Appeal No.	 EAT/1042/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 July 1997

Before
HIS HONOUR JUDGE J HULL QC
MR J C SHRIGLEY
MR G H WRIGHT MBE

MR D C D'SOUZA	APPELLANT

LONDON BOROUGH OF LAMBETH	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON	

	JUDGE J HULL QC:     This is an appeal which is in our list under our Practice Direction, brought by Mr Donald Claudius D’Souza.  The Respondents to the appeal are the London Borough of Lambeth, who of course are not represented here today.

	Mr D’Souza was employed by the London Borough of Lambeth as an Information Systems Group Manager.  He is a gentleman of mature years and would be by now approaching retirement age, at any rate if he was still employed by them.  He was first employed on 3 March 1986 and in 1987 he brought the first of a number of cases which he has brought against the London Borough.  

	In 1990, on 16 January, he was dismissed and he then launched proceedings in relation to his dismissal.  That was on 10 April 1990.  In 1990 also, he says, he became aware of grounds for believing that he could bring a claim in respect of sex discrimination which, of course, is unlawful against a man, as it is against a woman.  He was then assisted by well known Solicitors, Lawford and Company, who frequently act in industrial relations cases and who generally enjoy an excellent reputation in this field.  He was advised not to proceed, apparently.  At any rate, he did not proceed with any sex discrimination claim at that stage. 

	In 1995, there was the last hearing of one of the Applicant’s seven Industrial Tribunal claims which he brought against the London Borough of Lambeth.  Then, on 23 February 1996, he served on the Respondents a sex discrimination questionnaire; that is copied at page 13 of the additional bundle of documents which have been sent to us.  At page 16 there are questions which are incorporated in the questionnaire.  Mr D’Souza writes:

“1.  Please provide the following information in respect of staff employed by you on 16.1.90 (or the nearest date thereto for which the figures are readily available):
a.  total number of female employees at that date
b.  total number of male employees at that date
c.  total number of employees at that date [presumably (a) and (b) added together might equal (c) but one does not know].
2.  Have any female members of your staff brought proceedings before an Industrial Tribunal under the Race Relations Act 1976?  If the answer is yes, please provide a copy of the relevant Tribunal decision in respect of each and every such proceeding.”

	We understand that the London Borough employs thousands of people and, no doubt, there would be a large number of Industrial Tribunal decisions.

“3.  Have any female members of your staff been summarily dismissed. ... If the answer is yes, please provide a copy of the Committee Report and any other documents covering each and every such dismissal.  Please also provide a copy of the Committee Report in respect of my own dismissal.
4.  Have any female members of your staff been notified of disciplinary proceedings to be taken against them?  If the answer is yes, please provide the following details in respect of each and every such notification.”

	And then a number of details - all about it, to put it shortly.  

“5.  Have any female members of your staff raised grievances under the Council’s Grievance procedure?  If the answer is yes, please provide the following in respect of each and every such grievance:
a.  copy of the documents containing details of the grievance 
b.  copies of any decisions reached at each stage of the grievance by those hearing the grievance, together with dates of the hearings.”

	And then there are other requests.

	Quite clearly a number of those matters will be confidential and, so far as one can say, simply reading that document, it is a document which, in any court of law, would be likely to be described as “vexatious”, of course after proper enquiries and so forth.  It is quite clearly a monstrously exacting document to serve, relating to a large number of matters which are likely to be irrelevant and confidential matters too, but there it is.

	Then he issued, in the present proceedings, being I suppose the eighth of his complaints against the London Borough of Lambeth, his IT1, that is at page 17 of our papers and in that he complained of sex discrimination, this being the matter about which he was apparently advised in 1990.

	The Respondents put in their IT3, that is the Answer form, that is at page 19.  They said, fairly shortly:

“... the Tribunal has no jurisdiction to hear the Applicant’s claim for sex discrimination ... it has been submitted outside the three month time limit imposed for bringing such claims.  It is not clear ... what act is being complained of as amounting to sex discrimination but it is clear that this must have taken place outside the three month time limit.  ”

	They deny discrimination and then they ask that the

“complaint be struck out on the grounds that it is being conducted frivolously, within the meaning of Rule 13 (2) (d) of the Industrial Tribunals Rules of Procedure and there is no reasonable prospect of the Applicant being successful.”

	These matters were all looked into by the Industrial Tribunal, which sat at London (South) on 26 June under the chairmanship of Mrs Gleeson. That is at page 14 of our bundle and that Tribunal gave its decision on the preliminary matter of limitation on 13 August 1996, when it published it.

	The Tribunal, as I say, was concerned with the question of limitation and they say:

“It is the unanimous decision of the Tribunal that the applicant’s claim under the Sex Discrimination Act 1975 was not issued within the time limited by s. 77(1) and that in all the circumstances the Tribunal does not find it just and equitable for this claim to be considered out of time.”

	They say, after setting out the facts, at paragraph (1):

“... he has made 7 separate Industrial Tribunal claims, and has obtained, inter alia findings of unfair dismissal, race discrimination, victimisation, reinstatement, and failed to win an additional award in respect of non-reinstatement.  He has won five cases and lost two.  An inference was drawn from the Respondent’s failure to reply to a Race Discrimination Questionnaire served in 1990, which we have not seen, and which included gender-based questions.

