Gavin v Commission for Racial Equality, now the Equality & Human Rights Commission & Ors UKEATPA/1385/09/JOJ

Appeal against decision by the Tribunal refusing to take to trial claims by the claimant because they had been presented out of time and they had been compromised by a compromise agreement. Application to postpone the EAT hearing since the claimant claimed not to know about the hearing date until it was too late. Application refused and appeal dismissed.

The claimant had made decisions to compromise her very old claim, from which she subsequently wished to resile. The first respondent was the successor to the Commission for Racial Equality which was disbanded 4 years ago. The Tribunal Judge found that the claims were out of time and that there was no ground for time to be extended under either of the jurisdictions respectively for claims based on whether it was not reasonably practicable to bring claims in time and whether it was just and equitable to extend time in respect of discrimination claims. The Judge also found that it was not fair for the claimant to re-litigate matters about which all parties had turned their minds to a compromise. The claimant appealed against the refusal to hear her claims and then, when she found out the date of the appeal hearing too late to attend, attempted to claim that she had not been notified of the date of the EAT hearing and asked for it to be postponed.

The EAT rejected the application to postpone the hearing, saying that the record of email traffic clearly displayed the claimant’s knowledge that there was to be a hearing that day. The EAT also upheld the ET judgment, and concluded that the EJ’s reasons all supported the judgment that the claims should not be allowed to go further.

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Appeal No. UKEATPA/1385/09/JOJ

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 12 May 2010

Before

HIS HONOUR JUDGE McMULLEN QC (SITTING ALONE)

MS U GAVIN (APPELLANT)

COMMISSION FOR RACIAL EQUALITY, NOW THE EQUALITY AND HUMAN RIGHTS COMMISSION AND OTHERS (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**RULE 3(10) APLICATION - APPELLANT ONLY****APPEARANCES**

For the Appellant No appearance or representation by or on behalf of the Appellant.

**HIS HONOUR JUDGE McMULLEN QC**
  1. This case is about Employment Tribunal procedure in refusing to take to trial claims made by the Claimant. I will refer to the parties as the Claimant and the Respondent.
**Introduction**
  1. It is an appeal by the Claimant in those proceedings against the Judgment of Employment Judge Dimbylow sitting alone at Birmingham over two days registered with Reasons on 24 September 2009. The Claimant was represented by a friend and lay representative; the Respondent by counsel.
  1. The issue was whether or not claims had been presented out of time, whether they had been compromised by a compromise agreement and whether there should be some form of estoppel preventing the Claimant re litigating. The Respondent's applications in respect of all those matters were upheld by the Judge. The Claimant appeals.
  1. In Haritaki v South East England Development Agency [2008] IRLR 945 I set out the approach of the EAT to questions under rule 3. HHJ Birtles gave an opinion under rule 3 in the following terms:

"The grounds of appeal are quite unspecific and disclose no reasonable grounds for bringing the appeal. Insofar as perversity is alleged there is a failure to comply with Employment Appeal Tribunal Practice Direction paragraph 2.6. Insofar as amendment is concerned the Employment Appeal Tribunal Practice Direction paragraph 2.7 – a party cannot reserve the right to amend the Notice of Appeal."

