Appeal No.	 EAT/346/97 	               & EAT/1191/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 January 1998
Judgment delivered on 21 April 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR D J HODGKINS CB
MS B SWITZER

MR B AYOBIOJO	APPELLANT

LONDON BOROUGH OF LEWISHAM	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	

	JUDGE PETER CLARK:	On 12th January 1998 these two appeals by Mr Ayobiojo came before us at an ex parte preliminary hearing held to determine whether they raised any arguable point or points of law which ought to proceed to a full hearing before the Employment Appeal Tribunal. In view of the substantial quantity of documentary material placed before us and the detailed Notices of Appeal and skeleton arguments submitted by the appellant, we reserved our decision in order to fully consider that material, having heard oral submissions by the appellant.

The Appeals
In the appeal no. 1191/97 the appellant appeals against a reserved decision with full reasons of an Industrial Tribunal sitting at London (South) (Chairman: Mr C A Carstairs; sitting with Mr D P Prior and Mrs R C Macer) [“the full tribunal”] promulgated on 24th June 1997, following hearings held on 28th-30th May; 24th, 25th and 31st October 1996 and 7th January 1997, and Chambers meetings held on 9th January and 14th-15th May 1997, dismissing his complaints of unlawful racial discrimination and victimisation brought against the respondent, the London Borough of Lewisham [“Lewisham”], contained in two consolidated Originating Applications, the first being Case no: 38882/94 presented on 28th June 1994; the second being Case No: 52017/95 presented on 7th September 1995. We shall call this the substantive appeal.

	In appeal no. 346/97 the appellant appeals against a decision of Mr Carstairs (the Chairman) sitting alone at London (South) on 7th January 1997, dismissing his complaint of victimisation following racial discrimination against Lewisham contained in an Originating Application, Case No: 36160/96 presented on 10th June 1996 on the grounds that it was out of time and it would not be just and equitable to extend time. Extended reasons for that decision are dated 20th January 1997. We shall call this the limitation appeal.

The Full Tribunal Decision
In these consolidated applications the appellant, who is black, alleged unlawful discrimination and victimisation by Lewisham in respect of a total of 14 job applications which he made unsuccessfully, for various posts advertised externally.

	The tribunal found that the complaints in respect of jobs numbered 1, 2, 4, 5, 6, 7 and 8 were out of time, but nevertheless went on to consider the merits of all complaints, those included.

	They directed themselves in accordance with the relevant statutory provisions and the guidance given by Neill LJ in King v Great Britain China Centre [1992] ICR 516. They looked to the respondent for an explanation in the case of each job application as to why the appellant was unsuccessful. They accepted those explanations for the reasons which they gave and concluded that the appellant had not been unlawfully discriminated against on grounds of his race.

	As to the claim of victimisation, the appellant contended that he had been victimised contrary to s.2 of the Race Relations Act 1976 by reason of the fact that he had:

(a)	brought discrimination proceedings against Lewisham in 1994; and/or
(b)	made a relevant complaint against his former employer, the London Borough of Lambeth [“Lambeth”] in 1989 or 1990.

The tribunal rejected that contention on the facts. It found that he was not victimised by reason of his earlier complaint against Lewisham, nor was there any collusion between Lewisham and Lambeth.

	In these circumstances all complaints were dismissed.

	It is not necessary for the purposes of this judgment to repeat the tribunal’s findings in relation to each of the 14 job applications, save for job 3.

Job 3
This related to a vacancy of Neighbourhood Manager, Pepys, grade PO6. The post was advertised in the Guardian Newspaper on 25th March 1994. The appellant saw the advertisement and completed a job application form which was received by Lewisham on 12th April 1994. The closing date was 15th April. The appellant was not short-listed for the post and a rejection letter was sent to him dated 2nd June 1994.

	The reason put forward by Lewisham for rejecting this application was that the appellant had failed to respond to a supplementary question. 

	Before the full tribunal the appellant asserted that he had done so, and relied upon a document (R1/82-3 in the bundle before the tribunal) which he claimed he had produced in April 1994. The tribunal rejected that evidence, finding that the document contained information which would not have been available until December 1994.

	In the event the Pepys post was not filled from candidates who responded to the March 1994 advertisement.

	In a letter dated 1st July 1994 from John Wright, Area Manager South Division, to the appellant he informed him that the Pepys vacancy was subsequently re-advertised.

