Appeal No. EAT/1326/95

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 October 1996
Judgment delivered on 27 February 1997

Before
THE HONOURABLE MRS JUSTICE SMITH
MR P A L PARKER CBE
MR G H WRIGHT MBE

MR F EDUSEI	APPELLANT

(1) MR M LEDWITH	RESPONDENTS
(2) NYNEX CABLECOMS LTD

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	Mr S MUNASINGHE
(Of Counsel)

Mr M Javaid
Commission for Racial Equality
Elliot House
10-12 Allington Street
London
SW1E  5EH	
For the Respondents	MISS J EADY
(Of Counsel)
Messrs Charles Russell
Solicitors
8-10 New Fetter Lane
London
EC4A  1RS	

		MRS JUSTICE SMITH:   This is an appeal from the decision of an Industrial Tribunal Chairman sitting alone in Manchester on 27th October 1995 in which he dismissed the appellant's complaint that the respondents had discriminated against him on the ground of his race.  He held that the claim had been presented outside the three month time limit imposed by Section 68(1) of the Race Relations Act 1976 and considered it neither just nor equitable that time should be extended under the discretionary provision of Section 68 (5).

	The appellant's claim, brought under Section 4(1)(a) of the Race Relations Act was that the respondents had discriminated against him in the arrangements made for the purposes of determining who should be selected for employment with them.  The first respondent provides cable television and telephone links.  In 1994 the company was expanding and wished to increase its sales force.  In August 1994 it advertised for sales advisers.  The appellant applied.  About two weeks later he received a letter thanking him for attending an interview but saying that his application had not been successful.  The letter was signed by Mr Ledwith the second respondent.  This letter had been sent by mistake as the appellant had not had an interview.  He wrote to Mr Ledwith pointing out the error.  Mr Ledwith replied offering an apology and saying that if a vacancy arose which suited the appellant's immediate requirements he would not hesitate to contact him to arrange an interview.  The appellant treated this as an undertaking that the first respondent would not advertise for or take on more sales staff without interviewing him.    

	On 2nd March 1995, the first respondent again advertised for sales staff.  Those interested were invited to attend an open day to be held on 4th March.  When the appellant became aware of this advertisement on 8th March he considered that the respondents were in breach of their undertaking.  He contended that Mr Ledwith had omitted to call him for an interview because of his `accent, foreign name and ethnic origin'.  

	The appellant sought advice from the Commission for Racial Equality (CRE) who, by letter dated 3rd April, advised him that the time limit for presenting an application to the Industrial Tribunal was three months from the act of discrimination complained of.  That meant, they advised him, that he must present his application by 7th June 1995.  They advised that it was his responsibility to submit the appropriate form.  

	On 16th May a questionnaire was sent to the respondents on the appellant's behalf.  On 16th June the appellant presented his originating application which alleged that the act complained of took place on 8th March 1995.  The respondents' Notice of Appearance contended that the complaint had been presented out of time.  It also denied racial discrimination.

	A preliminary hearing was convened under Rule 6 of Schedule 1 to The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993.  The Chairman sat alone.  Evidence was called on both sides.  The only factual dispute was whether the date of the act complained of was 2nd March, as the respondents contended, or 8th March, as the appellant contended.  At no time did the appellant suggest that the act complained of occurred later than 8th March 1995.  Nor did he suggest that the discrimination was a continuing act lasting beyond the 8th  March.  As the chairman observed in his decision, it mattered not whether the date of the act complained of was 2nd March or 8th March.  In either case the application had been presented out of time. 

	He then considered whether it would be just and equitable to extend time.  The appellant blamed his advisers for delay in drafting his questionnaire.  He also sought to blame the respondents for their delay in answering.  The Chairman noted the advice the appellant had received and said that he had the resources necessary to bring a claim.  He refused to extend time.

