interest. In particular, it is in the public interest that there should be finality to litigation. Per Phillips J. Flint v Eastern Electricity Board [1975] ICR 404:

'It seems to me that it is very much in the interests of the general public that proceedings of this kind should be as final as possible: that it should only be in unusual cases that the employee, the Applicant before the Tribunal, is able to have a second bite at the cherry.'

10. I refuse the Applicant's application for review, because I have no doubt whatsoever that it has no reasonable prospect of success. So far as I am aware, the Applicant does have several other matters before the Employment Appeal Tribunal and it may well be that he will wish to ventilate this present matter as well."

10. The December refusal of review. This review was sought by a letter dated 12 November 1998 and as we have said it sought a review of the November refusal to review and therefore is, in effect, a review of the review. The letter dated 12 November 1998 raised points covered in the appeal and is in the following terms:

1. "Thank you for sending me the Decision dated 2.11.98 in respect of the above case which reached me on 4.11.98. I should be most grateful if you would treat this letter as an application for a review of that decision submitted under Rules 11(1)(d) [new evidence] and 11(1)(e) [interests of justice] of the Employment Tribunals Rules of Procedure 1993 on the following grounds.

2. I submit that the contents of paragraph 8 of the decision are irrelevant, as my application was made following a declaratory ruling by the European Court of Justice (ECJ) and in the circumstances any and all contradictory provisions of domestic law which are in conflict have to be disapplied by UK Courts and Tribunals.

3. As a layman, with no legal training whatsoever, I feel I cannot do better than to refer the learned Chairman to the contents of para P[89], and relevant subsequent paras, of Volume 3 of HARVEY Industrial Relations and Employment Law which deals with the matter authoritatively

4. I understand that the ECJ's ruling on EMMOTT and the EAT's ruling on CANNON are binding on Employment Tribunals, whose refusal to abide by these decisions is not only impermissible but may be illegitimate and/or unlawful. In the circumstances, I trust the learned Chairman will review his decision and permit the case to proceed to an early full hearing.

5. As far as the ruling in FLINT, quoted in para 9 of the decision, is concerned, I believe this is out-of-date and has been superseded by later rulings such as the Court of Appeal's judgment in HARBER v NORTH LONDON POLYTECHNIC [1990] IRLR 198 CA. If I am wrong about this, I request that the ruling of the ECJ in COOTE be treated as New Evidence and the review granted under rule 11(1)(d).

6. I am posting this letter by first class mail today but if it reaches you after the limitation period, I would request an extension of time under Rule 15(1) of the 1993 Rules on grounds of postal delay.

7. Both the Chairman and the Regional Chairman have not responded to a previous application for review and, in the event of this application receiving similar treatment, I would request you to kindly refer the matter to the President of the Industrial Tribunals for his decision pursuant to Rule 11(5) of the 1993 Rules. If you are not willing to do this, please let me know urgently in order that I can approach him in order to save the time and expense involved in pursuing an appeal with the EAT. Perhaps you would be kind enough to let me have his address in order that I can write directly to his Lordship.

8. I thank you in advance for your kind attention and prompt action, and look forward to an early decision and reply. Please be good enough to acknowledge receipt of this letter."

11. The Extended Reasons refusing this application for review are in the following terms:

1 "By his letter dated 12 November 1998, the Applicant has now made a third application for a review.

2 I do not accept that the letter of 12 November 1998 contains any new grounds which would permit a review, and, in my judgment, the Applicant has now become a vexatious litigant.

3 I refuse the Applicant's application for a review on the ground that the application has no reasonable prospect of success, and I repeat the reasons given in the two previous decisions on the applications for review."

12. Pausing there, it can be seen that these two applications for review to the Employment Tribunal come between the two applications for review that were made to the Employment Appeal Tribunal by Mr D'Souza and which were the subject of the orders made on 12 October 1998 and 17 March 1999.
13. All the applications for review concern the same substantive decision of the Employment Tribunal (ie that promulgated on 11 December 1997) although, of course, the reviews in respect of the decision of the EAT relate to the July 1998 EAT judgment.

The Rules Relating to Review

14. In respect of the Employment Tribunal this is Rule 11 (1) to (7) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993, Schedule 1 and is in the following terms:

(1) "Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that –

(a) the decision was wrongly made as a result of an error on the part of the tribunal staff;

(b) a party did not receive notice of the proceedings leading to the decision;

(c) the decision was made in the absence of a party;

(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing; or

(e) the interests of justice require such a review.

(2) A tribunal may not review a decision of its own motion unless it is the tribunal which issued the decision.