	At the full tribunal hearing held on 28th May 1996 the appellant learned, from evidence given on that occasion by Mr Sawbridge, who had during 1994 been Assistant Director (North) for Lewisham, that the Pepys post had been advertised internally in June 1994 and had been filled by an internal candidate.

	As a result of hearing that evidence he presented an Originating Application Case no: 36160/96 on 10th June 1996, complaining of victimisation on the grounds that the Pepys post had been re-advertised internally, without his knowledge, giving him no opportunity to re-apply.

	In their Notice of Appearance dated 8th August 1996 Lewisham admitted that the post had been advertised internally only. Subsequently, Lewisham applied successfully to amend that Notice of Appearance to add that on the second occasion the post had also been advertised in the publication ‘Inside Housing’ on 10th June 1994, a publication circulated within the Local Authority Housing community and not seen by the appellant.

The Chairman’s decision
On 13th November 1996 the limitation issue in Case No: 36160/96 came on for a preliminary hearing before a different Chairman, Mr Lamb. He, it appears, suggested that the point be dealt with by the full tribunal, which was then adjourned part-heard.

	In the event, Mr Carstairs, having sat with Mr Prior and Mrs Macer on 7th January 1997, and having concluded the evidence in the substantive case, then sat alone to hear the preliminary issue in Case No: 36160/96.

	He set out his factual findings in relation to the change of position by Lewisham in the extended reasons which he gave, and accepted that Mr Sawbridge’s recollection on 28th May 1996, that the Pepys post had been re-advertised internally only was mistaken, and that subsequent investigation by the respondent’s solicitor, Mr Jankowski, had revealed the ‘Inside Housing’ advertisement.

	He also found that the advertisement method used on the latter occasion offended Lewisham’s own Recruitment Manual, which provided for at least two external advertisements for each post.

	Dealing with the limitation point, the Chairman noted that the complaint presented in June 1996 related to an incident in June 1994, and was accordingly presented outside the ordinary three month time limit. He therefore turned to the escape clause under s.68(6) of the 1976 Act.

	He accepted that the appellant had learned of the re-advertisement of the Pepys post only at the tribunal hearing held on 28th May 1996. Normally, in those circumstances he would have concluded that it was right to extend time. However, for two reasons he decided not to do so. The first was that the appellant had been put on notice by Mr Wright’s letter of 1st July 1994 that the post had been re-advertised, yet he took no further steps to pursue the matter; secondly, the passage of time since June 1994 meant that potential witnesses for Lewisham now had no recollection as to the reasons for re-advertising the Pepys post in the way that it was re-advertised.

	Accordingly, in the exercise of his discretion, the Chairman dismissed the complaint.

The substantive appeal
In his Notice of Appeal, running to 68 pages, the appellant takes broadly four points:

(1)	Breaches of the Industrial Tribunal Rules of Procedure
(2)	Perversity
(3)	Bias on the part of the Industrial Tribunal
(4)	Failure to apply the provisions of the 1976 Act.

	We have considered the detailed grounds of appeal, supplemented by the appellant’s skeleton argument and his affidavit sworn on 9th September 1997, to which the Chairman responded by letter to the Employment Appeal Tribunal dated 6th January 1998.

	We do not propose to set out each and every contention here. It is sufficient for us to say that having considered all the matters raised by the appellant in this appeal we are satisfied that there are no grounds for concluding that the full tribunal exhibited the appearance of bias, failed to apply the relevant statutory provisions or reached a conclusion which was perverse in any of senses referred to by Mummery J in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440, 443.

	However, there is one issue raised with which we should deal specifically. It concerns the submission that Mrs Macer ought not to have sat on the full tribunal.

Mrs Macer
In separate proceedings, Case No: 10434/94 the appellant brought a complaint of racial discrimination against London & Quadrant Housing Trust [“Quadrant”]. It seems that in an appeal against an Industrial Tribunal order made in that case and heard before a division of the Employment Appeal Tribunal presided over by Mummery J on 13th October 1995, the matter was remitted to the Industrial Tribunal for rehearing. On leaving the building on that occasion the appellant, so an Industrial Tribunal later found, threatened Counsel for Quadrant, Mrs Goldman. Subsequently the matter returned to the London (South) Industrial Tribunal pursuant to the Employment Appeal Tribunal’s direction. That tribunal, consisting of Mr D N Milton (Chairman), Mrs Macer and Mrs S West, sitting on 15th-16th April 1996, struck out the Originating Application under Rule 13(2)(e) of the Industrial Tribunal Rules of Procedure, on the grounds of his behaviour at the Employment Appeal Tribunal building on 13th October 1995. Against that decision, promulgated on 13th May 1996, the appellant appealed to the Employment Appeal Tribunal (EAT/701/96).

