Appeal No.	 EAT/448/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 July 2002
Judgment delivered on 5 September 2002

Before
HIS HONOUR JUDGE J R REID QC
MR D A C LAMBERT
MISS D WHITTINGHAM

MR C ARGENIO	APPELLANT

(1) THE NEC GROUP LTD 
(2) SYMPHONY HALL (BIRMINGHAM) LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	
For the Respondents	MR ASHLEY NORMAN
(Solicitor)
Messrs Pinsent Curtis Biddle
Solicitors
3 Colmore Circus
Birmingham B4 6BH	

JUDGE J R REID QC:

1	There are two issues before the Employment Tribunal in this case.  The first of these is whether Mr Argenio should be allowed to adduce further evidence in support of his appeal.  The second is his appeal against a decision of an Employment Tribunal held at Birmingham on 15, 16, 17 and 18 January 2001.  The decision was entered in the register and sent to the parties on 6 March 2001.  By that decision the Tribunal unanimously decided that Mr Argenio’s complaint of disability discrimination was brought out of time and that it was not just and equitable to allow it to proceed.  It was therefore dismissed.

2	Dealing first with the application to adduce new evidence:  it is worth reading the Notice of Appeal in full to give the tenor of the Appellant’s approach to the case:

“Dear Mrs P Donleavy,
I do not thank you for your Institutional Bureaucratic Racist reply dated 21 June 2002.
Subject – Appellant request dated 15 May 2002 and 19 May 2002.
New Evidence – Which were not before the employment tribunal will be entertained by the EAT only in a very narrow set of circumstances where:
(1) there is a reasonable explanation why it was not put before the employment tribunal;
(2) it is credible; and
(3) it might have a decisive effect on the result of the Appeal.
The above rules are from Employment Tribunal Practice and Procedure.
How is it that the Registrar can put forward different tests or Rules?
1. Could not have been obtained with reasonable diligence
2. Be not only relevant but have an important influences on the case.
3. Be credible.
Collins Dictionary – Diligence the term used in Scotland for the body of law relating to the enforcement of obligations.  See EXECUTION.
EXECUTION – Completion or satisfaction 
1. the signing of a deed or will or other written instrument with the intent that it should be legally valid and effective.
2. the carrying out of court order such as sentence of death.
3. performance of contract.
As a Registrar Mrs P Donleavy should change job and I would suggest and recommend her to go to clean the Queen’s toilette, which is more than honourable job if she can do it efficiently.
The Appellant would like to inform the EAT to be removed the use of the Registrar for his case and the Admissibility of Documents is still applicable and valid for use at the Appeal as stated in Appellant requests dated 15 May 2002.” 

In order that Mr Argenio should not feel disadvantaged we looked at the material which he wished to adduce de bene esse.  Having looked at it we are entirely satisfied that the decision which the Registrar made was correct.  

3	Turning to the substantive appeal:  the issues in this substantive appeal are narrow.  Mr Argenio has many complaints but those do not fall to be decided in the course of this appeal.  This appeal is concerned only with the correctness of the decision of the Employment Tribunal not to permit him to amend his claim against the Respondents to include a claim for disability discrimination.

4	The background to Mr Argenio’s complaint is as follows.  He was employed by NEC Group Ltd as a security officer from March 1998.  He was also employed by Symphony Hall (Birmingham) from August 1998 as a steward.  He believes that in the course of his employment he has suffered discrimination.  He has made a total of four applications for racial discrimination and/or victimisation.  On 2 September 1999 he was dismissed.  The events leading up to his dismissal were as follows.  On 11 August 1999 he was asked to attend a meeting.  At almost the commencement of the meeting he was asked by Mr Masters and Mr Wright, the employer’s representatives at the meeting, whether he was taping the meeting.  He was in fact at that stage making a covert tape recording of the meeting.  He fiddled in his pocket and turned off his recorder.  He then told his interviewers that he was not recording the meeting.  After further exchanges Mr Argenio indicated that he would only respond to questions at the meeting if he could tape the meeting or have a solicitor present.  He was then suspended.  The object of the meeting had been, so far as the employers were concerned, to discuss three issues:

(1) Mr Argenio’s practice of confronting colleagues where he felt their performance or conduct was unacceptable rather than referring the matter to his supervisor as instructed.  

(2) His failure to produce written reports within a reasonable timescale when asked to do so by his supervisor.