(3) A tribunal may only review a decision of its own motion if, within the period beginning with the date of the hearing and ending with the fourteenth day after the date on which the decision was sent to the parties, it has sent notice to each of the parties explaining in summary form the ground upon which and reasons why it is proposed to review the decision and giving them an opportunity to show cause why there should be no review.

(4) An application for the purposes of paragraph (1) may be made at the hearing. If no application is made at the hearing, an application may be made to the Secretary at any time from the date of the hearing until 14 days after the date on which the decision was sent to the parties and must be in writing stating the grounds in full.

(5) An application for the purposes of paragraph (1) may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success.

(6) If such an application is not refused under paragraph (5) it shall be heard by the tribunal which decided the case, or –

(a) where it is not practicable for it to be heard by that tribunal, or

(b) where the decision was made by a chairman acting alone under rule 13(8), by a tribunal appointed by either the President or a Regional Chairman.

(7) On reviewing its decision a tribunal may confirm the decision, or vary or revoke the decision under the chairman's hand; and if it revokes the decision, the tribunal shall order a re-hearing before either the same or a differently constituted tribunal."

15. In respect of the review of decisions of the Employment Appeal Tribunal the relevant rule is Rule 33 (1) to (3) of the Employment Tribunals Rules 1993. This is in the following terms:

(1) "The Appeal Tribunal may, of its own motion or on application, review any order made by it and may, on such review, revoke or vary that order on the grounds that –

(a) the order was wrongly made as the result of an error on the part of the Tribunal or its staff;

(b) a party did not receive proper notice of the proceedings leading to the order; or

(c) the interests of justice require such review.

(2) An application under paragraph (1) above shall be made within 14 days of the date of the order.

(3) A clerical mistake in any order arising from an accidental slip or omission may at any time be corrected by, or on the authority of, a judge or member."

16. The Rules are not in identical terms but there is a substantial overlap between them.

The Hearing Before Us

17. At the beginning of that hearing we invited Mr D'Souza to make submissions to us on the point whether it was appropriate and correct for him to seek a review of decisions of the Employment Tribunal when:

(a) the substantive decision of the Employment Tribunal promulgated on 11 December 1997 had been appealed to this Tribunal and that appeal had been dismissed; and

(b) Rule 33 of the Employment Appeal Tribunal Rules enabled Mr D'Souza to make an application for review of the decision of this Tribunal.

18. It will be apparent from that question that at the time we posed it we were unaware that Mr D'Souza had sought to review the decision of this Tribunal and indeed that he had sought to do so after he had appealed against the refusals of the Employment Tribunal to review contained in the November refusal of review and the December refusal of review.
19. In dealing with this question Mr D'Souza told us that he had sought reviews of the July 1998 EAT judgment. He also told us (as is indeed apparent from the terms of the Order of this Tribunal dated 17 March 1999) that there is a substantial overlap between the grounds upon which he sought a further review of the July 1998 EAT judgment (by his letter dated 23 February 1999) and the grounds upon which he is appealing against the November refusal of review and the December refusal of review by the Employment Tribunal. There is not a complete overlap between these grounds and the arguments Mr D'Souza relies on in support of them because following the March 1999 decision of this Tribunal there have been further judgments to which Mr D'Souza has referred and, in particular to judgments of this Tribunal in firstly Coote v Granada Hospitality Ltd (EAT/1332/95) delivered on 19 May 1999 and a more recent judgment of this Tribunal in Levez v T H Jennings (Harlow Pools) Ltd and Hicking v Basford Group Ltd (In Receivership) (EAT/812/94 and EAT/311/99). In his earlier arguments and applications Mr D'Souza had relied upon the Coote case and the Levez case in the European Court of Justice (see Coote v Granada Hospitality Ltd [1998] IRLR 656 and Levez v T H Jennings Ltd [1999] IRLR 36.

Procedural Conclusion

20. In our judgment the applications for further review to the Employment Tribunal that are the subject matter of the appeals before us, and those appeals themselves, are abuses of process. Our main reasons for this conclusion are as follows:

(a) The basis for the reviews resulting in the November and December refusals of review and the grounds of appeal essentially repeat matters already dealt with by this Tribunal in the July 1998 EAT judgment and the refusals by this Tribunal to review that decision,

(b) Mr D'Souza's argument that new evidence has now become available is a bad one, and in any event would not warrant an application for review by the Employment Tribunal pursuant to Rule 11 of its Rules as opposed to a review by the Employment Appeal Tribunal pursuant to Rule 33 of its Rules, and

(c) Mr D'Souza's assertion that he was seeking to take every course available to him to have his arguments heard by the Employment Appeal Tribunal before going to the Court of Appeal does not provide a good reason (i) for seeking further reviews by the Employment Tribunal, or (ii) for pursuing appeals against their refusal.

