Appeal No.	 EAT/382/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 JANUARY 1999

Before
THE HONOURABLE MR JUSTICE CHARLES
MR J C SHRIGLEY
MR P DAWSON OBE

MISS L CHAMBERS	APPELLANT

BERENSONS	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR ANDREW GUMBITI-ZIMUTO
(of Counsel)
Commission for Racial Equality
Maybrook House (5th floor)
40 Blackfriars Street
Manchester  M3 2EG	
For the Respondent	MS INGRID SIMLER
(of Counsel)
Messrs Berensons
Solicitors
73 Gloucester Road
Kensington
London SW7 4SS	

	MR JUSTICE CHARLES:		In this appeal the Appellant is a Miss Chambers, the Respondents is a firm of solicitors, Berensons.  The appeal is against a decision made by the Industrial Tribunal contained in Extended Reasons dated 12 January 1998.  We return to the detail of that decision having given some of the background history.

	The background

	The Appellant made a complaint of unfair dismissal and race discrimination this was set out in box 1 of her application to the Industrial Tribunal.  Box 12 was completed by annexing a separate piece of paper setting out the details of the claim.  The introduction to box 12 on the form is: “Please give details of your complaint, if there is not enough space for your answer please continue on a separate sheet and attach it to this form.”  The particulars are on a separate sheet that is two pages long and has seven paragraphs A to G.  Clearly, it is a document that was prepared with some professional assistance.

	The Tribunal found, and we agree, that it does not contain any details, or particulars, of victimisation albeit that it is fair to say that some of the allegations contained therein, and in particular in paragraphs B and D thereof, could also be included in a properly detailed claim of victimisation.  The matter came before the Tribunal and was heard by them over three days on 23 and 24 October and 8 November 1996.  The Tribunal gave its Extended Reasons on 5 December 1996.  In that decision the Tribunal rejected Miss Chambers’ allegations of racial discrimination and unfair dismissal and found that the rejections of the allegations of racial discrimination were rejections of allegations of direct racial discrimination.

	Paragraph 9 of the Extended Reasons given on 5 December 1996 is in the following terms:
“9.	There remains the question of the allegation of victimisation and which was raised by Mr Gumbiti-Zimiuto in his closing submission.  He based his submission in respect of this on the fact that the Applicant had alleged racial discrimination against her and that the reaction of the Respondents to that allegation of racial discrimination had been to treat the Applicant less favourably than they would have treated other persons and had done so by reason of the matters mentioned in one of the four paragraphs (a) to (d) of sub-section (1) of section 2 of the Race Relations Act 1976.  He particularly relied on paragraph (d) and in particular on the insistence of the Respondents rather than investigating the allegation by the Applicant against Matthew Clark on treating the allegation as unsubstantiated and demanding an apology.  We discussed this point at some length and came to the conclusion that there had been insufficient evidence and insufficient argument on this point to enable us to come to a proper conclusion without hearing further from the parties.  In our view they ought to given the opportunity of either calling evidence in support of their allegations if that is what they wish to do or of arguing the point at greater length than it was argued before us in the closing submission.  We were not satisfied that any decision to which we might come on this point would be the correct one without hearing further argument and if the parties wish to further evidence.  We also wish to hear argument on whether the application does raise a claim of victimisation.  This also leaves open the question of whether if victimisation of the Applicant is established contrary to section 2 of the Act there could be a fundamental breach of contract which would entitle the Applicant to walk out and claim that her resignation by walking out was in fact a dismissal.  Accordingly the decision of the Tribunal is that the Applicant fails to establish racial discrimination contrary to section 1 of the Race Relations Act 1976, fails to establish that her dismissal was a constructive dismissal because of racial discrimination against her and fails to establish that any dismissal which may have occurred by reason of the acceptance of a repudiatory breach was unfair.  Before the Tribunal can give a decision on the question of victimisation the parties must attend and advance further argument on this point and if they so wish call evidence on it.  The parties should within 14 days of receiving this decision indicate to the Tribunal what they wish to do when the Tribunal will arrange a date for a further hearing of this matter.”

	In our judgment it is apparent from that paragraph that the Tribunal concluded that they had not heard sufficient evidence, or alternatively argument, to enable them to deal with a claim of victimisation fully and properly.  