	Thereafter the appellant sought a review.  He wrote a long letter and submitted further documents.  The Chairman considered all the material put before him but refused the request.  It must be noted that the appellant did not even then suggest that the date of the act complained of was any later than 8th March.

	In this appeal, Mr Munasinghe for the appellant sought to argue that the Chairman had erred in finding that the complaint had been lodged out of time.  He submitted that the Chairman should have found that the act complained of occurred much later than 8th March because the decision not to call the appellant in for interview could not have finally been taken until the selection process following the March advertisement had been completed.  If that point had been taken below, either at the hearing or in the application for a review, it might have had some merit.  But the point was never raised.  The 8th March was the appellant's own contention.  He cannot now seek to advance a different case and have 'a second bite of the cherry'.

	The same must be said of Mr Munasinghe's alternative argument, that the failure to call the appellant for interview was a continuing act of discrimination which extended for some time after 8th March.  This has not been raised before and is now too late.  

	Mr Munasinghe also contended that because the appellant had been unrepresented at the hearing, a burden lay upon the Chairman to investigate all the possible bases upon which the appellant's claim might be advanced.  We reject that submission.  The appellant had received advice from the CRE.  He himself is an intelligent man, the holder of an MSc degree.  He understood his claim and was content to advance it on the basis that the act complained of occurred on 8th March. Although Judges and tribunals should always be prepared to assist a litigant in person to present his case, they are not expected to cast around looking for some better way in which the case might possibly be put.  Also, the litigant in person cannot claim any special privilege to abandon the contentions he advanced on the first hearing and advance a different case on appeal.  There must be finality in litigation.  We reject all the appellant's pleaded grounds of appeal.   

	In a skeleton argument served shortly before the hearing of this appeal, the respondent's Counsel, Miss Eady, acting in accordance with her duty to the Court, raised a point of jurisdiction against her clients' own interests.  She drew attention to the recent decision of the Employment Appeal Tribunal in Mobbs v. Nuclear Electric  [1996] IRLR 536.  It was there held that an industrial tribunal chairman sitting alone had no jurisdiction to hear and determine a preliminary issue under Rule 6 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, if, in order to reach a decision, he had to hear oral evidence and decide contentious issues of fact.     
	If the decision in Mobbs be correct, the Chairman in the instant case would appear not to have had jurisdiction to determine the preliminary issue in this case.  Accordingly, we granted the appellant leave to amend his Notice of Appeal and to argue this point of jurisdiction.  Mr Munasinghe submitted that Mobbs was correctly decided. 

		Mrs Mobbs presented complaints of unfair dismissal and unlawful discrimination on the grounds of sex.  Compensation for unfair dismissal is available to employees, but not to persons employed under contracts for services.  As the respondent denied that Mrs Mobbs was their employee, an issue arose as to her entitlement to bring proceedings for unfair dismissal.   

		An Industrial Tribunal Chairman, sitting alone, heard evidence from both parties and concluded that Mrs Mobbs was not an employee.  He dismissed her claim of unfair dismissal.  She appealed this decision on various grounds but by a late amendment contended that the Chairman had exceeded his jurisdiction in hearing evidence while sitting alone on the determination of a preliminary issue.  The EAT allowed the appeal on this ground, holding that he had exceeded his jurisdiction.  The issue of whether Mrs Mobbs was an employee was an issue relating to the entitlement of a party to bring proceedings, such as could be determined by a Chairman sitting alone.  But, on a proper construction of the Rules within Schedule 1 to The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, a Chairman may only determine such a preliminary issue `where he can properly do so on the basis of written representations and/or oral submissions'.    

		The decision turned mainly on the construction of Rules 6(1) and 6(2) of Schedule 1 of the 1993 Regulations.  Rule 6(1) as amended provides: 
“A tribunal may at any time before the hearing of an originating application, on the application of a party ..... or of its own motion, hear and determine any issue relating to the entitlement of any party to bring or contest the proceedings to which the originating application relates.”  
		