21. As to point (b) we add that the new evidence which Mr D'Souza maintained had become available was in fact decisions of the European Court of Justice and other courts given after earlier hearings. In our judgment that is not new evidence and, in any event such decisions, and any changes in the law that they brought about, can and should properly be considered (if at all) under the ground: "The interests of Justice require such a review" which is included in both Rules.
22. As to point (c) we note that Mr D'Souza in fact sought leave to appeal to the Court of Appeal against the July 1998 EAT judgment.

Conclusion

23. Accordingly we dismiss both appeals on the basis that each of them constitutes an abuse of process.
24. In our judgment if Mr D'Souza wishes to pursue the arguments he has advanced in the appeals before us he cannot do so properly by making applications for review to the Employment Tribunal. The proper course now still open to him is to seek to pursue those arguments by trying to obtain leave from the Court of Appeal to appeal out of time against the July 1998 decision of this Tribunal. As we have already mentioned leave to appeal against that decision has already been refused by this Tribunal.

Further Comment

25. Mr D'Souza presented his arguments to us in respect of the grounds set out in the Notice of Appeal against the November and December refusals to review in a detailed manner. He did so in writing and orally. It is clear from both his written and oral submissions that Mr D'Souza has done an enormous amount of work considering the law relating to sex discrimination and victimisation.
26. In view of our conclusion reached above it is not necessary for us to consider Mr D'Souza's arguments and grounds of appeal. However, having considered his submissions and arguments we record that in our judgment he has not raised points of law that are reasonably arguable to support a conclusion that the original decision of the Employment Tribunal and the decision of this Tribunal (contained in the July 1998 EAT judgment) dismissing his appeal against that decision were wrong.
27. In view of our conclusion that these appeals are an abuse of process we shall not deal with Mr D'Souza's arguments and our reasoning for the above conclusion in detail. However, we make the following points:

(a) When Mr D'Souza presented his claims under Sections 1 and 4 of the Sex Discrimination Act 1975 and under Articles 3, 5 and 7 of the Equal Treatment Directive (76/207/EEC) (the Directive) on 2 July 1997 and therefore over four years outside the statutory time limit contained in Section 76 of the Sex Discrimination Act 1975, the reason given by Mr D'Souza for advancing his claim late was that he was waiting for a copy of the Emma Lewis decision. This was considered by the Employment Tribunal and the appeal against the decision of the Employment Tribunal not to extend time was dismissed by the Employment Appeal Tribunal who say: "The position was sufficiently clear to him (Mr D'Souza) as a result of reading the Daily Telegraph article in October 1992. It is not a reason for failing to commence proceedings that one's opponent has not been forthcoming prior to the issue of proceedings".

(b) At the Employment Tribunal and the Employment Appeal Tribunal Mr D'Souza sought adjournments to await the outcome of a decision or decisions of the European Court of Justice and, in particular of the decision of the European Court of Justice in Coote v Granada Hospitality Ltd in which the order for reference was dated 20 November 1996. Those applications for adjournments (together with the record of Mr D'Souza's arguments contained in the judgments of the Employment Tribunal and the Employment Appeal Tribunal) show that in broad terms Mr D'Souza was at those stages running the arguments:

(i) as to the existence and nature of his claims,

(ii) that it was just and equitable to extend time, and

(iii) that the time limits in Section 76 of the Sex Discrimination Act 1975 should be disapplied, and further or alternatively not applied to his claims under the Directive

that Mr D'Souza has advanced on these appeals.

(c) Again in round terms at the times that Mr D'Souza presented his claims in July 1997 and argued them before the Employment Tribunal and the Employment Appeal Tribunal Mr D'Souza was asserting that the law accorded with the decisions later made in the European Court of Justice and by this Tribunal in Coote v Granada Hospitality Ltd;

(d) Following the decision of the European Court of Justice in Coote v Granada Hospitality Ltd this Tribunal chaired by the President has concluded that the Sex Discrimination Act 1975 should be construed so as to give effect to the ruling of the European Court of Justice and has expressed doubt as to the reasoning of the Court of Appeal in Adekeye v Post Office (No.2) [1997] IRLR 105. It follows that and on the basis of that decision of the Employment Appeal Tribunal in Coote Mr D'Souza could (as he has always asserted) base his claims on Sections 1 and 4 of the Sex Discrimination Act 1975.

(e) The position has therefore been reached that in respect of Mr D'Souza's claims under Sections 1 and 4 of the Sex Discrimination Act 1975 the position assumed but not decided by the Employment Tribunal for the purposes of exercising its discretion under Section 76(5) of the Sex Discrimination Act 1975, namely that Mr D'Souza could bring his claim although it was based upon an act after the termination of his employment has been found to be the law.

