Appeal Nos.PA/1478/02/RN; PA/1479/02/RN
						          EAT/0471/03/RN; EAT/0472/03/RN
                                                                                                          EAT/0473/03/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 8 October 2003

PA/1478/02/RN; PA/1479/02/RN
Before
HIS HONOUR JUDGE PETER CLARK
(AS IN CHAMBERS)
and
(SITTING ALONE)

EAT/0471/03/RN; EAT/472/03/RN
EAT/473/03/RN

Before
HIS HONOUR JUDGE PETER CLARK
MR J R CROSBY
MR G H WRIGHT MBE

	

MR O IBIMIDUN	APPELLANT

H M PRISON SERVICE	RESPONDENT

PA/1478/02/RN	Appeal from Registrar’s Order Inter Partes
PA/1479/02/RN	Appeal under Rule 3(10) Ex Parte
EAT/0471/03/RN	Preliminary Hearing (Appeal and Cross Appeal) Ex Parte
EAT/0472/03/RN &	Preliminary Hearing Ex Parte
EAT/0473/03/RN

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant

EAT/0471/03/RN; EAT/0472/03/RN
EAT/0473/03/RN
PA/1479/02/RN; PA/1478/02/RN

MR MARC JONES
(Solicitor)
Appearing under the Employment Law Appeal Advice Scheme  	
For the Respondent

EAT/0471/03/RN
PA/1478/02/RN

MR KEITH MORTON
(of Counsel)
Instructed by:
The Treasury Solicitor
Queen Anne’s Chambers
20 Broadway
London SW1H 9JS	

HIS HONOUR JUDGE PETER CLARK

1	There are six separate matters listed today in the proceedings brought by Mr Ibimidun, the Applicant, against Her Majesty’s Prison Service, the Respondent.  They arise out of Decisions and Orders made in the Ashford Employment Tribunal and by the Registrar in the EAT.  

2	Logically the sequence is as follows:

(1) PA/1478/02 - The Applicant’s appeal against the Registrar’s Order dated 11 February 2003 and sealed on 26 February, refusing him an extension of time for appealing against the Tribunal’s liability decision promulgated with Extended Reasons on 24 September 2002.  His Notice of Appeal against the liability decision was dated 25 October and lodged on 6 November 2002, one day out of time.  By that notice he also appealed against the Chairman, Mrs Cooney’s subsequent decision to refuse his application for a review of the liability decision, that review decision being promulgated on 14 October 2002.  The appeal against the Registrar’s decision is itself out of time, having been lodged by way of a letter dated 9 July 2003, which also contained an application in PA/1479/02.

(2) PA/1479/02.  This application arises out of a direction given by the Registrar by a letter dated 8 July 2003 under Rule 3(7) of the EAT Rules ordering no further action on that part of appeal PA/1478 appealing against the Tribunal’s review decision dated 14 October 2002 (the first review decision) on the grounds that it raised no error of law in that decision such as to found the EAT’s jurisdiction to entertain the appeal.  That matter comes before me by way of application under Rule 3(10) of the EAT Rules.
(3) EAT/0471/03.  The Applicant’s appeal against the Tribunal’s remedies decision promulgated on 22 January 2003.

(4) EAT/0471/03.  The Respondent’s cross-appeal against that remedies decision.

(5) EAT/0472/03. The Applicant’s appeal against the Tribunal’s decision promulgated on 3 April 2003, striking out parts of his Originating Application in ET Case No 1101284/2002 on the grounds that those issues had already been raised and determined in earlier proceedings between the parties (the estoppel decision), together with certain procedural Orders.

(6) EAT/0473/03.  The Applicant’s appeal against the Chairman’s refusal to order a review of the estoppel decision.  

3	Applying that logical sequence it seemed to me, without dissent from the parties, that the sensible order of events this morning was for me to hear PA/1478/02 and PA/1479/02, my colleagues sitting only to observe, both parties being heard on the Registrar’s appeal and the Applicant only on the Rule 3(10) application and thereafter for the full Tribunal to hear the respective parties ex parte on their appeals in EAT/0471/03, EAT/0472/03 and EAT/0473/03.  Having completed all hearings we then rose to consider the matter before delivering this composite judgment.  

Background and procedural history in the Employment Tribunal

4	The Applicant who is black and of Nigerian racial origin commenced his service with the Respondent on 19 March 1999.  Whilst at the Prison Service Training College he was suspended for a period of fourteen weeks from May 1999.  He presented a complaint of racial discrimination arising out of that suspension which was eventually settled by the Respondent.  That settlement included an apology to the Applicant and his complaint led to disciplinary proceedings against other officers, two of whom were dismissed.  