Rule 6(2) provides: 
“A tribunal shall not determine such an issue unless the Secretary has sent notice to each of the parties giving them an opportunity to submit representations in writing and to advance oral argument before the tribunal.”  
		The argument which found favour with the EAT was that Rule 6(1) which empowers a tribunal to hear and determine a preliminary issue as to jurisdiction must be read as being limited by the words of Rule 6(2) so that the tribunal would be entitled only to receive written representations and hear oral argument.  That was what the parties had been told they could do if the notice sent to them had been as envisaged by Rule 6(2).  It was common ground that pursuant to Rule 13(8), a Chairman could sit alone on a hearing and determination under Rule 6.  As practically all preliminary issues of jurisdiction require the receipt of oral evidence, Rule 6 determinations would not be available for the great majority of preliminary issues.  The EAT also accepted that the policy of the various statutes and regulations governing the activities of industrial tribunals is that contentious issues of fact, especially if determinative of the application, should be decided by a tribunal of three.  They considered that the practice which has become common for a chairman alone to determine preliminary issues, including those involving issues of fact, was contrary to that policy.

		Mr Munasinghe, for the appellant in the instant appeal, submitted that the decision in Mobbs was correct, both as a matter of construction and policy.  He accepted that the scope of Rule 6 would be very limited although he was able to give us a few examples of issues which a chairman alone would still be able to determine.  

		Miss Eady for the respondents submitted that Mobbs was wrongly decided.  First, as a matter of construction Rule 6(1) gave the tribunal the power to determine preliminary issues of jurisdiction before the hearing of the originating application.  That was a new power introduced by amendment in 1993.  Rule 6(2) did not seek to limit the material the tribunal was entitled to receive before making its decision under Rule 6; rather it imposed a condition precedent upon the holding of a Rule 6 hearing.  A notice must have been sent out giving the parties an opportunity to submit written representations and to advance oral argument.  She acknowledged that it would be unsatisfactory if a party came to the Rule 6 hearing without his witnesses because he had not realised he would be allowed to call oral evidence.  He would have to be granted an adjournment.  However unsatisfactory that might be, she submitted that the condition precedent in Rule 6(2) could not be read as a limitation upon the clear power given to the tribunal in Rule 6(1).    

		Miss Eady drew our attention to Rule 7, which provides: 
“(1)  A tribunal may at any time before the hearing of an originating application, on the application of a party made by notice to the Secretary or of its own motion, conduct a pre-hearing review, consisting of a consideration of-
(a) the contents of the originating application and notice of appearance;
(b) any representations in writing; and
(c) any oral argument as advanced by or on behalf of a party. 
(3)  A pre-hearing review shall not take place unless the Secretary has sent notice to the parties giving them an opportunity to submit representations in writing and to advance oral argument at the review if they so wish.”   

		Miss Eady submitted that if it were the intention to limit what could be received at a hearing under Rule 6, one would expect to find explicit words of limitation as are found in Rule 7(1). Also if Rule 7(3), which is in virtually the same form as Rule 6(2), is designed to limit what may be received by the tribunal, Rule 7(1) would be unnecessary.    

		She also submitted that it would be contrary to the policy that tribunals should be free to regulate their own procedures and to avoid formality if strict rules were to be introduced as to what form of material could be received.  Save for Rule 7, which is a special case, the Rules do not elsewhere seek to restrict the material which may be received.  Tribunals have a wide discretion to receive material in forms not usually received in a court of law.  The expression `written representations' is vague and in practice often comprises documents containing a mixture of evidence and argument.  

		Finally, she submitted that although it was true to say that the policy of statutes and regulations which had governed the activities of tribunals in the early days was as had been submitted in Mobbs, this policy had been substantially eroded by amendments to the Employment Protection (Consolidation) Act 1978 effected by the Trade Union Reform and Employment Rights Act 1993 and the 1993 Rules (supra).  