(3) Taping conversations whilst at work without the knowledge and permission of the parties involved. 

Following Mr Argenio’s suspension he was requested to attend a disciplinary meeting on 31 August.  A disciplinary hearing was then conducted by a Mr Kimmett and a Mr Gill.  After hearing the evidence they dismissed Mr Argenio for gross misconduct.  He appealed against that decision and his appeal was heard by way of re-hearing on 6 October.  The re-hearing was conducted by a Director at the NEC, a Mr Pratty.  By letter dated 8 October Mr Pratty upheld the decision of the disciplinary panel.  On 29 November 1999 Mr Argenio commenced proceedings alleging (1) unfair dismissal and (2) race discrimination.  

5	On 8 January 2001 Mr Argenio wrote to the Regional Secretary of the Birmingham Employment Tribunal in these terms:

“The Applicant wishes to submit an ‘Amended Skeleton Argument’ to be attached to the ‘Skeleton’ served on May 2000, for the ‘above’ cases.
The Applicant would like to submit, by virtue of his ‘learning disability’ the opportune adjustment for the following ‘Right’ to be applied to the hearing due, very shortly.
‘Disability Discrimination Act 1995 [Schedule 1] section 4(1) (leaving out provisions not material for this case) provides:
4 (1) Subject to the provisions of schedule 1, a person has a disability for the purpose of this Act if he has ‘an impairment is to be taken to affect that ability of the person concerned to carry out day-to-day activities only if it affects one of the following -
…
(g) memory or ability to concentrate learn or understand.’
The claim is meritorious and that it would be just and equitable to allow this ‘clarification’.  The Respondent should not suffer any hardship, injustice or prejudice to apply what it is considered to be a common sense’s approach of ‘natural justice’.”

6	This letter was the first formal indication that Mr Argenio wished to assert that he had been discriminated against by reason of his disability.  When his four claims came for hearing together on 15 January 2001 his application for leave to amend to add the disability discrimination claim was heard.  As we have already said it was rejected.  The Tribunal in making its decision said as follows:

“4  Mr Argenio’s case before the Employment Tribunal was, until 8 January 2001, one of race discrimination and latterly of unfair dismissal.  The first complaint to the tribunal was brought by way of an Originating Application in October 1998.  His most recent complaint to the tribunal was brought by way of an Originating Application dated 29 November 1999.  He was dismissed from his employment on 2 September 1999.  It follows that a complaint of discrimination on the grounds of his disability, must have been brought within three months of the last date upon which he could have been discriminated against, that being the end of his employment with the respondent, on 2 September 1999.  The time limit for such a complaint therefore expired on 1 December 2000.  Therefore, the case of the complaint of disability discrimination, dated 8 January 2001, was thirteen months out of time.
5  Mr Argenio complained of disability discrimination on the basis that he is a disabled person within the meaning of the Disability Discrimination Act 1995, suffering from dyslexia.  The reason that his complaint was late, he said, was that he was an unrepresented person without legal assistance.  He suffers from dyslexia.  His dyslexia made it extremely difficult for him to understand the law which is an extremely abstract matter.  The dyslexia therefore made it difficult, if not impossible, for him to understand his rights.
6  The tribunal’s view of the matter is that if the case were allowed to proceed at the moment, the balance of prejudice would lie squarely against the respondents.  This is a matter that has taken many long months to reach a hearing.  This is not particularly the fault of one party or the other, it is just a fact of life.  Nevertheless, at long last and, after protracted interlocutory correspondence, the case is now ready for a hearing.  The respondents have prepared their case on the basis that they will be meeting a complaint of unfair dismissal and race discrimination.  There has been no hint that the applicant was complaining under the Disability Discrimination Act 1995 until some three or four working days before the date of the hearing.  To allow such a complaint to be considered now would, undoubtedly, require that the proceedings be further adjourned, with a consequent loss of costs thrown away for the respondents and, given the distance in time from the matters complained of, considerable prejudice against the respondent.  The matter would, in all probability, require a preliminary hearing on the question of disability and further particularisation of the applicant’s already very complex complaint.  This case could not be brought back before the tribunal until the late summer, given the current listing situation.
7  We have also enquired of ourselves whether we accept the applicant’s disability has made it impossible for him to understand his rights.  We doubt that.  We note that the applicant has pursued a lively, protracted and informed correspondence with the tribunal and with the respondents relating to procedural matters in this case.  The applicant has not had any difficulty in expressing himself in writing and has clearly been able to get a firm grasp of the issues in his race discrimination and unfair dismissal complaint.  We are also aware that the applicant had some legal advice at the time of his dismissal and indeed mentioned his dyslexia to the respondents at that time.  Nevertheless, he chose not to rely on a claim of disability discrimination in his final application.  We take the view that the applicant’s disability could not have had a substantial effect in preventing him from realising that he might also complain that he had been discriminated against on the grounds of his disability, if he truly believed that that was an issue.  We note also that this is not a case where the applicant can complain that he has been misled by the respondents since there has been no correspondence between the applicant and the respondents on the question of any possible complaint under the Disability Discrimination Act.  In all the circumstances, the tribunal consider that it would not be just and equitable to exercise the discretion given to us by Section 8 of the Disability Discrimination Act 1995 to allow these proceedings to go ahead.”

