Appeal No. EAT/0838/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 November 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR R SANDERSON OBE
MR J C SHRIGLEY

MR F MACAULAY	APPELLANT

1) LONDON BOROUGH OF HACKNEY 2) MS M CHALLONOR	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS RAYNER
(Of Counsel)
Instructed by:
Islington Law Centre
161 Hornsey Road
London
N7 6DU

For the Respondent	MISS MACLAREN
(Of Counsel)
Instructed by:
Hackney Legal Services
183-187 Stoke Newington High Street
London
N16 OLH	

JUDGE PETER CLARK

1.	This an appeal by Mr Macaulay against certain orders made by an Employment Tribunal at what was London (North), now London (Central), chaired by Mr G M Pettigrew, sitting on 9 May 2000.  The Employment Tribunal’s decision was promulgated with Extended Reasons on 25 May 2000.

Background
2.	The Appellant was employed by the Respondent Council, Hackney from 1 June 1985 until 12 May 1998.

3.	Following his dismissal he presented an Originating Application to the Employment Tribunal (Case No 3202288(98)) alleging unfair dismissal, constructive dismissal and race and sex discrimination (the first complaint).

4.	The first complaint came on for hearing before an Employment Tribunal sitting at Stratford over 5 days commencing on 29 November 1999.  By a decision promulgated on 2 February 2000 that Employment Tribunal chaired by Ms Vivienne Gay upheld the Appellant’s complaint of unfair dismissal but dismissed those alleging unlawful discrimination.

5.	Meanwhile the Appellant had secured an offer of alternative employment with the London Borough of Camden, subject to satisfactory references being taken up.  On 20 August Camden wrote to the Respondent asking for a reference.  The Respondent replied with a completed questionnaire filled in by the Appellant’s line manager at Hackney, Ms Challenor, dated 25 August 1999.  As a result of that reference, which made unfavourable remarks about the Appellant’s performance whilst employed by Hackney, Camden withdrew its offer of employment by a letter to the Appellant dated 1 September.

6.	On 22 November 1999, one week before the commencement of the hearing of the first complaint at Stratford, the Appellant presented a further application to the Employment Tribunal (Case No 2201218/99) (the second complaint).  He there set out the nature of his case, which was that in the first complaint he had alleged that Ms Challoner had racially and sexually discriminated against him by commencing and proceeding with the Respondent’s poor performance procedure and that she had now victimised him by giving an inaccurate, misleading and unfair reference on him to Camden on 25 August 1999.  The particulars of his grounds of complaint settled by solicitors then acting for him, Doyle Clayton, conclude:

“5.	Therefore the Applicant contends that the actions of Ms Challoner in giving such a reference is further evidence of the continuing victimisation he has suffered after his employment with the London Borough of Hackney ended on 12 May 1998.  The Applicant asserts that were it not for his previous complaint to the Tribunal, the Respondents would not have penalised him by giving such a reference (s.2 Race Relations Act 1976).”

7.	On 29 April 2000 the Appellant wrote a letter to the Employment Tribunal in which he asked for leave to amend his Originating Application in the second complaint to add a complaint of victimisation contrary to s4 of the Sex Discrimination Act 1975.

The Employment Tribunal Decision
8.	Against that background the matter came before Mr Pettigrew’s Employment Tribunal on 9 May 2000 at which the following issues arose for determination.  First, whether or not the hearing should be postponed.  That application was refused and then these questions:

	(1)	whether or not the Employment Tribunal had jurisdiction to entertain a complaint of victimisation contrary to Race Relations Act s2 where the act complained of, the giving of the reference to Camden on 25 August 1999, post-dated the termination of his employment with the Respondent on 12 May 1998.

	(2)	whether the Appellant ought to be granted permission to amend his Originating Application in the second complaint to add a claim of victimisation contrary to s4 of the Sex Discrimination Act 1975 (sex victimisation).

9.	The Employment Tribunal resolved those issues as follows:

	(1)	Jurisdiction
Based on the Court of Appeal decision in Adekeye v The Post Office (No 2) [1997] IRLR 105 (CA) the Employment Tribunal regarded themselves as bound to hold that it had no jurisdiction to entertain a post-termination complaint of race victimisation.

(2)	Amendment
The Employment Tribunal considered that it would be open to the Appellant to bring a claim of post termination victimisation under the Sex Discrimination Act following the European Court of Justice ruling in Coote v Granada Hospitality Ltd [1998] IRLR 656.

10.	However, the Employment Tribunal disallowed the amendment.  Their reasoning was:

	(i)	the facts relied upon in support of the complaint of sex victimisation were exactly the same as those relied on in the Originating Application in relation to race victimisation.

	(ii)	balancing the prejudice as between the parties the Employment Tribunal found that there had been considerable delay between the alleged act of victimisation coming to the Appellant’s notice on about 1 September 1999 and his application for leave to amend on 29 April 2000; he had access to legal advice (the second complaint as we have observed was drafted by solicitors then acting for him in relation to the first complaint); the Appellant was aware of his rights under both the Sex Discrimination Act and the Race Relations Act; the Respondent was prejudiced by having to face a claim which it had not anticipated.  That was not, the Tribunal found, a particularly substantial prejudice.  The Appellant could go to the County Court with a claim for negligent misstatement or breach of contract against the Respondent and may have a claim against his former advisors for the way in which the Originating Application in the second complaint was drafted.