	They said:

“3.  Mr D’Souza was aware of the potential claim for sex discrimination when he left in 1990, and further information came to him in an article in the Daily Telegraph for Saturday October 24 1992, from which he learned that as he had suspected, a Miss Lewis was apparently a direct comparator.  Despite this knowledge, and the availability to the Applicant of legal advice from Messrs Lawfords, the question of sex discrimination was not raised in any of the cases issued by him, the issue dates of which ranged from 1987 to 1990, and which were heard over the period 1987 to 1995.
4.  No sex discrimination questionnaire was served until 23 February 1996.  The Applicant claims that he was advised that he should wait for better evidence, but no attempt was made under the procedure specified by the Act to obtain that evidence.  Any defect in the advice given to the Applicant is not a matter for this Tribunal.”

	Then they refer to Section 77 of the Sex Discrimination Act:

“(1)  An industrial tribunal shall not consider a complaint under section 63 [i.e. relating to Part II of the Act, Discrimination in the Employment Field] unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done.
(5)  A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”

	The Tribunal continue:

“6.  The Applicant has made reference to the effect of European law on the national time limits.  The Tribunal accepts that where because of a flaw in national legislation the Applicant is unaware of a claim for longer than three months after the event, time must be held to run from the decision of the European Court of Justice which makes it clear that the national law is incorrect.  That is not the case here.
7.  This applicant was aware of his sex discrimination claim as long ago as 1990, and has told us that he asked advice from Messrs Lawfords and was advised not to pursue it.  He was aware of further circumstances from 24 October 1992, and again he did not pursue it.  The Tribunal does not find that European law gives the Applicant a better remedy in these circumstances than the national law.
8.  We have considered carefully all of the documents, submissions and case law to which the Applicant and the Respondent’s solicitor have referred us.  We bear in mind that the present originating application contains no particulars whatsoever of the alleged discrimination, and that the Respondent asked for such particulars on 29 March 1996, and those particulars have not been supplied by the Applicant.
9.  The Respondent therefore came to today’s hearing without any indication of the case which they were required to meet.  Although this application is brought by the Applicant in person, in the light of his particular history, he is clearly sufficiently experienced to know that such particulars are necessary.
10.  The Tribunal does not find that in all the circumstances of the case, it is just and equitable to consider the claim as presented in the originating application.  Further, for the avoidance of doubt, we find that to issue an application effectively in blank six years after the event is unreasonable, and had it been necessary we would have been prepared to find that the application should be struck out.
11.  It is accordingly the unanimous decision of the Tribunal that the applicant’s claim under the Sex Discrimination Act 1975 was not issued within the time limited by s. 77(1) and that in all the circumstances the Tribunal does not find it just and equitable for this claim to be considered out of time.  This claim is dismissed.”

	Now there is an appeal to us, and Mr D’Souza has clearly studied the law, as carefully as he can, though as he says he is a layman.  He has put before us a decision in the case of Miss Lewis.  In 1986 the Tribunal sat to hear that matter and after devoting, it seems, seven days to hearing the case, held that the Applicant, Miss Lewis, was not unfairly discriminated against by the Respondents.  The Applicant has told us, among many other things, that he has received information about that case which leads him to think, in some way not explained, that he, himself, has been the subject of sex discrimination.  He said that the Tribunal was not entitled to reach the decision it did.  He has said that, if his application could not be heard as a new application, it should be added to one of the applications in one of the many cases which have already been disposed of.  He has made a large number of averments of law.  He has referred to the Lambeth Council as being an emanation of a State.  He has said that the time limit should be disapplied and so on.  He has referred to a great many cases and statutory provisions and he has told us about a number of cases which we ought to look at.

	The question for us is a short and simple one.  Are we satisfied, or not, that there are any fairly arguable grounds on which the appeal against the decision of the Industrial Tribunal, presided over by Mrs Gleeson, can fairly proceed?  Is it fairly arguable?  Are there any arguable errors of law? - because, of course, we are concerned only with errors of law and not with errors of fact.  We have all carefully considered that in the light of everything which has been said to us on paper by Mr D’Souza, who has said that he did not wish to add anything to what he has written.

	The question under the Act, as to whether it would be just and equitable to hear the claim, was one for the Tribunal and not for us.  It involved a very large element of discretion.  

	We have been quite unable to find any fairly arguable point of law in criticism of this decision, on which this appeal could proceed.  Indeed, we would go further; having looked at this decision carefully and looked at such of the facts as we know, it appears to us that it would have been an extraordinary decision and perhaps appealable, had the decision been the other way.  It is not up to us to say that, of course, we are not judges of fact.  We did not hear what was said to the Tribunal.  We certainly have not enquired into the facts in any way.  All we have to do is to decide if there is any appealable ground of law.  We are all satisfied that there is not.

	Since this appeal is in our list under our Practice Direction as a preliminary hearing, we have to say therefore, at this stage, that it falls to be dismissed and those are the reasons of us all.