Appeal No.	 EAT/627/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 June 2000

Before
THE HONOURABLE MR JUSTICE MAURICE KAY
MR B R GIBBS
MRS D M PALMER

MR D C D'SOUZA	APPELLANT

LONDON BOROUGH OF LAMBETH	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	

	MR JUSTICE MAURICE KAY:	This matter is before us today as a preliminary hearing of an appeal by Mr D’Souza against a decision of an Employment Tribunal made on 2nd May 2000.

1.	It is apparent from the documents before us that Mr D’Souza has been in dispute with the London Borough of Lambeth, his erstwhile employers, over many years as a result of his employment relationship. We do not propose to set out the history of his various applications because on 25th January 2000 the Employment Appeal Tribunal, presided over by Charles J gave a lengthy judgment in which that history is referred to. 

2.	The present case is not based on the application that was before Charles J and his colleagues. The present case which is set out in form IT1 which was lodged on 18th August 1999, makes complaints under the Equal Pay Act 1970, the Equal Pay Directive and Article 119 of the EC Treaty, now Article 141.

3.	In 1993 Mr D’Souza made a successful application to an Industrial Tribunal. The outcome of which was an order for reinstatement and an order for compensation in the sum of £84,600. In the event, it was not complied with and neither the reinstatement nor the payment of that particular sum was forthcoming. The argument was that the compensation fell with the order for reinstatement when that was found no longer to be appropriate.

4.	What Mr D’Souza is seeking to establish is that Lambeth acted unlawfully and in breach of the 1970 Act, Article 119/141 and the Equal Pay Directive. He seeks to establish that by comparing his position with that of a lady called Emma Lewis who was re-employed or reinstated by Lambeth and was paid for a number of years thereafter. He makes some assertions about Ms Lewis’ position. We are of course unable to form a view as to precisely what the rights and wrongs of her situation were, as this is a preliminary hearing at a procedural stage of the present application. But in short, he is seeking a remedy under the domestic and European legislation to which we have referred, on the basis that compared with Ms Lewis he has been treated unlawfully.

5.	This is not the first occasion upon which Mr D’Souza has sought a remedy in relation to these matters by comparing himself with Ms Lewis. The judgment of Charles J, to which we referred, was in  relation to a previous application, which sought to establish a comparison between Mr D’Souza and Ms Lewis under the Sex Discrimination Act 1975 and associated legislation. The history of that application is set out in the judgment of Charles J. Suffice it say, our colleagues in January 2000 came to conclusions very adverse to Mr D’Souza. They dismissed appeals from the Employment Tribunal and found the applications to be abuses of process. In due course Charles J and his colleagues refused Mr D’Souza permission to appeal to the Court of Appeal. However, he is in the process of renewing his application for permission to appeal to the Court of Appeal. He informs us that that application for permission is listed to be heard sevens days from now.

6.	The present application under the 1970 Act and associated domestic and European legislation came before an Employment Tribunal on 2nd May 2000. The Employment Tribunal was informed of the state of play in relation to the application under the 1975 Act, namely that it had run into trouble in the Employment Tribunal and the EAT but that Mr D’Souza is seeking permission from the Court of Appeal to take the matter further there. On 2nd May 2000 the Employment Tribunal decided to adjourn the preliminary hearing under the 1970 Act and the associated legislation pending the outcome of Mr D’Souza’s applications to the Court of Appeal in the case under the 1975 Act. 

7.	It is that decision to adjourn which Mr D’Souza is now seeking to challenge in this Appeal Tribunal. He has made a number of points. His first point is that this is quite simply a different case being under the 1970 Act rather than the 1975 Act. Different domestic and European law applies and this case is not governed by whatever the Court of Appeal may decide in the sex discrimination case. He also challenges the exercise of discretion by the Employment Tribunal and relies further on Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms and in particular to the right to a fair and public hearing within a reasonable time. 

8.	This being a discretionary matter, all that we can do is to consider whether the discretion of the Employment Tribunal was exercised in a way which was plainly wrong or exercised in a way which no reasonable Employment Tribunal could have done. Although the legislation now relied upon is different from the legislation relied upon in the sex discrimination application, it is abundantly clear to us that the circumstances giving rise to the two different applications very substantially overlap. They relate back to the proceedings in 1993, the consequences of those proceedings, and they rely on a comparison with the position of Ms Lewis. 

9.	In all those circumstances, it is hardly surprising that the London Borough of Lambeth made representations to the Employment Tribunal in the present application that the present application should be adjourned pending resolution of the other matter in the Court of Appeal otherwise, of course, the London Borough of Lambeth would find itself having to defend both applications for as long as both were or may be alive and kicking.

10.	We find ourselves unable to say that the appellant, Mr D’Souza, has even an arguable case for saying that the decision to adjourn in the Employment Tribunal was a legally erroneous exercise of discretion. Indeed, it seems to us to have been an exercise of discretion that any Employment Tribunal would have made in these circumstances. We therefore conclude that there is no arguable ground of appeal in this case. We have considered what Mr D’Souza has had to say. We are satisfied that this was a perfectly lawful exercise of discretion. We do not consider that the European Convention of Human Rights avails Mr D’Souza in these circumstances. We do not think it arguable that he has been or is being denied his right to a fair and public hearing within a reasonable time. It is simply a case of a court or tribunal taking a pragmatic but fair and proper decision in the circumstances of the case and, understandably, waiting to see what the Court of Appeal finally says about the conclusions which Charles J and his colleagues expressed so trenchantly as recently in January 2000. There is no purpose in this appeal going any further and it is accordingly dismissed.