	At the hearing Miss Chambers was represented by Mr Gumbiti-Zimuto of Counsel and Berensons by Ms Simler of  Counsel.  They have both also appeared before us.  The matter did not return for further hearing before the Tribunal until about a year later on 8 December 1997.  It is the decision made in respect of this hearing and contained in the Extended Reasons dated 12 January 1998 that is the subject of this appeal.

	In its Extended Reasons for that decision the Tribunal pointed out (a) that the point of victimisation had only been raised in final submissions, and (b) neither side wished to call evidence and contented themselves with making submissions.  At no stage during the hearings did Counsel for Miss Chambers put in a document particularising or identifying the detail of the claim and argument based on victimisation.  However, on both occasions, he did make oral submissions as to how he put the case on victimisation and how that could, if established, found a claim for unfair dismissal based on a constructive dismissal.

	Before us and it must have been the case, either expressly or implicitly before the Tribunal, Counsel for Miss Chambers accepted that there had been no evidence before the Tribunal as to comparing the position of Miss Chambers with other employees and also that the focus of attention of all concerned during the course of the hearing had not been on an alternative claim based upon victimisation.

	Discrimination by victimisation.  

	Section 2 of the Race Relations Act 1976 is in the following terms:
“(1)	A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has -
(a)	brought proceedings against the discriminator or any other person under this Act; or
(b)	given evidence or information in connections with proceedings brought by any person against the discriminator or any other person under this Act; or
(c)	otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or
(d)	alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.”

	As is confirmed inter alia by the decision in Aziz v Trinity Street Taxis Limited [1986] ICR 534 such a claim has three elements which the Applicant has to establish.  Firstly, the Applicant has to establish an act within one of the sub-sections 2(1)(a) to (d).  There is no dispute here that such a protected act or acts were established and the Tribunal accepted this.  The second and third elements appear from paragraphs (2) and (3) of the head note in the Aziz case at 535.  Those paragraphs read as follows:
“(2)	That, in determining whether a complainant had been treated less favourably for the purpose of section 2(1), the treatment applied by the alleged discriminator to the complainant had to be compared with the treatment which he had applied or would apply to persons who had not done the relevant act falling within paragraphs (a) to (d) of the subsection and in applying that test, in the circumstances relevant for the purposes of sections 2  and 11(3)(b), the association clearly had treated the complainant less favourably, by expelling him from membership, than it treated other persons.
(3)	But that, in order to establish, as required by section 2(1)(c), that the alleged discriminator had treated the complainant less favourably “by reason that” the complainant had done the act fall falling within paragraph (c), it had to be shown that the very fact that such act had been done under or by reference to the race relations legislation had influenced the alleged discriminator in his unfavourable treatment of the complainant;  that the evidence did not establish that the fact that the recordings were made by the complainant by reference to the race relations legislation in any way influenced the association in expelling him from membership; and that, accordingly, the complainant had failed to prove the necessary element of causation.”

	We asked Counsel for Miss Chambers to tell us how he submitted that these two elements were satisfied on the evidence before the Tribunal.

	In his submissions before us, as we have said, he accepted that there was no evidence of comparison and his submission was that it would have been open to the Tribunal to infer that that element was satisfied from evidence given, as to the treatment of Miss Chambers and other evidence relating to conduct of Berensons that was generally before the Tribunal during the hearing.  We find that a surprising submission when it is accepted that this is an important element of this statutory claim.  We do not dispute that in certain cases it might be possible to infer that aspect of a claim but we fail to see how the Tribunal can be said to have erred in law in concluding on the totality of the evidence that they heard that the parties should be given an opportunity of presenting further evidence on this aspect of the claim.  The natural and inevitable inference from that conclusion of the Tribunal, subject to being persuaded to the contrary by oral submission, was that there was insufficient evidence for them to reach a conclusion on that element of the claim and it follows from that, that absent further evidence, or persuasion, the Applicant would fail on that element of the claim.

	As to the third element we were referred to extracts from the Notes of Evidence. If those extracts are to be read as a question being put to the relevant witness from Berensons concerning whether the protected acts influenced the decision of Berensons and the decisions and actions of Berensons, it is clear from the finding of the Tribunal that they accepted the explanation given that the protected acts took place but were not in any way influential in the decisions and actions taken by Berensons.  It follows that if anything the Tribunal were being generous to Miss Chambers when in their decision in December 1996 they gave her, and her advisers, the opportunity of returning before them to seek to persuade them either by the introduction of further evidence, or submission, that they should find in her favour on the claim based on victimisation.