7	Mr Argenio says that that reasoning is flawed.  First of all he says that the complaint of disability discrimination was already contained in the Originating Application.  He refers to paragraph 5 of his IT1 which is in these terms:

“5  Almost as soon as the meeting started Gary Masters and Personnel Manager Steve Wright started asking me questions about whether I was taping the meeting.  I suffer from dyslexia and English is my third language and sometimes I have difficulty in understanding everything that is said to me.  Consequently I wanted either to be able to tape the meeting or to have an independent note taker present.  At the beginning of the meeting I attempted o tape the meeting in order to protect myself.  I would have never thought that the meeting of 11 August 1999, was going to be a further act of discrimination or victimisation by the NEC Group concluding with my dismissal.”

He says that in these circumstances the amendment which he sought to make was merely a re-labelling of an existing claim and that the Tribunal ought to recognise this.  He referred us to the well known case of Selkent Bus Co Ltd v Moore [1996] IRLR 661.  He went on to refer to Liburd v Hideaway Youth Project, 23 Sept 1999 (Unreported) in which Judge Hicks, sitting in the Employment Appeal Tribunal said:

“So, to summarise, all the circumstances must be taken into account which must, of course, mean all relevant circumstances, but within the general duty to take account of all of the circumstances there are two broad areas of consideration.  First, the question of the prejudice, or rather the balance of prejudice, as it is said, which each party would suffer if the decision went against it and secondly, what is there described as ‘the checklist’ derived from the analogous jurisdiction under section 33 of the Limitation Act 1980.”

He referred also to British Coal Corporation v Keeble & Ors [1997] IRLR 336, in particular the passage at page 338.  He made reference also to Goodwin v The Patent Office [1999] IRLR 4, although this does not bear on the point under discussion.

8	In response, on behalf of the Respondents, it was submitted that there was nothing in the IT1 which could properly be regarded as indicating a disability discrimination claim.  

9	We accept this proposition.  The mere reference to dyslexia in the context of it being a reason why he should wish to make a tape recording of a meeting does not indicate that he is suggesting that he was discriminated against by reason of any disability.  In these circumstances it does not seem to us that any criticism can be made of the Tribunal for failing to allow Mr Argenio’s proposed addition of a disability discrimination claim on the basis that it was a mere re-labelling.  The point is a bad one and was in any event not made before the Tribunal, where, in contrast, Mr Argenio’s submission was that the reason that his complaint was late was that he was an unrepresented person without legal assistance.  In our judgment this ground of appeal fails.

10	The second of Mr Argenio’s grounds of appeal is that the decision to refuse to allow him to add a disability discrimination claim was “a perverse judgment against the weight of the evidence”.  In our judgment this point fails.  It cannot be said that the decision which the Tribunal reached was one that was “obviously wrong” or one that no reasonable Tribunal could have reached.

11	The Tribunal made a decision based on the balance of prejudice.  They pointed out that that the matter had taken many long months to reach a hearing.  They said, correctly, that to allow a disability discrimination complaint to be made would undoubtedly require further adjournment with the consequent burden of costs thrown away, and given the distance in time from the matters complained of, considerable prejudice against the Respondents.  They pointed out, no doubt having in mind the dicta of Morison J in Goodwin v The Patent Office, that another preliminary hearing would no doubt be required and further particularisation of Mr Argenio’s already very complex complaint.  They took the view, manifestly a correct one, that Mr Argenio’s alleged disability did not make it impossible for him to understand his rights, as he claimed.  They noted his lively, protracted and informed correspondence with the Tribunal and with the Respondents in relation to procedural matters.  They noted that he had no difficulty expressing himself in writing and had clearly been able to obtain a firm grasp of the issues in his race discrimination and unfair dismissal complaints.  They noted also that he had had some legal advice, and indeed had mentioned his dyslexia at that time.  

