Appeal No.	 EAT/1132/95

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 April 1997

Before
THE HONOURABLE MR JUSTICE LINDSAY
MR J R CROSBY
MR N D WILLIS

MR T DIVINE-BORTEY	APPELLANT

LONDON BOROUGH OF BRENT	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR R ALLEN QC
Ms E Cleary
UNISON
1 Mabledon Place
London
WC1H  9AJ	
For the Respondents	MR A ILES
(Of Counsel)
The Borough Solicitor
London Borough of Brent
Room 407
Chesterfield House
9 Park Lane
Wembley
HA9  7RW	

			
		MR JUSTICE LINDSAY:   We have before us an appeal by Mr T Divine-Bortey against the judgment of the Industrial Tribunal (held at London (North), the Chairman, Mrs Prevezer, sitting alone) which was promulgated on 5 September 1995.  It was a decision in proceedings in which Mr Divine-Bortey was the Applicant and the Respondent was the London Borough of Brent.  On that hearing, which was on the 31 August 1995, Mr Divine-Bortey was represented by a member of his union, UNISON, and the London Borough of Brent was represented by Counsel.

	The matter can only be conveniently understood after some recital of the procedural history of the case.  The position is that earlier there had been a complaint by Mr Divine-Bortey and three others; there was an “IT1”, the originating complaint application, made by Mr Divine-Bortey which, so far as his personal “IT1” was concerned, complained of unfair selection for redundancy.  At that point when the “IT1” was made, Mr Divine-Bortey seems not to have had any legal representation and his “IT1” took a rather informal shape and was expanded by one page of typescript that expanded on what he claimed were the reasons for his unfair selection for redundancy.  He said:
 “I was unfairly selected for redundancy.  The Respondents did not follow their own ring-fencing and redeployment procedures.  My redundancy was not genuine as there are vacant posts available to which I should have been appointed.”

	There is no hint in his “IT1” of anything that touches upon issues of race.  The Respondent, Brent, replied to that with a form “IT3” in conventional shape and it admitted that the Applicant had indeed been dismissed.  In answer to the question what was the reason for the dismissal, the answer was simply redundancy.

	The Notice of Appearance on behalf of Brent set out at some length the procedures properly to be adopted, so far as Brent was concerned, in selecting persons for redundancy.  There is no hint in Brent’s “IT3” or in its more expanded additions to its Notice of Appearance of any difficulty encountered in the employment of Mr Divine-Bortey on grounds of race, or, indeed, in relation, for example, to his intelligibility in spoken English or in any other language which he might usefully be called upon to deploy during the course of his job.  

	Then the “IT1” and Brent’s “IT3” accordingly came on for hearing.  They began to be heard on 29 November 1994.  Four cases, only one of which had Mr Divine-Bortey as Applicant, were linked together and went up for hearing together.  They came before an Industrial Tribunal under the Chairmanship of Mr G Flint.  At the hearing Mr Divine-Bortey and the three other applicants were represented by Mr N Custance, a trade union official: Brent had Counsel.  No doubt (although we have not heard, of course, specific evidence on this point) Mr Custance had experience of unfair dismissal and perhaps also experience of racial discrimination but it might be wrong to expect from him any experience of the law relating to estoppel per rem judicatem, which is a subject which, as will later emerge, is what is now before us.

	It would hardly be consistent with the broad purposes of the Industrial Tribunal to arrive at a situation in which the technical legal expertise to be expected of representatives was such that, without that representation being by lawyers having a general experience of the law, their clients would be at some serious material disadvantage.  That, however, at this stage, is no more than general comment.

	On 30 November 1994, the second day of the hearing, it came out for the first time, and this is how Mr Divine-Bortey describes it, that there had been some element of racial discrimination connected with his dismissal.  It could be that it came out on the first day, the 29th, but, one way or another, it was on the 29th or 30th November, either the first or the second day of the hearing.  It does not matter for present purposes which of those was the date.  How it came about is that whilst she was giving evidence on behalf of her employers, Brent, Miss Elliott gave evidence that Mr Divine-Bortey had a pronounced African accent.  The point of her reference seems to have been related to his effectiveness to communicate in spoken English; his intelligibility in spoken English.  It was, it seems, put forward as a reason why he was not given an alternative job but was, rather, selected for redundancy.  