(f) Mr D'Souza has argued that the Employment Tribunal and the Employment Appeal Tribunal were wrong to make such an assumption and that they could not give themselves jurisdiction to consider whether or not to extend time on that basis. We do not agree. Mr D'Souza was arguing that he could bring such a claim and such argument could have been dealt with as a preliminary point or as part of the main hearing if time had been extended. The argument was therefore an issue in the proceedings. In our judgment another issue in the proceedings and one which the Tribunal had jurisdiction to determine was whether or not, in any event, the complaint had been made in time and if not, whether time should be extended on the basis that such an extension was just and equitable.

(g) In any event, if the question whether it would be just and equitable to extend Mr D'Souza's time for bringing his claims was to be reconsidered now this would be done on the basis being asserted by Mr D'Souza in reliance on the Sex Discrimination Act and the Directive and assumed (or not decided) by the Employment Tribunal when they refused to extend time, namely that Mr D'Souza could bring his claims notwithstanding that they were based on events that happened after the termination of his employment. The recent authorities that Mr D'Souza seeks to rely on therefore establish the basis upon which the original decision was made and in those circumstances, we do not see why it is reasonably arguable that the exercise of discretion should be re-visited.

(h) This case is therefore very different to the cases relied on by Mr D'Souza, namely Rastall v Midlands Electricity Plc [1996] ICR 644, Methilhill Bowling Club v Hunter [1995] IRLR 232 and Rankin v British Coal Corporation [1993] IRLR 70 because, as we have explained, he was asserting that he could bring his claim under the Sex Discrimination Act and further or alternatively the Directive at the time he presented his complaint to the Employment Tribunal and his claims were not dealt with on the basis that he could not. His argument for extending time was that he lacked factual rather than legal information.

(i) In the light of the recent decision of this Tribunal in Coote Mr D'Souza's argument that he additionally has a claim under the Directive does not in our view add anything and means that the position now is as stated by the Employment Appeal Tribunal in the July 1998 EAT judgment. Further, and in any event, we are of the view that any further or alternative claim that Mr D'Souza wishes to advance under the Directive would be out of time and that the decision of the Employment Tribunal not to extend time and the dismissal of the appeal against that decision by this Tribunal apply, or should be treated as applying, to such claims.

(j) Mr D'Souza also argues that the statutory time limit in Section 76 (1) (and on part of his argument as we understand it Section 76 (5)) should be disapplied in respect of his claims under the Sex Discrimination Act 1975 and not applied in respect of his further or alternative claims under the Directive. As to that argument he relies on the decisions of the European Court of Justice and of this Tribunal in the Levez case and the principles of "equivalence" and "effectiveness" referred to therein. We do not accept that these arguments advanced by Mr D'Souza amount to reasonable arguments at law.

(k) One strand of the argument is that a comparison should be made with claims under Part III of the Sex Discrimination Act 1975 and, as we understood him, he used that comparison to introduce either

(i) a limitation period of six months through Section 76 (2) of the Sex Discrimination Act 1975, or

(ii) a limitation period of six years through the Limitation Act 1980, or

(iii) Section 33 of the Limitation Act 1980 applies if section 76(5) of the Sex Discrimination Act, or a similar provision giving the Employment Tribunal a discretion to extend time applies.

(l) If Section 76 (2) of the Sex Discrimination Act 1975 is so introduced it adds nothing because the sixth month period referred to therein had expired before the proceedings were begun and one returns to Section 76 (5) and a consideration of whether or not in all the circumstances of the case it is just and equitable to extend the time.

(m) We do not accept that a relevant comparable is a six or twelve year period of limitation contained in the Limitation Act.

(n) Further, we do not accept that it is reasonably arguable that the Employment Tribunal or the Employment Appeal Tribunal erred in law in not referring to the matters set out in Section 33 (3) of the Limitation Act 1980. That section introduces those matters by saying:

"In acting under this section the court shall have regard to all the circumstances of the case and in particular to - ."

The subsection therefore identifies matters to be taken into account in exercising a discretion based on all the circumstances which is the statutory test contained in Section 76 (5). It is clear that the Employment Tribunal and the Employment Appeal Tribunal were fully aware that in exercising its discretion under Section 76 (5) the Employment Tribunal had to have regard to all the relevant circumstances of the case.

28. It follows in our judgment that the assumptions and approach taken in respect of the original exercise of discretion as to the extension of time have the consequence that notwithstanding the recent decisions of the European Court of Justice and of this Tribunal the relevant circumstances concerning that exercise of discretion have not materially altered and Mr D'Souza has no reasonably arguable point of law that the issue whether he should be given an extension of time, or his claims more generally, should be re-visited.