	The Tribunal’s approach.

	The original approach of the Tribunal  as we have already said was that they felt having regard to their views of the evidence and the way it was put before them, that the parties should be given a further opportunity to address them on the issue of victimisation.  We have already commented that given their findings of fact as to the motivation of Berensons, this could be said to be generous towards Miss Chambers and her advisers.

	We are confident that the Tribunal would have expected the matter to have come back before them reasonably quickly.  Indeed this is indicated by the last sentence of paragraph 9 of their Extended Reasons given in December 1996.  For the first three months of 1997 or thereabouts, Counsel for Berensons was on maternity leave.  Thereafter, the Applicant has not put before us any evidence that she and her advisers were pressing the Tribunal for an early hearing date.  In this context it must be remembered that the findings in December 1996 were to the effect that the claim to victimisation had not been particularised and the Tribunal wished to hear more about it before reaching a decision on the point and that the onus in respect of that allegation lay on the Applicant.

	In their Extended Reasons given in January 1998, the Tribunal refer to the case of Quarcoopme -v- Sock Shop Holdings Ltd [1995] IRLR 353 and accept as indeed was accepted on behalf of Berensons that that case establishes that the entry in box 1 of this application to the Tribunal includes all elements of a claim based on discrimination under the Race Relations Act 1976 and thus one of victimisation.  However, the Tribunal went on to accept the submission on behalf of Berensons that before the issue of victimisation could be determined properly by them, it should be particularised and that therefore the Applicant should amend her Originating Application to include those particulars.

	A necessary starting point for that decision is the rejection of the submission made on behalf of Miss Chambers that it would be proper to deal with the allegations based on victimisation on the existing evidence, and only by way of further oral submissions.  There may be a technical argument that prior to oral submissions being given there should be particularisation by amendment or otherwise, but in our judgment very properly it was accepted by Counsel for Miss Chambers that such fine points do not arise in this case and what underlies this decision of the Tribunal is their original concern that they should hear further evidence or give an opportunity for further submissions to be made.  In our judgment that is a very natural concern of the Tribunal given the state of the evidence and the submissions made before us on behalf of Miss Chambers (a) that the second limb should be established by inference and without giving Berensons the opportunity to provide evidence as to relevant comparisons and (b) that the third limb should be decided without any further evidence albeit that it did not form the focus of cross examination of the relevant witnesses called on behalf of the employer as to their motivation.  In our judgment the Tribunal were right to conclude that there should be further evidence before they dealt with the victimisation claim, but in any event, that conclusion was well within the ambit of their discretion and does not disclose any error of law.

	In their reasoning the Tribunal go on to deal with the question of amendment of the Originating Summons and thus in our judgment whether the Applicant should be given the opportunity of presenting further evidence and then submissions in support of the victimisation claim.  It submitted on behalf of Miss Chambers that in determining that the Originating Application should not be amended, the Tribunal erred in law, we do not agree.  In our judgment the terms of the relevant rule, authority, common sense and fairness all indicate that generally claims for victimisation should be particularised before they are dealt with by a Tribunal.

	Naturally there will be exceptions particularly to the formal need for amendments to be made to Court documents and arguments can be disposed of during the course of a hearing without requiring a party to provide in writing the detail or particulars of an additional claim.  In many cases both sides will know what the issues are, and be able to address them fully and fairly,  without any formal or written identification of the matters relied on.  However, when matters are raised very late in the day, a central issue is whether or not both sides have had a fair opportunity of presenting to the Tribunal the evidence they would wish to on those issues.

	When a Tribunal concludes that that has not been the case, in our judgment it is then right for them to require the claim to be particularised before it is advanced.  Turning to the rules, these can be found in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993.  Rule 1 deals with the Originating Application and is in mandatory terms.  1(C) provides that the Originating Application shall set out the grounds, with particulars thereof, on which relief is sought.

	Turning to authority, the Tribunal as we have said referred to the Quarcoopme case which establishes that the entry in box 1 raised the point of victimisation and simply reading from the head note in that case, it says as follows:
“In the present case, the tribunal had wrongly applied a test appropriate to an application to bring a claim out of time.  On the basis that the application was to amend the claim rather than just to particularise it. , the test the tribunal should have applied was to see whether any hardship or prejudice would be incurred by the employers sufficient to justify rejecting the application.  The case would be remitted to the tribunal for them to apply the correct test.”