	What Mr Divine-Bortey says in his second “IT1” (which we have not yet come to) is that at the Tribunal hearing on 14 December [he gets the date wrong] :
“... my employer admitted that one of the reasons for my dismissal was that I have an ‘African’ accent.”

	One needs to emphasise that this point came out for the first time in the way we have described.  

	It was not, it seems, said that the “African accent” was the only or the principal reason for his being selected for redundancy, although it is hard to be sure quite what the evidence on the point was.  Certainly there is no suggestion that Mr Divine-Bortey had any reason to know, ahead of its coming out in the way that I have mentioned, of the exercise of this form of discrimination, as he claimed it to be.  There had not previously been any issued proceedings for racial discrimination but the point was developed to some extent at the hearing as a racial point.  Here we are helped because the Counsel who was then appearing for Brent, Miss Beverley Lang, has put in a sheet of paper dated 25 August 1995 and signed by her, which explained what had happened.  The note reads as follows:
“I appeared on behalf of the London Borough of Brent at the hearing of Mr Divine-Bortey’s claim for compensation for unfair dismissal.
I can confirm that in the course of her evidence in chief Ms Lois Elliot referred to Mr Divine-Bortey’s African accent and she was cross-examined by Mr Custance about this.  The thrust of his cross-examination was that Ms Elliot was displaying prejudice against Mr Divine-Bortey on the grounds of his racial origin.  The point was again raised by Mr Custance when Mr Divine-Bortey gave his evidence in chief.
It was my view that Mr Custance was seeking to use Ms Elliott’s remark as evidence of unfairness in the way in which Mr Divine-Bortey’s job application had been dealt with by the Respondent, namely, that there had been prejudice against him on the grounds of his race.”

	No adjournment was sought and no application to amend the relief claimed in Mr Divine-Bortey’s “IT1” was made.  There was, it seems, so far as we can judge, no ruling or indication by the Industrial Tribunal itself, that the “Race card”, so to speak, if it was to be played at all, had to be clearly played and that there had to be some written form of complaint to initiate it.  Nor, on the other hand, was it said that issues of race were irrelevant.  It seems that the matter came up in the way that Miss Lang’s note indicates, as part of the flow of evidence.  The extent to which it was developed is hard for us to judge because the Chairman’s Notes have not been required or produced, and in any event, they might merely have indicated that it was touched on in a way that Miss Lang, by her note, indicates.  There is no hint of any objection having been raised by Brent that, if race was to be relied on by Mr Divine-Bortey, then it should be clearly specified as a separate type of complaint, or, alternatively, that without his making that separate sort of complaint, the matter should be ruled as irrelevant or abandoned.

	Anyhow, that was the way the matter arose and hearings continued on 1 and 16 December 1994 and on 31 January 1995.  On 1 March 1995 the Industrial Tribunal promulgated its decision.  Its decision was, and it was unanimous, that, as to Mr Divine-Bortey, he was not unfairly dismissed.  Indeed, although there was a separate finding in relation to a Ms Sarla Unia, of the four claimants, three failed.  They were all held not to have been unfairly dismissed.  What the Tribunal said in paragraph 3 of their Extended Reasons was this:
“As to the reason for dismissal we were satisfied from the evidence which we heard that the Respondents had decided to reorganise the structure of the department in which the Applicants worked and that this reorganisation had led to a consequent reduction in the number of persons who were required to carry out the tasks of the section.  Consequently we are satisfied that the Respondents established to us that the reason for the Applicants’ dismissal was either redundancy or was in the terms of the amendment to the Notice of Appearance which they had made some other substantial reason, namely the necessity for the employer to reconsider the structure of this department in the interests of business efficiency.  Consequently we find that the reason for the dismissals was established.”

It will be noted that business efficiency was in play.  

	The matter continued into their paragraph 4:
“As to the question of the general fairness of the dismissals the case proceeded for some time on the basis that the contents of the new job as compared with the old matched only between 30% and 70%.”... 

So “general fairness” was considered.  The Industrial Tribunal indicates in the course of its Extended Reasons that there had been an adjournment to enable a particular point to be dealt with.  So it would be fair to assume that there was a willingness on the part of this Industrial Tribunal to afford the parties time for the proper presentation of the developing case, had requests for that been made.  They held that the detailed procedures of the Council, which we are not immediately concerned with for the moment, had been followed.  They say this:
“7.  ... We find that the selection process was fairly and properly carried out and that the Respondents cannot be criticised in any way for the way in which they carried out their procedures.  Similarly we find that the Respondents went to great efforts to try to find the displaced Applicants alternative employment in other parts of the Respondents’ organisation and were unable to do so.  We do not find any unfairness in the way in which they carried out this task.  Consequently our view is that the claims of [all claimants other than Ms Unia] must fail for the reasons set out in this decision.”