	The Quadrant appeal came on before a division presided over by Morison J on 25th July 1997. The appeal was allowed and the matter remitted for a fresh hearing before a differently constituted Industrial Tribunal.

	In the present appeal the appellant points out that on 17th April 1996 he wrote to the London (South) Industrial Tribunal asking that Mr Milton and his colleagues (including Mrs Macer) should not sit on his upcoming applications, including the instant case, listed for hearing on 28th May 1996. Nevertheless, Mrs Macer did sit on the present case.

	He now seeks to rely upon the fact that in July 1997 this Employment Appeal Tribunal in the Quadrant case ordered a rehearing before a differently constituted Industrial Tribunal, that is, excluding Mrs Macer, for the proposition that Mrs Macer ought not to have sat on the present case.

	We think that there are a number of answers to the point. The first is that the appellant did not object to Mrs Macer sitting when the full tribunal convened on 28th May 1996 - see the Chairman’s letter to the Employment Appeal Tribunal dated 6th January 1998. Secondly, there is no specific allegation of any appearance of bias by Mrs Macer during the hearings in this case. Indeed, in that letter the Chairman observes that at a costs hearing shortly before the date of his letter, as the parties were leaving the tribunal room, the appellant said that his criticism of Mrs Macer was not personal “... he was being opportunistic”. Thirdly, apart from the fact that Morison J delivered his judgment in the Quadrant case after the full tribunal had completed its hearings and reached its decision in the present case, we do not understand the effect of that judgment to be that Mrs Macer, and the other members of the Milton tribunal, were disqualified from hearing any case in which the appellant was involved, but only the Quadrant case.

	In these circumstances we reject the appellant’s procedural objection to Mrs Macer having sat on the present case.

The limitation appeal
Having considered the 23 page Notice of Appeal, skeleton argument and affidavit sworn by the appellant on 20th May 1997, to which the Chairman responded by letter to the Employment Appeal Tribunal dated 11th June 1997, we reject those parts of the appeal which raise issues of fact and general allegations of bias against the Chairman, in order to concentrate on two issues:

(1)	ought the Chairman to have sat alone to hear the preliminary issue as to limitation, instead of consolidating this matter with the two earlier consolidated applications and hearing it with the lay members sitting on the full tribunal? and

(2)	did he reach a permissible conclusion at law in refusing to extend time?

	As to the first issue we are satisfied that a Chairman sitting alone has power to hear a preliminary issue as to limitation under Rule 6(1) of the Industrial Tribunal Rules of Procedure. See Tsangacos v Amalgamated Chemicals Ltd [1997] IRLR 4.

	The next question is whether the Chairman ought to have sat with the lay members who had been with him to hear the substantive case on 7th January 1997, as had been suggested by Mr Lamb on 13th November 1996. It does not appear that Mr Lamb made a formal order to that effect; even had he done so it would have been an interlocutory, not a final order, and hence not binding on Mr Carstairs. In our view it was within Mr Carstairs’ discretion to hear the preliminary issue alone, relating as it did to a separate matter to that alleged in relation to “Job 3” in the main proceedings before the full tribunal.

	Finally, did he reach a permissible conclusion? We have in mind the wide discretion granted to the Industrial Tribunals when deciding what is just and equitable under s.68(6) of the 1976 Act and the equivalent provision under s.76(5) of the Sex Discrimination Act 1975. see Hutchison v Westward Television Ltd [1977] ICR 279. In our judgment the Chairman weighed the relevant factors on both sides and decided that the balance favoured a refusal to extend time. We cannot say that such a judgment was perverse or contained a patent self-misdirection in law.

Conclusion
It follows that, having given careful consideration to the issues raised in these two appeals, we have come to the conclusion that there is no arguable point of law which ought to go forward to a full appeal hearing.

	In these circumstances, both appeals are dismissed.