5	He eventually completed his training and commenced his duties at Her Majesty’s Prison Belmarsh on 22 August 2000.  Arising out of his service at Belmarsh the Applicant presented five separate Originating Applications to the Tribunal between July 2001 and March 2002, those claims being combined and coming on for a seven day hearing before Mrs Cooney’s Tribunal in July 2002.  A further complaint presented on 29 July 2002, that is Case No 1101284/2002 forms the subject matter of the fifth and sixth matters before us.  

6	By their liability decision and reasons the Tribunal identified three heads of complaint arising out of the combined applications then before the Tribunal.  They were:

“(i) That the actions of the Respondent’s management in raising issues of personal hygiene with the Applicant on 27 November 2000, and in failing to have regard to his complaints about this, amounted to victimisation and were a direct result of his having previously made an application to the Employment Tribunal, and having made earlier allegations of racial discrimination against colleagues at the Prison Service Training College.
(ii) That some of his colleagues had made his life at the prison difficult and that his performance had been identified as unacceptable under the Respondent’s poor performance procedures by Mr Langley who had also bullied and victimised him and that the Respondent’s management had failed to protect and support him.
(iii) That he had been denied the opportunity to gain promotion to Senior Officer by Mr Langley.”

7	The Tribunal, for the reasons given on the facts as found, upheld the first complaint and rejected the second and third complaints.  There is no appeal by the Respondent against the Tribunal’s finding on the first complaint.  

8	On 9 October 2002 the Applicant applied for a review of the liability decision insofar as it rejected his claims, leading to the Chairman’s first review decision promulgated with reasons on 14 October 2002 dismissing that application under Rule 13(5) of the Employment Tribunals Rules of Procedure on the grounds that, in her opinion, it had no reasonable prospect of success.  

9	The remedies hearing arising out of the Tribunal’s finding in favour of the Applicant on the first head of complaint came before the full Tribunal on 15 January 2003.  By their remedies decision the Tribunal awarded the Applicant £3000 compensation for injury to feelings, together with interest totalling £407.  They rejected the Applicant’s further claims for lost earnings and for aggravated damages.  

10	On 7 March the full Tribunal chaired by Mrs Cooney convened to consider argument presented to them by the parties on 15 January on a preliminary issue, namely whether the Tribunal had jurisdiction to consider the Originating Application in Case No 1101284/2002, that which had been presented on 29 June 2002.  They considered the rule in Henderson -v- Henderson, prohibiting the re-litigation of issues which had been or could have been resolved between the parties at an earlier hearing, and concluded that insofar as the Applicant gave evidence in relation to matters raised on 29 June complaint on which the Tribunal had already made clear findings he could not raise those matters again.  Insofar as no findings had been made he could do so at the next hearing before the same Tribunal. (the estoppel decision).  

11	It was directed that a further complaint dated 18 November 2002, in Case No 1102282/2002, could be heard separately by a different Tribunal.  

By letter dated 4 April the Applicant applied for a review of the estoppel decision.  By her decision with reasons promulgated on 29 April the Chairman again dismissed the application under Rule 13(5) (the second review decision).

The appeals and Rule 3(10) application
12	It is convenient to deal with the five appeals and the Rule 3(10) application in the same order in which they were heard.  

13	(1) PA 1478/02
The Applicant’s Notice of Appeal, dated 25 October 2002, that is within the forty two days for appealing, was not lodged against those parts of the Tribunal’s liability decision adverse to him until 6 November, one day out of time.  

14	In applying for an extension of time for appealing by letter dated 26 November 2002 the Applicant referred to his letter to the EAT dated 23 October and faxed on or around 29 October.  (no record of that fax appears on the EAT file, but I let that pass) indicating that he was about to file his Notice of Appeal.  

15	His explanation for failing to lodge the Notice of Appeal in time in these circumstances was that he intended to lodge it on 5 November but then forgot to do so.  He attributes that forgetfulness to memory loss, something from which he had suffered following the Employment Tribunal hearing in July 2002.  On this basis he asks me to extend time.  The Respondent opposed that application.  The Registrar refused to extend time.  

16	I take into account the fact that the Applicant represents himself.  However, he was well aware of the time limit for appealing and its importance.  Today, through Mr Jones who appears on his behalf under the ELAAS scheme, it is suggested for the first time that the Applicant was confused as to the time for appealing by the fact that in addition to the liability decision, he also applied for a review, that application being rejected in the Chairman’s first review decision.  I do not accept that late explanation for the delay.  