They then turned to the separate reasoning that applied to one of the particular cases, Ms Unia’s.

	The dismissal, as it was to judge from Mr Divine-Bortey’s “IT1”, had been on 31 January 1993.  If there was racial discrimination and if the racial discrimination consisted of his dismissal, then that racial discrimination was suffered on 31 January 1993.  The promulgation of the decision of the Industrial Tribunal was on 1 March 1995.  Presumably it would have come to Mr Divine-Bortey’s notice only very shortly after that.  

	On 15 March 1995 the Office of the Industrial Tribunal received by fax a new “IT1” from Mr Divine-Bortey.  It claims unlawful racial discrimination.  Again, at the point at which the “IT1” was lodged, Mr Divine-Bortey had no legal or, indeed, at that stage, any representative.  It says, as I have already indicated, that he first learned of the act of discrimination (he there says) on 30 November 1994.  At this point, it is convenient to break aside to look briefly at one part of the racial discrimination legislation.  The Race Relations Act 1976 Section 68 provides:
Period within which proceedings to be brought
(1)	An industrial tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done.”

However, one needs to look also at sub-section 6:
“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.”

	Our understanding is that the Employment Appeals Tribunal has no original, no non- appellate jurisdiction on the subject of the effective extension of time.  There has, as yet, been no determination by an Industrial Tribunal as to whether it would be just and equitable to allow a complaint out of time, namely allow Mr Divine-Bortey’s second “IT1” in relation to an event of late January 1993.  

	If it was plain and obvious, to use a familiar phrase, that Mr Divine-Bortey could not get leave out of time in the light of all material surrounding circumstances, had they all been looked at, then the current appeal before us would be pointless.  There would be no function served by allowing the matter to go forward.  But we do not see the matter as being such a case and, indeed, have no material from which we could come to any such conclusion.  Sub-section 6 of Section 68 specifically refers to all the circumstances of the case and invokes the broad considerations of what is just and what is equitable.  The facts that will be necessary to come to some conclusion within sub-section 6 are not in any decision of any Industrial Tribunal that has yet formed or expressed a view on the matter, and we do not see it as appropriate for us to seek to exercise an original jurisdiction which we do not believe we have and adequate material for the exercise of which is not before us.

	Reverting to the chief subject before us, Mr Divine-Bortey’s second “IT1”, the one basing itself on unlawful racial discrimination, came up for hearing on 31 August 1995 before Mrs E M Prevezer sitting alone.  As I mentioned earlier, the Applicant had a union representative representing him and Counsel appeared for Brent.  The Extended Reasons are only five paragraphs long.  The first one makes reference to his dismissal and his first claim.  It would be convenient to read the rest of the Extended Reasons.
“2	The Applicant alleges that he was dismissed because of his race in that he was not offered another post on redundancy because of his African accent.  This was only known to him when it came out in evidence on 16 December 1994.”

That date seems to be a wrong date.  It is the date adopted by Mr Divine-Bortey in his own second IT1.  It was in fact the last day of the hearing of the Industrial Tribunal the first time round.
“3	Mr Barber, for the Applicant, admitted that the act of discrimination complained of was the dismissal and that the Applicant’s representative at the earlier hearing had submitted that the dismissal was unfair because he had not been offered alternative employment because of his accent.
4	It is not referred to in the decision but Mr Barber conceded that it was put to the Tribunal and therefore I assume that it was taken into account in considering whether the dismissal was fair.
5	I find therefore that as the act complained of is the dismissal and the facts relied on have already been considered by a Tribunal, this matter is ‘res judicata’ and this Tribunal is estopped from considering the matter further.  The case is dismissed.”

The decision itself is simply this:
“The decision of the Tribunal is that this case is dismissed as this Tribunal has no jurisdiction to hear this claim.” 

	On 16 October 1995 Mr Divine-Bortey lodged a Notice of Appeal and the principal (in fact, I think, it is the only ground) raises the question of law of whether or not the Appellant was estopped from bringing his claim of race discrimination on the grounds that it was res judicata by reason of the earlier decision of the Industrial Tribunal sent to the parties on 1 March 1995.  That is the point that is now before us by way of appeal.