	At paragraph 13 of the judgment it said:
“We therefore conclude that the application to amend or to particularise, whichever it was, was not time barred; and the test that the tribunal should have applied at the very highest, and this is on the basis that it was an application to amend rather than just to particularise, was to see whether any hardship or prejudice would be incurred by the respondents sufficient to justify rejecting the application and, in answering that question, of course, the tribunal would have to have in mind that if they reject the application they are, in effect, shutting out a claim which the Applicant wishes to make.  That is a very strong action to take and one which we would imagine tribunals would be very slow to adopt.  Without wishing to prejudge the issues here because we feel that the decision on that has to be made by the tribunal we, for our part, have to say that we find it difficult to make such a decision or identify sufficient grounds here upon which it could be made but, in saying that, we are not, of course, seeking to exercise the tribunal’s discretion for them.  It must be a matter for them.”

	That identifies the test which is one well known in many forms of litigation when one side is in effect seeking a favour from the Court to bring an additional matter before the Court or Tribunal for determination.

	The Tribunal also referred to the decision in Selkent Bus Co Ltd v Moore [1996] ICR 836 in which the Employment Appeal Tribunal deal with and provide guidance as to the procedure and practice for amendments, and as we understand it, particularisation of claims by such an amendment.  At page 843, under paragraph 4 the Tribunal say this:
“(4)	Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.”

	And in paragraph 5 the Tribunal deal with “What are the relevant circumstances?” and unsurprisingly start with the sentence, “It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant.”, and the headings there are “(a) The nature of the amendment”, “(b) The applicability of time limits” and “(c) The timing and manner of the application”.

	Those authorities indicate that although, as in this case, the claim based on victimisation is included in the application by virtue of the use of the words “race discrimination” in box 1, it should be particularised, and it is a matter for the relevant Tribunal applying their discretion judicially as to whether or not to proceed without particulars and, whether or not to allow amendment to be made to include particulars.

	The conclusion of the Tribunal is included in paragraphs 5 and 6 of their Extended Reasons given in January 1998.  Starting in the middle of paragraph 5 their Extended Reasons read as follows:
“....We were unable to find any mention in these particulars, which are lengthy, that a claim of victimisation contrary to Section 2 was being brought.  The particulars only deal with the Applicant’s claim that she had been unfairly dismissed and that there had been racial discrimination against her in the form of direct discrimination.  These matters have been ruled upon by the Tribunal and cannot now be re-opened.  We find that, before the Applicant can bring a claim of victimisation, she would have to seek leave to amend to give particulars of the victimisation alleged, in order that the Respondent would know the case which they had to meet.  It is impossible for the Applicant to go forward with her case or for the Tribunal to deal with it simply by reason of the insertion of the words proposed by Mr Gumbiti-Zimuto.....”

	We pause to comment that we are not quite clear what those words were, but Mr Gumbiti-Zimuto, as we have explained, told us the basis upon which he proposed to put the case and also told us that he had so informed the Tribunal.  Paragraph 5 of the Extended Reasons continues:
“......Our view is that more is needed than that and that since victimisation cannot be based simply on the existence of a protected act but on the authority of the Court of Appeal in Aziz’s case involves a consideration of a number of factors, the matter must be pleaded fully in order that it can go forward.”

	In our judgment, reading that paragraph fairly it is a clear finding that the Tribunal decided that they needed to hear more evidence before they could decide the claim properly and therefore it should be particularised.  

	Paragraph 6 of the Extended Reasons continues:
“6.	We therefore have to consider whether, after the passage of all this time, we should grant leave to amend, in order that full particulars can be provided on the claim of victimisation and the matter go forward for a hearing.  In respect of this, we have to balance the respective advantages and disadvantages and the prejudice which could be caused to the Respondents by the opening of the case at so late a stage having regard to the fact that, having regard to Quarcoopme’s case, it cannot be said that such an allegation would be out of time.  We have come to the conclusion that we will not grant  leave to amend in this case.  It seems to us that the matter has been in the hands of the Commission for Racial Equality from an early stage and that, if there was a serious intention to claim victimisation as an alternative to a claim of direct discrimination, or as an addition to it, then it ought to have been pleaded in full so that the Respondents knew the case which they had to meet when the claim first came before the Tribunal.  We have also had regard to the fact that the ending of the relationship between the parties was in August 1995 and there would be considerable prejudice to the Respondents were they now to have to face a claim of victimisation and deal with it.  We find that the prejudice to the Respondents in this matter far outweighs any advantage which there might be to the Applicant in allowing her to re-open the case on this point and accordingly we refuse leave to amend and therefore decline to consider the claim of victimisation.”