17	Does his claimed memory loss provide an acceptable explanation allowing me to take the exceptional course of extending time, even by just one day, applying the principles set out by Mr Justice Mummery President in United Arab Emirates -v- Abdelghafar [1995] ICR 65, later approved by the Court of Appeal in Aziz -v- Bethnal Green City Challenge Co Ltd [2000] IRLR 111?

18	I have carefully considered the medical and other evidence before me as to his claimed medical condition.  At page 58 of the Respondent’s bundle before me there is a report of an interview with the Applicant held in Governor Boyton’s office on 25 October 2002, the date appearing on the relevant Notice of Appeal.  That note begins:

“Governor Boyton enquired as to the short term memory loss caused by the medication.  
Mr Ibimidun stated that it wasn’t too much of a problem.”

19	Next, the return to work interview pro forma completed on 21 October 2002 by his line manager in which there is a reference to the Applicant being affected by short-term memory loss, for example he was supposed to come on Tuesday not Monday.  

20	Next the psychiatric report of Dr Khosroshahy dated 9 January 2003.  Under the heading “History of present illness” that doctor records:
“He believes that his major current symptom is his “memory problem”, e.g he mislays things or he states that he goes to the cash machine, does the transaction, but forgets to take the money”
That doctor gives no opinion as to the Applicant’s complaint of memory loss.  

21	Similarly Dr Giagounidis, reporting on 3 January 2003 records that after his return to work following sick leave between March and October 2002 the Applicant noticed problems with his memory.  Again, that doctor proffers no medical opinion as to the aetiology of that complaint.  

22	Those two medical reports were obtained for the purposes of the Tribunal remedies hearing heard on 15 January 2003.  

23	On the basis of that evidence I am not persuaded that the Applicant was suffering from a recognised medical condition which materially prevented him from lodging his Notice of Appeal in time.  No good excuse has been produced.  Accordingly I am unable to differ from the view expressed by the Registrar.  In any event the Applicant has a further difficulty.  The time for appealing against the Registrar’s Order is five days (EAT Rule 21).  This appeal was lodged on 9 July 2003, over four months out of time.  The only explanation put forward for the delay is that the Applicant was unaware of his right to appeal her decision.  I do not find that to be a satisfactory explanation, even allowing for the fact that the Applicant then appeared in person.  

24	In these circumstances I shall refuse an extension of time for appealing the Registrar’s Order and dismiss the underlying appeal against the Tribunal’s liability decision.  

25	(2)  PA/1479/02
The Tribunal’s power to review its decision is circumscribed by the grounds set out in Rule 13(1) of the Employment Tribunal Rules of Procedure.  This application was treated by the Chairman as an application under Rule 13(1)(e), that is the interests of justice required a review.  

26	The Chairman’s review decision which deals with the matters raised in the Applicant’s letter dated 9 October, a copy of which I have not been provided with, deals essentially with two matters.  First the complaint that witness orders were not granted at the commencement of the hearing.  As the Chairman points out, the remedy for a dissatisfied party whose application for witness orders has been refused is an appeal to the EAT rather than by way of review, but, secondly, she points out that during the course of the substantive hearing in this case it was not seen as necessary to revisit the application for witness orders in view of the evidence which was given.  As to the remainder of the application it appears to have related to the weight which the Tribunal gave to the evidence which it heard during the course of the substantive hearing.  In these circumstances it seems to me that no point of law is raised in this potential appeal against the first review decision, and since the EAT’s jurisdiction is limited to correcting errors of law alone section 21 of the Employment Tribunals Act 1996 I agree with the Registrar that the EAT has no jurisdiction to entertain this part of the appeal and accordingly no further action should be taken on it.  

27	(3) EAT/0471/03 - The Applicant’s appeal.  
By his Notice of Appeal dated 12 February 2003 the Applicant appeals only against the Tribunal’s remedies decision.  There is no appeal against the Tribunal’s refusal to entertain his application for a review of that remedies decision dated 28 January 2003, referred to at paragraph 1 of his skeleton argument in relation to this appeal.  We shall not permit an appeal out of time against that review decision..  

28	As to the substantive grounds of appeal against the remedies decision the Applicant takes these points:
(1) The award for injury to feelings was too low.
(2) The Tribunal used the wrong rate of interest.
(3) They were wrong not to award aggravated damages.
(4) They were wrong not to award him loss of earnings (particularly overtime pay) which he contended was due to time off work attributable to psychiatric injury caused by the act of victimisation found proved by the Tribunal in their liability decision.  