	The background to the law on estoppel has been touched on by both Mr Allen QC for Mr Divine-Bortey and Mr Iles for the London Borough of Brent.  On the basic law that is in play, there has not been, as we understand it, any real difference between them.  It is a difference rather in the application of the law.  The law, so far as we need to state it, seems to us as follows and, in so stating it, we have been assisted by the clear passages on the subject in Chitty on Contracts General Principles 27th edition paragraph 25-010 and thereafter.  We have had Harvey cited to us and in some minor respects the emphasis is slightly different but not to any degree that causes us to need to comment upon it.  

	First of all, estoppel per rem judicatem has two branches - cause of action estoppel and issue estoppel.  Cause of action estoppel arises when the cause of action in the later proceedings is identical to the cause of action in the earlier proceedings.  Here it seems to us that we are not concerned with cause of action estoppel.  Unfair dismissal on the one hand and racial discrimination on the other, it seems to us, are not merely very different creatures created by very different statutes but are properly described as different causes of action insofar as they are causes of action at all.  

	Very different remedies, for example, are found when one compares what is available for racial discrimination and what is available for unfair dismissal.  We do not pretend to set out a catalogue of all the differences between them.  One can see, for example, that at Section 56 of the Race Relations Act 1976 the sub-sections of that section set out various forms of relief that are available in racial complaints.  It is to be noted that at Section 57(4) there is specific provision for compensation being capable of including compensation for injury to feelings.  Many of the provisions of Section 56 in relation to remedies for race relations discrimination have no mirror in unfair dismissal.  Section 62 of the Race Relations Act has a special provision, for example, for persistent discrimination, which has no echo in the unfair dismissal field.  In unfair dismissal, again differences can be seen.  There is, for example, an upper age limit, and in the provisions of the Employment Protection (Consolidation) Act 1978, although now overtaken by later similar legislation, the remedies for unfair dismissal are specified.  One can have compensation, reinstatement, or re-engagement.  There are, in other words, remedies different to those available for racial discrimination.  Sections 68, 69, 71, 72, 73 and 74 of the 1978 Act, with a specific limit in Section 75, are all indications of matters which are different, in relation to unfair dismissal to any otherwise comparable provision in racial discrimination.

	We are not saying that one looks only at the difference between the available remedies to establish whether there is difference in causes of action but it is one of the factors and one can see at a glance that they are very different.  It seems to us that this case cannot be one of cause of action estoppel.  If, therefore, there is to be any form of estoppel per rem judicatem, it can only be issue estoppel.  What, then, is required of an issue estoppel?  First of all, there needs to be a final and conclusive judgment on the merits.  That would seem to be satisfied.  Secondly, that judgment has to be by a court of competent jurisdiction.  Again, that would seem to be satisfied.  Both unfair dismissal and racial discrimination are specifically assigned to the Industrial Tribunal.  Then there has to be identity between the parties to the two suits that are being compared.  Again, that is available here, although with the slight twist that the unfair dismissal case was united with the cases of three other parties as it went forward.  It was, nonetheless, a case that included a separate proceeding between Mr Divine-Bortey and Brent.  Then there has to be an identity in the subject matter of the two proceedings.  Here it is worth reading a passage from the area of Chitty earlier identified, at paragraph 25-011, page 1187:
“... Thirdly there must be identity of subject matter in the two proceedings [and amongst the body of authorities cited is a note] ... in the case of issue estoppel the decision on the issue must have been essential for the decision of the court and not merely collateral.”  [There is then a reference to further cases.]

	It must be remembered that the first Industrial Tribunal makes no mention whatsoever of racial discrimination, either to find it proven or not proven or to indicate whether any weight whatsoever was given to its having been mentioned in the course of the case.  However, if it could be said that the decision by that first Industrial Tribunal that Mr Divine-Bortey’s dismissal was not unfair necessarily involved a decision that the dismissal involved no racial discrimination, one could fairly say that there was here the required identity of subject matter, even though racial discrimination had not been mentioned by the Tribunal in its decision.

	There is no doubt that issue estoppel can be deployed in Industrial Tribunal cases.  We have had cited to us Munir v Jang [1989] ICR 1 and also had passages shown to us from Harvey Vol.4 page T323 et seq.  However, there is no indication of whether Miss Elliott was believed or disbelieved or relied upon or discarded in the reasoning of the earlier Industrial Tribunal.  There is no hint, discernible from the reasoning of the first Industrial Tribunal, as to what went through their minds on the subject of racial discrimination.  

