& Ors
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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Moore v. University of Greenwich & Ors [2000] UKEAT 745_00_2306 (23 June 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/745_00_2306.html Cite as: [2000] UKEAT 745_00_2306, [2000] UKEAT 745__2306 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
MS N AMIN
MISS D WHITTINGHAM
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
INTERLOCUTORY
RACE DISCRIMINATION
For the Appellant | THE APPELLANT IS IN PERSON. |
For the Respondent | MISS SHALDON (Of Counsel) Instructed by: Messrs Langley & Co Solicitors Sun Court 66 Cornhill London EC3V 3NB |
MR JUSTICE LINDSAY (PRESIDENT)
"Victimisation/Discrimination in the selection of employment."
To that extent it was rather less than to specific. Box 11 "please give details of your complaint" it says: "Please see separate sheet." And then there are some two and ½ pages of typed script annexed there to by which Mr Moore more fully stated his complaint. Paragraph 1 says:
1. "The Applicant is of Afro- Caribbean origin and man of colour.
And paragraphs 3 & 4 say:
3. "The Applicant's claim/application was brought in relation to discrimination and or victimisation, in that the first and second Respondents acted contrary to sections 1, 2 (1) and 4 (1) of the Race Relations Act 1976 (" the Act") and the Applicant's claim is for discrimination and/or victimisation contrary to the said sections 1, 2 (1) and 4 (1) of the Act, by refusing or omitting to offer the Applicant an interview for the post of Lecturer (Junior)."
4. "The Applicant alleges unlawful discrimination because he received less favourable treatment than a white person and/or was victimised by reason that he had made previous complaints against the First Respondents and its employees alleging matters amounting to contravention of the said Act."
7.1 "The University rejects the claim that Mr Moore has been subject to a discrimination on the grounds of his race, or that he has been victimised by reason that he made previous complaints against the University alleging contravention of the Race Relations Act."
Plainly the University had understood the nature of the complaint, as indeed was inevitable, as being a complaint of racial discrimination. On 19 May, after the gap since 31 March, Mr Moore wrote a letter to the Employment Tribunal at Croydon and we will not need to read out the whole of the letter but under the heading 'Application for Ordering of Particulars' he says:
"Would you please make an order requiring the Respondents to answer the attached questions in every particular. The answers to the questions are necessary for a full and proper consideration of the Applicant's race discrimination claim."
Under the heading 'Application to Amend' the letters says:
"The Applicant wishes to amend his IT1 to particularised/include a claim for sex discrimination and relies on the EAT's guidance on this matter given in Selkent Bus Co Ltd v Moore [1996] ICR 836."
And a little later that paragraph refers to a case called Quarcoopome.
"In other words a claim for race or sex discrimination within time, includes or covers a claim for either of the other under the RRA 1976 or SDA 1975 respectively."
"The Applicant therefore respectively asks the Tribunal for leave to amend to include all particulars on sex discrimination. The Applicant only became aware of the alleged sex discrimination after receiving the Respondents replies to further and better particulars"
which of course was as long before as 31 March. The second request for further and better particulars." attached, sets out 66 questions, which we will have to return to generally and to consider some of them in more detail. On 26 May the Tribunal answered the letter and request for particulars of 19 May saying as follows:
"There is insufficient time to consider these various applications for orders before the hearing.
The Chairman shall consider these matters at the outset of the Full Merits Hearing, and give such directions as are necessary for the fair and expeditious disposal of this case."
The hearing, it should be said, has been for some time fixed for 27 June, next Tuesday. It is important to notice that this letter of 26 May does not decline any application or refuse any application; but simply says that the matters will be considered at the outset of the Full Merits Hearing. In other words the applications are to be adjourned rather than having been ruled upon on 26 May.
"The Applicant requests that the Tribunal issue a subpoena against the following witness, all of whom are employees of the 1st Respondent's Law School and or, were part of the shortlisting panel, ordering them to produce document at the hearing on 27 June 2000. The witnesses are:
1) Ms Kim Everett
2) Mr Mark Polowski
3) Mr Edward Philips
4) Professor David Chambers
5) Professor Bensted"
The application to amend was returned to because this letter of 5 June says this:
"In the Quarcoopome case this Tribunal concluded than an originating application which makes a claim for race discrimination (and therefore by analogy sex discrimination) incorporate any claim underlining that for direct or indirect race (or sex) discrimination and victimisation."
And a little later:
"In other words a claim for race or sex discrimination within time, includes or covers a claim for either of the other under the RRA 1976 or SDA 1975 respectively."
Once again the Applicant therefore respectfully asks the Tribunal for leave to amend the claim to include all particular sex discrimination."
It is to be noted that there is no verbatim specification of precisely what amendment is sought to be made and no affidavit to explain why it had not been made earlier.
"The Chairman is not prepared to grant the order that you seek concerning replies to your enquiries – your questions relate to matters of evidence and can be dealt with at the hearing."
So far as concerns witness orders it says this:
"As to the request for witness orders your request is refused. You have not stated what evidence the witnesses can give, neither do you confirm that you requested them to attend voluntarily, also you will be aware that it is not possible to make the witness order in respect of a witness who you wish to cross examine."
So far as the amendments are concerned the letter says this:
"Your application to amend is refused – your understanding of the judgment in the Quarcoopone case does not coincide with the Chairman."