	On behalf of Miss Chambers, that reasoning is attacked by asserting that it relies solely on delay or possibly that it places too much emphasis on delay.  As we read that paragraph, it brings into account other matters in addition to delay which one can see reflected in the headings we have referred to in the judgment in the Selkent case, namely the nature of the amendment and the timing and manner of the application.

	It is of note that a factor the Tribunal rely on is that Miss Chambers had been in the hands of the Commission for Racial Equality from an early stage, and if this claim was to be put, details of it ought to have been given so that the Respondents knew the case which they had to meet when the claim first came before the Tribunal.  The last sentence also in our judgment, indicates that the position of the Tribunal on the facts that they had heard, was that Miss Chambers was unlikely on a further hearing, to convince them, that the motives of Berensons satisfied the third limb of the test in Section 2.

	Pausing for a moment and considering the position, if an application had been made at the end of 1996 or the beginning of 1997.  Those matters of prejudice identified in paragraph 6 of the Extended Reasons would then have existed and speaking for ourselves, we think that there would have been very strong grounds for refusing leave to particularise the case so that further evidence could be given.  We reject the submission made on behalf of Miss Chambers that that would have been a simple and short exercise, performed by recalling some of Berensons’ witnesses and putting one or two extra questions to them.  In particular, we do not see how that would have enabled the Tribunal to properly consider the second limb, namely, the relevant comparison.

	Additionally, in our judgment, the Tribunal faced with making a decision in late 1997, had to take into account also the fact that another year had passed.  Even assuming that faults as to this delay had nothing to do with the parties, or were evenly divided between the parties, it was a fact, and in our judgment, the Tribunal cannot be criticised for taking that delay into account.  We would add that if it is necessary to attribute fault between the parties for this delay, it was incumbent upon the Applicant to get this matter on and heard as soon as possible, and we have heard no evidence, and have been provided with no documents, that this is something that she sought to do.

	In short as to the exercise of this discretion, in our judgment, the Tribunal had regard to the relevant test set out in the two cases we have referred to, had regard to all the circumstances in considering the respective hardship and prejudice of the parties and that their decision cannot properly be said to demonstrate an error of law. 

	It was well within the ambit of their discretion.  We would add that in our judgment, it was correct.  For those reasons we dismiss this appeal.

	An application has been made to us on behalf of the Respondents to the appeal, Berensons that we should make an Order for costs against the Appellant pursuant to Rule 34.  Before dealing with that, I should mention, that in the amended grounds of appeal an allegation was made that the conclusion reached by the Tribunal was perverse.  This was not pursued in oral argument before us and in our judgment Counsel for Miss Chambers was right not to do so, because if he lost on the other grounds, it was inevitable that he was going to fail on the alternative ground of perversity.

	We have some sympathy with the application made on behalf of Berensons but on balance we have decided that this is not a case in which we should conclude that Rule 34 applies on the basis that all, or some, of the proceedings were unnecessary, improper or vexatious or there was other unreasonable conduct in bringing or conducting the proceedings.

	In our judgment, the best point raised on behalf of Berensons was that after the Notes of Evidence had been obtained this appeal should then have been abandoned because they indicated that the Tribunal did not have adequate evidence before it, to enable it to deal properly with the point on victimisation.  However, both we and Berensons are handicapped in respect of this application for costs because we do not know the reasoning of the Tribunal on the preliminary hearing when they accepted that there was a reasonably arguable point of law in this appeal.  It is thus only a matter of inference by us that what motivated them was that the Notes of Evidence might disclose that the Tribunal did have all the relevant evidence before them and it was unnecessary and thus an error of law for them to persist in the claim being particularised.  At present, that is a matter of speculation and in all the circumstances, we think it would be wrong for us to exercise our discretion pursuant to Rule 34 to order that Miss Chambers pays any of the costs.