	We therefore need to assess the question of identity of subject matter on an unfortunately rather speculative basis.  On that basis, we see it as being at least a possibility, we say nothing beyond that, but at least a possibility having regard to the facts that the original “IT1” made no mention of racial discrimination, that the “IT3” made no mention of racial discrimination and that the Race Relations Act, as far as we can find, was not read to the Tribunal, that the Industrial Tribunal, on that first occasion, regarded the question of Mr Divine-Bortey’s accent not as a point that concerned race but simply concerned the effectiveness of his communication in spoken English or, in other words, his intelligibility.  One can see that there are many jobs in which a man’s intelligibility or a woman’s intelligibility in spoken English is a material feature of his suitability for a particular job.  It could be (and we say not that it was but only that it could be) that that disadvantage of his which had been put in evidence and which could be said to have blighted Mr Divine-Bortey, coupled with the use of Brent’s procedures, sufficiently justified a view that the dismissal was not unfair, independent of reference to his race.  It could be, in other words, that what the Industrial Tribunal and, before it, the Employer, had regard to, was business efficiency, in the way that I have earlier drawn attention to, rather than race.  We do not, of course, say that they did follow that route.  We have no Chairman’s Notes of Evidence.  Even if we had, they would only have disclosed the evidence which is not in issue, rather than the process of reasoning.  

	The process of an Industrial Tribunal’s reasoning should be discernible from its Extended Reasons.  It is because the Extended Reasons here say nothing on the subject that we find ourselves in this difficulty.  	If the Tribunal did consider the matter in the way we have described above, with regard, in other words, not to the “Africanness” of the accent but merely to its unintelligibility, it could be, given that the specific questions under the Race Relations Act had not been invoked in any formal application, that the Tribunal went to its decision without coming to any decision at all under the full provisions of Section 1 of the Race Relations Act.  Section 1 reads as follows:
“(1)   A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if—
(a)	on racial grounds he treats that other less favourably than he treats or would treat other persons; or
(b)	he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but —
(i)	which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and
......
(iii)	 which is to the detriment of that other because he cannot comply with it.”

	It could be that without the Race Relations Act being specifically invoked in any application before it and without them being put expressly to the first Industrial Tribunal, that the Tribunal would not have seen that to require of persons of African descent the same degree of effectiveness in spoken English as of others, could be racial discrimination of an indirect kind within Section 1(1)(b)(i), unless specifically justified under (ii) which reads:
“which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied;”

It is not suggested that any evidence or argument was directed to the complicated issues (and Mr Allen has drawn attention to how complicated are the issues) that arise under Section 1(1)(b) of that Act.  

	It seems to us that on the unusual facts of this case the decision that the dismissal was not unfair did not necessarily preclude there being racial discrimination under Section 1 of the Race Relations Act.  Put another way, it was here no inescapable part of the decision that a dismissal was not unfair that it included a finding that the Race Relations Act was not breached.  We derive some comfort from the case Clarke v Eley (IMI) Kynoch Ltd [1983] ICR 165 page 176 F-H.  What it comes to is that in our judgment there is not here the necessary identity of subject matter between the two proceedings such as of itself leads to issue estoppel and, if Mrs Prevezer, as Chairman of the Tribunal now under appeal, was of the contrary view that would in our judgment have been an error of law.  Of course, the silence of the first Tribunal on the point might indicate that the Industrial Tribunal really made no decision on the racial point at all.  If that was the case, then there would hardly be a previous decision which could blight the chances of there being fresh proceedings.  There would then not only have been no certain decision (which some of the cases indicate as a requirement) but, in truth, no decision at all.

	It may be, as an alternative approach, and this is touched on in Chitty at paragraph 25-012, that some element of discretion is open to a court, even where the terms of issue estoppel are otherwise satisfied.  What Chitty says is this:
“... So far as cause of action estoppel is concerned the rule appears to be absolute.  A party cannot re-litigate the same cause of action even if new facts or law have subsequently come to light.  But there may be circumstances in issue estoppel where the justice of allowing the matter to be re-litigated outweighs the hardship to the successful party in the first action in having to re-litigate the point.“ [Cases are then cited in support of that proposition.]