12	In our judgment not only was the decision at which the Tribunal arrived one which was not perverse but it was one which was on the facts correct.  Even when Mr Argenio wrote to the Tribunal saying that he wished to add a disability discrimination claim, he did not identify the nature of the discrimination which he said he had suffered by reason of his disability or the detriment which he claimed to have suffered.  In effect, to allow a claim for disability discrimination to be made at the late stage that Mr Argenio sought to make it, would have put back the hearing of his claims by a very considerable period and have, in the effect, necessitated the re-starting of the proceedings from scratch.  Given the length of Mr Argenio’s delay, the lack of any cogent reason for it, the effect of delay on the cogency of evidence concerning the events which Mr Argenio suggested indicated discrimination, the lack of promptness with which Mr Argenio had acted, and the fact that he had had appropriate professional advice (with which he had dispensed) long before, it was wholly inappropriate to allow Mr Argenio to add a new claim for disability discrimination at the late stage of the first day of the hearing.

13	The third of Mr Argenio’s grounds of appeal was essentially that he was the victim of bias.  He alleged that both the Employment Tribunal and the Employment Appeal Tribunal were biased against him and were prejudiced.  The general tenor of this complaint can be gathered from his skeleton argument.  Paragraph 40 of the Skeleton reads:

“40  The only legal assistance he received was by a Solicitor from 02 July 1999 till 25 October 1999; the Solicitor has created in him more confusion than assistance, together with Employment Tribunals.  He finds violating by both:  EAT & Associate, difficult to say about ‘Guidance’.  A Regional Chairman, Mr Rees & Associate, and EAT, both Tribunals for the case ignored to take a reasonable view of the Appellant’s ‘position’ than did, and absolutely did not look at the whole equity of the situation, the Appellant is not pensive in alleging these are violation as part of that “Institutional ‘Burocratic’(sic) Racism” which is not an hypothetical question whether it would have made any difference to the outcome if the appropriated procedural’s violations had not been taken.  Both Tribunals have overlooked procedure by failing to take into the account relevant factors, are grounds upon which interfere with the exercise of “Tribunals’ Rule & Procedure” about the Appellant’s grievances.”

14	In our judgment there is no sensible basis on which Mr Argenio can advance any argument that the Tribunal was biased against him or in any way prejudiced.  

15	When the matter came before the Employment Appeal Tribunal for a preliminary hearing the Tribunal permitted the case to come to a full hearing without limiting Mr Argenio to any particular grounds of appeal.  However that Tribunal took the view, it appears, that the only matter which might form the basis of a serious ground of appeal, was that the disability discrimination claim was indicated in the original application.  That is the point that might be called “the label point”.  We heard submissions not only on the label point but also with the other points which Mr Argenio raised at very considerable length in his Notice of Appeal.  Having considered all the matters concerned we are satisfied that there is no substance in any of his grounds of appeal, and that there is no basis for disturbing the decision of the Employment Tribunal that his claim for disability discrimination was out of time and that it was not just and equitable to extend time.  The appeal will therefore be dismissed.

16	We should add one brief note.  Mr Argenio asked the Tribunal whether he could make a tape recording of argument.  We permitted him to do so because (1) he had nobody with him to assist him by taking notes (2) he told us that his dyslexia made it difficult for him to take notes (3) he suggested that he might wish to have an opportunity to re-listen to parts of the argument in order to ensure that he had understood them, English being, he said, his third language and (4) because he said he was in any event unable to write having broken his thumb.  Having taken all these matters into account we decided that it was in the interests of justice in the particular circumstances of this case to permit Mr Argenio to make a tape recording of the argument, on terms that he provided a copy of that tape to the Tribunal and that if the Respondents were willing to pay his reasonable charges he provided a copy also to the Respondents.  It remains our view that it would only be in the most exceptional circumstances that a litigant will be allowed to make his own recording of proceedings as they take place.