		In order to consider these submissions it is necessary to set out the framework of the legislation so far as it affects the powers of tribunals to hear and determine preliminary issues of jurisdiction and the powers of chairmen to determine issues while sitting alone.  

		It is convenient if we refer throughout to the statutory provisions as now consolidated in the Industrial Tribunals Act 1996 [`the Act'].  Industrial Tribunals are creatures of statute and have only those powers which statute has conferred.  

		Section 4 of the Act provides for the composition of a tribunal:
“(1) Subject to the following provisions of this section, proceedings before an industrial tribunal shall be heard by-
a) the person who, in accordance with regulations made under section 1(1) is the chairman, and
b) two other members, or (with the consent of the parties) one other member, selected as the other members (or member) in accordance with regulations so made.  
(2) Subject to subsection (5), the proceedings specified in subsection (3) shall be heard by the person mentioned in sub section (1)(a) alone.”   
	
There then follows in sub-section 3 a list of types of proceeding under a variety of other statutory provisions.  They may be summarised as cases in which:  

a) a party is seeking interim relief where he alleges dismissal on the ground of participation in trade union activity.  
b) a party seeks relief against the Secretary of State arising out of the insolvency of an employer.  
c) the applicant complains of unlawful deduction from his wages. 
d) the applicant claims money due under a contract of employment.
e) the parties consent to the chairman sitting alone;
f) the proceedings are a mere  formality and uncontested.     

Subsection (4) empowers the Secretary of State to amend the provisions of subsection (3).   

Subsection (5) provides that in all cases under subsection (3), the chairman has a discretion not to sit alone but to sit with members.  In exercising this discretion, he is to have regard to the following factors:

(a) whether there is a likelihood of a dispute arising on the facts which makes it desirable for the proceedings to be heard by a full tribunal of three.  

(b) whether there is a likelihood of an issue of law arising which makes it desirable for the proceedings to be heard by a chairman alone.

(c) the views of the parties;

(d) whether there are other proceedings which might be heard concurrently which are not proceedings specified in subsection (3). 
	
Section 4(6), the provisions of which were first enacted in 1993, provides: 
		
“Where (in accordance with the following provisions of this Part), the Secretary of State makes industrial tribunal procedure regulations, the regulations may provide that, in such circumstances as the regulations may specify, any act required or authorised by the regulations to be done by an industrial tribunal may be done by the person mentioned in subsection (1)(a) alone.”  
	
		Section 7(1) of the Act empowers the Secretary of State to make procedure regulations.  As we have already observed, the procedure regulations currently in force are The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, SI 1993/2687, as amended by SI 1994/536 and SI 1996/1757.

		Regulation 8 provides that the rules of procedure as set out in Schedule 1 to the Regulations, shall apply to all proceedings before a tribunal except where separate rules apply under an enactment.  From these references to the Act and Regulations, and before examining the relevant rules, it is, we think, possible to discern the policy of the legislature in permitting Chairmen of tribunals to sit alone.  It seems to us first that Parliament must have intended that as a general rule, chairmen should sit alone where the issues before them would be likely to be mainly issues of law or where expedition is necessary.  If there are likely to be contested issues of fact, that may militate against the desirability of a chairman sitting alone.  However, it is clear from the list of types of proceedings in section 4(3) of the Act, that Parliament envisaged that a chairman sitting alone would frequently have to receive oral evidence and decide disputed issues of fact.  They are all proceedings in which disputes of fact may well arise.  It is for the Chairman to decide, as a matter of discretion,  whether there is likely to be such controversy on the facts as to make it desirable that there should be a tribunal of three.    

		It is also clear from section 4(6) that Parliament must have intended that the Secretary of State should make provision through procedural rules for a Chairman alone to hear other matters besides those set out in section 4(3).  The rules relevant to the present issues are Rules 6, 8 and 13 in Schedule 1.  We have already set out the provisions of Rule 6.  Rule 8, so far as is relevant provides, that any hearing of an originating application shall be heard by a tribunal composed in accordance with section 4(1) of the Act.  That means it must be heard by a tribunal comprising a chairman and 2 lay members (or one lay member if the parties consent).      