	The examples given in Chitty of the exercise of that particular discretion, are quite unlike the case before us.  But, if there is a discretion, there is no reason to think it is not a general discretion.  If Mrs Prevezer did not turn to a consideration of that discretion that would have been an error of law.  If there is a discretion, and if it is necessary for us to exercise it, then we turn to do so.  We bear in mind that at that first hearing Mr Divine-Bortey did not have a legal representative who could fairly be expected to have any command of the whole range of the technical law but only a union representative who, however experienced in unfair dismissal and race relations, could not fairly be expected to command knowledge of the rather technical doctrine of estoppel per rem judicatem.  

	We have in mind that it is not the policy in this area to encourage a technical approach to Industrial Tribunal litigation.  We have in mind that there is no hint that Mr Divine-Bortey knew of even the possibility of racial discrimination before oral evidence was given in the course of the case by Miss Elliott.  There is no suggestion, for example, that there had been an earlier witness statement to that effect or that it was known that such evidence was going to be given.  The silence of the Industrial Tribunal on the point is something we have in mind as being hardly a powerful indicator of the force the point seemed to have at the time, it having arisen in the way that it did, so to speak “out of the blue”.  We have in mind also that it seems understandable on Mr Divine-Bortey’s behalf to have waited to see whether or not his unfair dismissal claim succeeded, especially in relation to financial compensation, before launching racial discrimination proceedings, which, in part at least, would have covered compensation for the same experience.

	Thus, if it is necessary for us to turn to a discretion and if, indeed, there is a discretion of the kind that Chitty suggests, then, whilst we recognise the powerful public interest in matters not being re-opened and in their being an end to litigation, we would, in the exercise of our discretion, allow the racial discrimination case to proceed.  But issue estoppel, as Mr Iles for Brent has usefully pointed out, has a wider sense in which it can be understood.  He has referred to the case Yat Tung Co v Dao Heng Bank [1975] AC581 in the Privy Council, and in particular to page 590.  At page 590 there is a reference to the wider sense and Henderson v Henderson [1843] 3 Hare 100 is identified as the locus classicus for that aspect of the doctrine.  What Vice-Chancellor Wigram said there is set out at page 590 in Yat Tung and so far as relevant says this:
“... where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.  The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

At that same page, there is also reference to the more modern case Greenhalgh v Mallard [1947] 2 AE 255 at page 257 where Lord Justice Somervell said:
“... res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.”

	Mr Iles takes the powerful point that in the course of the first hearing evidence came out of a form of racial discrimination, as it seemed to be.  Mr Divine-Bortey chose to take advantage of that evidence.  He chose to argue a case there and then of direct racial discrimination.  If he chose not (and presumably he did choose not) to raise a case of indirect racial discrimination, that was his choice.  He made his bed, he must be taken to have lain on it.  It was not for the Tribunal or anyone else other than he and his own advisers to suggest that he should also have made out a case in indirect racial discrimination.  It would seem that he had chosen not to take that course.  Indirect racial discrimination was a subject that might have been brought forward at that first hearing but it was left and thus cannot be raised thereafter.

	This is a powerful argument but it seems to us that the matter can properly be dealt with by asking whether there are indeed special circumstances of the kind identified by the Vice-Chancellor in Henderson v Henderson and whether that shorter test of Lord Justice Somervell in Greenhalgh v Mallard is satisfied.  It is not enough merely to say that racial discrimination was part of the subject of the litigation or that indirect, as well as direct racial discrimination, could have been raised.  The question has to be whether indirect racial discrimination was “so clearly part of the subject matter” of the earlier process and “so clearly could have been raised therein” that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of it.  That raises the question of “special circumstances”.