29	Although this appeal comes before us as an ex parte preliminary hearing at which only the Appellant is heard we have also taken into account the Respondent’s written submissions in a response pursuant to the Order of Judge McMullen QC dated 18 June and sealed on 24 June 2003 at paragraph 4.  Written submissions were also provided by the Respondent in relation to the Applicant’s later appeals EAT/0472/03 and EAT/0473/03.  

30	Turning then to the Applicant’s grounds of appeal against the remedies decision our conclusions are as follows: first we are far from satisfied that any arguable case is made out that the award for injury to feelings was too low.  Indeed we make further observations about the figure of £3000 when we come to deal with the Respondent’s cross-appeal.  

31	Secondly, we are satisfied that in accordance with the relevant regulations the Tribunal was right to take an average or median rate of interest over the relevant period in arriving at a figure of six and a half percent.  

32	Thirdly we think that this single one-off act of victimisation was not one of a kind which attracts an award of aggravated damages, and finally as to the claim for loss of earnings the Tribunal carefully considered the medical evidence and reached the permissible conclusion in our judgment, that the time off work was not attributable to the particular act of victimisation found by the Tribunal to have taken place.  In these circumstances we shall dismiss this appeal.  

33	(4) EAT/0471/03  - the Respondent’s cross-appeal against the remedies decision.
The challenge here is to the Tribunal’s award of £3000 compensation for injury to feelings arising out of the single act of victimisation found by the Tribunal, namely the way in which Principal Officer Gardiner raised the issue of the Applicant’s personal hygiene in front of Senior Officer Smith on 27 November 2000.  It is submitted that for this single act of victimisation the award made was arguably manifestly excessive and accordingly this appeal ought to proceed to a full appeal hearing.  

34	We note that the award falls towards the middle of the lower bracket of awards identified by Lord Justice Mummery in Vento -v- West Yorkshire Police [2003] ICR 318 paragraph 65.  We also bear in mind the principle articulated by Lord Justice Lawton in Skyrail & Coleman [1981] ICR 864,872B, that we should only interfere with such an award where the Tribunal has acted on a wrong principle of law, misapprehended the facts or for other reasons made a wholly erroneous estimate of the damage suffered by the complainant.  

35	Mr Morton submits:
(1) That the Tribunal did not focus on the precise act of victimisation as found in the liability decision.  We think that they did, see the remedies decision paragraph 6 - 7.
(2) They failed to strip out the degree of distress felt by the Applicant as a result of Mr Gardiner raising personal hygiene issues, as opposed to the fact of his raising it before Senior Officer Smith, itself the act of victimisation found proved.   
(3) It is said that a comparison may usefully be made between the size of this award and certain specimen awards for physical injuries to be found in the Judicial Studies Board Guidelines.

36	We have carefully considered those submissions and we accept that this award if anything was on the high side, however that is not the question for us on appeal.  The question is whether it is so high as to give rise to an arguable case that the Tribunal has reached that figure by way of a wrong principle of law or has reached a wholly erroneous estimate of the damage suffered by the complainant.  We bear in mind that the Tribunal had the advantage of seeing the Applicant give his evidence and therefore to form a judgment as to the degree of distress which he suffered as a result of victimisation found.  Our conclusion is that this award cannot arguably be said to be excessive in the way required for an appeal on this point to succeed and accordingly we shall also dismiss the cross-appeal. 

37	(5) & (6) EAT/0472/03 and EAT/0473/03
It is convenient to deal with these two appeals together.  The first concerns the Applicant’s Originating Application in Case No 1101284/2002 presented on 29 June 2002 and the Tribunal’s estoppel decision.  The history of this Originating Application is somewhat convoluted.  It is accurately summarised, we think, by Mr Morton in his written response at pages 100 - 101 of the Respondent’s bundle before the Appeal Tribunal.  I will not set out the detail in this judgment.  

38	The grounds of appeal appearing at page 70 of that bundle deal first with the estoppel decision.  Our conclusion on this part of the matter is that the Tribunal looked carefully at the allegations raised in that complaint.  They then compared them to the findings of fact made based on evidence in the liability decision and drew a distinction which we think is permissible as a matter of pure issue estoppel between those allegations on which findings were made after evidence was heard at the substantive hearing, and those which were not.  In these circumstances we can see no ground in law for interfering with the estoppel decision.  

39	Finally, so far as the second review decision is concerned, the Chairman accepted in her review decision that two mistakes had been made in the original decision, but we accept the Respondent’s written submission that those are not material to the outcome of the original estoppel decision.  It seems to us that the Applicant faces the same difficulty in relation to this appeal as in relation to the earlier review decision appeal.  

40	We are not persuaded that any grounds in law are made out for interfering with the review decision and consequently those appeals must also be dismissed.