Rule 13, so far as is relevant, provides at (1):
“Subject to the provisions of these rules, a tribunal may regulate its own procedure.” 

Rule 13 (8) provides that any act required or authorised by these rules to be done by a 

tribunal may be done by a chairman except:-
		
(a) the hearing of an originating application under rule 8;
(b) an act required or authorised to be done by rule 9 or 10 which the rule implies is to be done by the tribunal which is hearing the originating application; 
		
(c) the review of a decision under rule 11(1), and the confirmation, variation or revocation of a decision and ordering of a re-hearing under rule 11(6).

		Thus, the rules permit a chairman sitting alone to hear a wide variety of proceedings.  The only matter on which the chairman may not sit alone (save with consent or where the proceeding is a formality) is the hearing of an originating application (other than one he is permitted to hear alone under section 4 (3) of the Act) and proceedings ancillary to it.  In particular a chairman sitting alone may, under Rule 6(1), hear and determine `any issue relating to the entitlement of a party to bring or contest proceedings....'.

		As we have already observed, all the proceedings which the chairman is expressly empowered to hear alone under Section 4(3) of the Act will entail the receiving of oral evidence and the determination of contested issues of fact.  We can see no reason in principle why a chairman sitting alone should be permitted to receive oral evidence when determining a section 4(3) matter but not permitted to do so when determining a matter under the aegis of the Rule 6(1).     
	
		Thus it seems to us that the arguments successfully advanced in Mobbs run counter to the general scheme of the legislation as currently enacted, which allows a chairman sitting alone to determine a wide variety of issues including preliminary points of jurisdiction.  Unless Rule 6(2) clearly prohibits the receiving of oral evidence and the determination of issues of fact on a determination under Rule 6(1), we would not be prepared to give it such an effect.  

		We return to the arguments advanced by Miss Eady.  It seems to us that when viewed in the context of the statutory framework, her arguments are compelling.  Rule 6(1) does indeed provide the power to hear and determine preliminary jurisdictional issues.  It has been recognised for many years now that the determination of such issues will usually entail the reception of oral evidence.  Rule 6(2) does not expressly forbid the reception of oral evidence at a Rule 6(1) hearing.  It provides only a condition precedent to the holding of the hearing in that notice must be given to the parties that they may submit written representations and advance oral argument.  With respect, we think that the significance which the EAT attached to Rule 6(2) was excessive and their conclusion was, as a result, wrong.  In our view, a chairman sitting alone has jurisdiction under Rule 6(1) to hear and determine a preliminary issue, and such a hearing may entail the reception of oral evidence and the examination of documents.  We think it desirable that where a Chairman perceives that the determination of the issue in question is likely to involve a decision on highly contentious issues of fact, he should exercise his discretion to direct that the issue be tried by a tribunal of three.  But if he hears it alone, it cannot be said that he has exceeded his jurisdiction.  It follows that in the instant case, the chairman had jurisdiction to hear the issue under section 68 of the Race Relations Act and to receive oral evidence as he did.  It has not been contended that he wrongly exercised his discretion to sit alone.  The appeal also fails on the additional ground of appeal.  

		We add only this.  Now that it has been generally recognised that the determination of a preliminary issue of jurisdiction will usually entail the reception of oral evidence, it would in our view be preferable if the notice informing the parties of the date of the hearing were to advise them that they will be entitled to give and call oral evidence in addition to putting in documents, sending written representations and hearing oral argument.  Such a notice would avoid the possibility that a party might attend without his witnesses, having thought he would not be entitled to call them.     

		Since the hearing of argument in this case, another division of the EAT has considered the same point in Tsangacos v. Amalgamated Chemical s Ltd & Active Chemicals Ltd   EAT /775/96.  The parties have been given the opportunity to make representations in the light of that decision.