	Unusual factors do here come into play.  First of all, racial discrimination, direct or indirect, was no part of the subject matter of the litigation from its beginning.  As we have indicated, neither the IT1 nor the IT3 made any mention of it.  It was not until Miss Elliott’s evidence that anything came out on the subject at all.  It came out without warning to and without having previously been suspected by Mr Divine-Bortey.  It was a matter that came out in the course of the evidence of a witness on the other side.  It is all very well saying that an adjournment could have been sought by Mr Divine-Bortey, but, as Mr Allen points out, he was not the only litigant then before the Tribunal and it would have been a strong course, on a ground that seemingly affected only him, for there to have been an adjournment which would be likely to have affected all four cases together.  It is also unusual, as it seems to us, and is a special circumstance, that nothing whatsoever seems to have been said or done on the subject, either by the lawyers then appearing for Brent or by the Tribunal itself.  As we mentioned earlier, there seems to have been no indication by the Chairman once Miss Elliott’s evidence had come out, that race was either relevant or irrelevant to a claim for unfair dismissal.  There was no indication from the Chairman whether the reasoning of the Tribunal would or would not include mention of a subject that had come out in that way, and, as it transpired, there was no mention of it whatsoever in the judgment.  No-one said that, if racial discrimination was to be relied upon, then it needed properly to be stated, to be particularised and to be made as the subject of a proper formal complaint.  We think also that a “special circumstance” one that would not be applicable either in the Privy Council or before Vice-Chancellor Wigram, is that here we are dealing with proceedings in an Industrial Tribunal where it is not only reasonable but to be encouraged that the cases can conveniently be conducted by persons without general knowledge of the law.  We see that this is a case where, having regard to such circumstances, and notwithstanding that it might be or is the case that racial discrimination formed part of the subject matter, and not withstanding also that it could have been raised, we do not feel either was so clearly the case that the third element, that it would be an abuse of the process to allow a new proceeding to be started in respect of such discrimination, is made good.  If Mrs Prevezer failed to have such regard to the special circumstances that was an error in law.

	There is, of course, in a case such as this, some fear that the case might be taken as a precedent and that it will be seen as opening doors to unseemly repeated litigation in other cases: a typical “flood-gates” argument.  We would, in that regard, point to the special circumstances to which we have already drawn attention.  But beyond that, we would hope that Chairmen of Tribunals are alive to the ability that they have, (it might even be an obligation that they have) to draw attention to factors as they come into play.  It is a familiar feature of many types of proceedings, and in particular of criminal proceedings, that the judge or tribunal, in the course of evidence, warns a witness that before he answers this question or that, he should pause to reflect, because it might involve him in civil or criminal penalties or disadvantages, and that the subject has therefore to be cautiously approached.  Similarly, it seems to us, that where something such as a fresh claim, as it seems, for racial discrimination comes out of the blue in the course of an unfair dismissal case, it would be very helpful were the chairmen to indicate that there are difficulties and they need to be thought about with great care; especially will that be the case where, as in Mr Divine-Bortey’s case, a party is without legal representation.  It would be right for a Tribunal to draw attention to what they see as the possible consequences of the subject matter being pursued.  They could say that if racial discrimination was to be relied upon at all, then it had to be separately raised and particularised and with all formalities complied with.  Conversely, they could say that in the circumstances of the case it would be appropriate that the racial discrimination aspect should be investigated as part of unfair dismissal and that it could be relevant to unfair dismissal, or would not be taken to be relevant to unfair dismissal.  There are a whole range of possibilities of comment that would be open to the chairmen involved, but merely to let the matter go ahead without any comment at all, is a dangerous and unhelpful course, which we would encourage as one not to be repeated.  At the very least the chairman could give a warning that there might be adverse consequences if racial discrimination issues were to be deployed in the course of an unfair dismissal case, adverse consequences in that separate subsequent claims for racial discrimination might be put at some disadvantage.

	Comment from the Chairman as the points emerge is plainly a useful tool to avoid repetition of the kind of problem that has arisen here.  Mr Allen draws our attention to Rule 9 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations that speaks of the role of the Tribunal itself in the course of hearing.

	We have indicated that we do not see this as a matter of abuse of process.  Abuse of process must ultimately be a matter in which regard is paid to the justice of the case.  The justice of the case, in our view here, is that in the particular circumstances to which we have drawn attention Mr Divine-Bortey should not be stopped from proceeding with his new and later racial discrimination case.  It will be remembered that in Yat Tung itself, supra at page 590, the Privy Council indicates that the shutting out of a subject of litigation is a power which no court should exercise but after a scrupulous examination of all the circumstances.  Doing our best to make that examination of the limited range of information that we have, we see it as right to let the racial discrimination case proceed.

	Accordingly we undo the decision of the Chairman (sitting alone) as being in error of law and remit the matter to a fresh tribunal (by which we do not mean to exclude a panel which has Mrs Prevezer as a Chairperson, because her involvement has been limited only to the technical point with which we have been dealing) but a fresh tribunal in the sense of its not being of the original constitution of Mr Flint, Mr Buckley or Mr James.  Accordingly we remit the matter to such a fresh tribunal.