At the foot of the 1st page of the letter, it says:
"In the meantime the Chairman expects an agreed bundle to be prepared and that witness statements for all witnesses including the Applicant and named Respondent should be prepared and exchanged at least five days before the hearing."
"All completed assessment scoring sheets, completed by each member of the shortlisting panel in respect of the assessment of the Applicant and of all candidates who were successful in the shortlisting."
And the letter to Greenwich has the usual provisions dealing with the case, as it would be, if that was not obeyed.
"To order the Respondents to reply to particulars of questionnaire and request for further and better particulars and to allow amendments to the Appellant's IT1."
On the face of things the question of witness orders was not going to be appealed. Attached to that Notice of Appeal is a typescript of a number of pages which specify Mr Moore's grounds of appeal and we have today heard Mr Moore (who is, himself a Lawyer) in person and we have heard Mr Sheldon for the University of Greenwich.
No new cause of action
"The proposed amendment did not contain any new cause of action. The claim in the originating application was for "unfair dismissal." The applicant invoked the statutory right conferred on him by section 54 of the Employment Protection (Consolidation) Act 1978. He did so within the time prescribed by section 67 of the Act. It was therefore a valid application. The decision of this appeal tribunal in Dodd v British Telecommunications Plc. [1988] I.C.R. 116 was authority for the proposition that it was not fatal to the validity of an originating application to fail to specify which Act was invoked. Thus, in a discrimination case, an effective complaint, which would stop time running, could be made without specifying whether the discrimination complained of was on the ground of race or sex. The nature of the applicant's complaint was sufficiently identified for the purposes of identifying a cause of action. Any deficiency in the details of the complaint could be cured by the provision of particulars of a later date. The more recent case of Quarcoopome v Stock Shop Holding Ltd [1995] I.R.L.R. 353 illustrated the same point in relation to the complaints of direct and indirect discrimination. A complaint could be validly made to an industrial tribunal of race discrimination, without identifying initially the different ways in which it was alleged that the discrimination had occurred. An application to add a compliant of indirect race discrimination was not therefore out of time. The initial complaint of race discrimination covered any case in which discrimination on that ground was alleged, whether direct or indirect."
Whether the Selkent Bus case truly can be taken to be authority for the proposition that would seem to be supported by the first 3 or 4 lines on page 842 is debateable. There the particular words most of all selected by Mr Moore are these:
"Thus, in a discrimination case, an effective complaint, which would stop time running, could be made without specifying whether the discrimination complained of was on the ground of race or sex."
It may fall to another case to decide whether that goes too far but what it certainly does not say is that where a complaint has in some detail specified that it is of racial discrimination, it can still be taken to be a claim for sex discrimination. We have already read the relevant passages from the IT1 that made it quite plain that, although Box 1 and Box 11 do not themselves make the position clear, the attached papers make it quite clear that what was being claimed was and was only a case for racial discrimination and racial victimisation, claims certainly unrelated to sex discrimination.
52. "Does the University accept the Steven Lawrence Inquiry Report's definition of "institutional racism"? If not why not?"
"Yes, I admit I was racially prejudiced"
or anything on those lines and very many of the cases come to the conclusions that they reach by drawing inferences from surrounding circumstances. Surrounding circumstances, therefore, become relevant and admissible and important to a degree which is not common in other types of jurisdiction and so a relatively liberal response is not inappropriate. Also of course, we have here a person who is in person as a litigant, even though he has legal skills beyond those of the man in the street. Again his position points to a degree of liberality in our response.
? We require the University to prepare and to put in writing the answers to those particular questions 8, 10, 11, 14, 37, second sentence of 53, and No.46. If it so elects, the University may serve all or any of its written answers before the hearing on Tuesday and, indeed, unless it intends to object to answering those questions at the hearing, it should serve its answers as fast as is practicable. Fax obviously is a method that needs to be explored with Mr Moore to see if that is the quickest way of getting the answers through.
? If the University elects not to give answers to all or any of those questions, then it must take its prepared written answers with it to the hearing on Tuesday 27 June. At the hearing on 27 June, the University can, if it so chooses, seek then to argue that all or any of the 6 as to which it has not served answers are such that answers need not properly be given.
? If it does argue in that way, then the Chairman and the whole Tribunal below will be able to deal with the matter much more fully than we can because they will be seised of the whole of the case. They will be able to rule quite untrammelled by our tentative and provisional view that those particular ones were not inappropriate to be ordered. It will be entirely for them to choose whether those are to be ordered or not.
"The Chairman shall consider these matters at the outset of the Full Merits Hearing, and given such directions as are necessary for the fair and expeditious disposal of this case."
This is not a refusal of an application but merely an adjournment of it. Accordingly, in relation to disclosure of documents, there is nothing against which Mr Moore can appeal saved for that adjournment and, given that Tuesday is so close and that the Tribunal itself will be seised of the whole matter, it seems to us entirely appropriate to leave the disclosure of documents to be, as the Chairman suggested, left with to be dealt with at the outset of the full merits hearing. There is, in fact, no decision in front of us in relation to disclosure other than that which is merely an adjournment and it is a misunderstanding of the response of the Tribunal to treat that as if it was a refusal.