  1. The Claimant sought a hearing. The Claimant was canvassed in February 2010 as to available dates. She said she was not available until after June. She was told that the case would be listed according to the availability of the court and it was listed for today.
  1. Steps were taken by the Claimant to comply with the directions for today. She produced a skeleton argument sent by email of some ten pages. I have looked at the file and note a significant number of steps taken by the Claimant by email in correspondence, she asking variously for documents and other forms of assistance. The EAT supports ELAAS and, in accordance with its practice, received back from the Claimant an indication that she wished to have the papers sent to an ELAAS representative for the purpose of today, and that was done. Mr Stephen Heath of counsel is here and so is Ms Mabel Lynch, a representative of the Respondent to observe but, of course, take no part in the proceedings.
  1. Mr Heath's remit begins when he receives instructions from the Claimant. The Claimant was not in attendance at 10.30 am when the case was listed, nor at 11.15 am when it was called on. Attempts were made to contact the Claimant in vain. Then the Claimant contacted the Listing Officer and told her that she did not know it was for hearing today until she opened an email, but she confirmed she had had the Notice of Hearing by post.
**Postponement**
  1. I infer the Claimant seeks to postpone today's hearing. I do not consider it is in accordance with the overriding objective to allow this case to be stood out. The record of email traffic clearly displays the Claimant's knowledge that there was to be a hearing today. The latest email was sent by the Claimant on 28 April 2010 and was followed by a letter on 28 April 2010. None of these in terms specifies the date of hearing but I am satisfied that the hearing date was known because the Claimant received the hard copy of it and she has taken steps to satisfy her obligation to provide the court with a skeleton argument and the bundle.
  1. This is a very old case. The substance of the appeal is that the Claimant had made decisions to compromise her claim from which she subsequently wished to resile. As I will explain when I deal with the substance, there is real prejudice to the Respondents here in these very old claims being revived. The first Respondent is the successor to the Commission for Racial Equality disbanded four years ago.
  1. No satisfactory explanation has been given to me as to why this intelligent law graduate, highly experienced in Employment Tribunal proceedings, should overlook the date of her hearing. All of the written materials point to her complying with the obligations and preparing for today. Mr Heath is here prepared to assist her of his own time, as she sought. No material has been given to me apart from what is said to be a mistake in not opening an email about which there is no specific date causing the Claimant to be confused. I also bear in mind that the Judgment appealed is about the failure of the Claimant to observe time limits.
  1. I reject the application to postpone and, therefore, will deal with the issue of substance.
**The application**
  1. I have read most carefully the skeleton argument focused upon the Judgment. The way in which the case is formulated reveals a multi stranded attack by the Respondents on the Claimant's claims. In essence the Judge found that the claims were out of time and that there was no ground for time to be extended under either of the jurisdictions respectively for claims based on whether it was not reasonably practicable to bring the claim in time, such as unfair dismissal, and whether it was just and equitable to extend time in respect of discrimination claims.
  1. The Judge's findings about the Claimant's situation seem to me to be unimpeachable. He first dismissed the contention that it was not reasonably practicable for the Claimant to lodge her claims in time in paragraph 41 and I see no error of law.
  1. As to the discrimination claims, the reasons in paragraphs 42 to 46 are a sensitive balancing of the circumstances which would point for or against the exercise of discretion. The claims were substantially out of time. The Respondent is highly prejudiced by the staleness of the allegations. The Claimant is highly intelligent with a legal background and experience. She has had trade union representation and independent legal advice. She knew the facts throughout as to the basis of claims and cannot rely upon cases which she cites, for example, my own Judgment in London Borough of Southwark v Afolabi [2003] IRLR 220, approved by the Court of Appeal, since, as the Judge found, the information available to her was known to provide a cause of complaint well within time.
  1. The Judge also paid attention to the fact that she had entered into an agreement which compromised all of the outstanding claims and it indicated that the parties intended so to do. The Judge found that it was not fair for the Claimant to re litigate matters about which all parties had turned their minds to a compromise.
  1. The current proceedings involve some 41 Respondents to the different claims. In my judgment it was not necessary for the Judge to go further than he did, but I am grateful to him for so doing because on appeal it sometimes arises that if we were to overturn his judgment on the main point, his auxiliary findings would be of assistance. However, it was permissible for the Judge to dismiss the claims as out of time and not to exercise discretion. As I read his Reasons in respect of the other strands, not strictly necessary as a result of his primary finding, they all support the judgment that the claims should not be allowed to go further.
  1. In those circumstances I see no error of law and I will refuse the application. No further action will be taken. The Claimant can have 14 days from the sending to her of the transcript in which to make any application for permission to appeal to me or directly to the Court of Appeal.

Published: 17/12/2010 15:45

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