Weighing up these factors the Employment Tribunal concluded that it would not be just and equitable to allow the amendment.

The Appeal
11.	(1)	Jurisdiction
Having considered the Court of Appeal judgment in D’Souza v London Borough of Lambeth (CA/2000/2600. 25 May 2001. Unreported), as to which we indicated to counsel our understanding that the House of Lords have informed the parties in that case that they are minded to allow Mr D’Souza’s petition for permission to appeal, permission having been refused by the Court of Appeal, against the background of the earlier Court of Appeal decisions in Adekeye (No 2) and Rhys-Harper v Relaxion Group Plc [2001] IRLR 460, Miss Rayner formally withdrew this part of her appeal, that is against the Employment Tribunal’s finding that it had no jurisdiction to entertain the Appellant’s complaint of race victimisation.  

12.	By the same token, Miss Maclaren confirmed that there was no cross-appeal against the Employment Tribunal’s finding that it would have jurisdiction to consider the Appellant’s complaint of victimisation under the Sex Discrimination Act if the amendment sought was to be granted.

13.	In these circumstances the only issue remaining in this appeal is the amendment ruling.

(2)	Amendment
In attacking the Employment Tribunal’s refusal to grant permission to the Appellant to amend the second complaint by adding a claim of sex victimisation Miss Rayner takes the following points:

	(i)	This was simply a matter of labelling.  As the Employment Tribunal found, the claim of sex victimisation arose out of the same facts originally pleaded in support of the timeous race victimisation complaint.  The case therefore falls within the second of the 3 categories of amendment, helpfully identified at paragraph T 311.03 of Harvey on Industrial Relations and Employment Law, that is, an amendment which adds a new cause of action but one which is linked to, or arises out of the same facts as the original claim.  In these circumstances the amendment she submits ought to be allowed.  See for example Home Office v Bose [1979] ICR 481.

	(ii)	in taking into account their finding that the Appellant had provided no explanation for the delay in applying for the amendment between 22 November 1999 and 29 April 2000 the Employment Tribunal had fallen into error by not itself seeking an explanation for that delay from the Appellant.

	(iii)	that as to the delay the Appellant had first written a letter applying for permission to amend on 3 February 2000.

	(iv)	that the Employment Tribunal were wrong to tie the Appellant to wrong advice given by his solicitors who drafted the second complaint.  See Hawkins v Ball and Barclays Bank Plc [1996] IRLR 258.

	(v)	that the Employment Tribunal was wrong to take into account the fact that the Appellant might have an action for negligent misstatement or breach of contract against the Respondent in the County Court, or a professional negligence action against his former solicitors, in assessing the degree of prejudice to the Appellant by refusing the amendment.

We shall deal with each of those submissions in turn.

	(i)	Category 2 amendment

We accept that this amendment does fall into this category, as described above.  It does not follow that in such circumstances permission will invariably be granted.  Bose and Jesuthason v Hammersmith and Fulham London Borough Council [1998] IRLR 372 (CA) are examples where such amendments were permitted.  An example of where permission was refused is to be found in Coker v Diocese of Southwark [1995] ICR 563, a decision of an Employment Tribunal chaired by Professor Roger Rideout.  However, we think it significant although not determinative, that in all those cases the Applicant had a timeous, extant claim in train.  Here, the original claim, race victimisation, had been ruled impermissible for want of jurisdiction.  That ruling is no longer challenged.  Thus in the present case the Respondent will be put to a trial it would not otherwise face if the amendment is granted.

	(ii)	we cannot accept that the Employment Tribunal fell into error by failing to ask the Appellant, who was represented by Counsel, for an explanation for the delay in this case.  That is not their duty.  See Mansah v East Hertfordshire NHS Trust [1998] IRLR 531 (CA).

	(iii)	there is no evidence that the letter dated 3 February ever reached the Employment Tribunal; we accept Miss Maclaren’s assurance, she having appeared below, that no such letter was referred to before Mr Pettigrew’s Employment Tribunal nor a further letter from the Appellant shown to us dated 7 February 2000 at the hearing.

	(iv)	in Hawkins the Employment Appeal Tribunal dismissed an appeal against the Employment Tribunal’s decision to extend time for bringing a complaint of sex discrimination on the just and equitable principle (Sex Discrimination Act s76(1)), holding that bad advice which led the Applicant to delay making her claim was not an irrelevant factor to be taken into account in her favour in exercising the Employment Tribunal’s undoubtedly broad discretion.  See Hutchison v Westward Television Ltd [1977] IRLR 629.

We do not understand that decision to prevent an Employment Tribunal taking into account their findings of fact, first that the Appellant was aware of his rights under both the Sex Discrimination Act and Race Relations Act and secondly that he was advised by solicitors at the time when the second complaint was presented in weighing the factor of delay when deciding whether or not to grant an amendment.

	(v)	it is a relevant, although not conclusive factor that the Appellant had other avenues of redress which he could pursue, just as was the case on the facts in Selkent v Moore [1996] IRLR 661, where Mummery J gave valuable guidance on the approach to be taken by Tribunals in considering applications for permission to amend.

14.	In short, we are unable to discern any error of law in the Employment Tribunal’s approach.  The decision to refuse permission to amend in this case fell within the proper exercise of their undoubtedly wide discretion.  Accordingly this appeal is dismissed.