Appeal No.  EAT/1108/02/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 July 2003

Before
HIS HONOUR JUDGE PETER CLARK
MRS R CHAPMAN
MR S M SPRINGER MBE

MR TUNDE APELOGUN-GABRIELS	APPELLANT

(1) LONDON BOROUGH OF LAMBETH (2) MR B HOLMES	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	Mr Tunde Apelogun-Gabriels
(in person)
	
For the Respondent	Mr Richard Harrison
(of Counsel)
London Borough of Lambeth Legal Services
Room 21
Lambeth Town Hall
London SW2 1RW	

HIS HONOUR JUDGE PETER CLARK:

1.	This Appeal raises once more the question as to the proper application of the Rule in Henderson and Henderson (1843) 3 Hare 100.

Procedural History

2.	The Applicant Mr Apelogun-Gabriels is black and of Nigerian racial origin.  He commenced employment with the London Borough of Lambeth on 2 April 1999 and since that time has worked in the Finance section of their Social Services Department.  During the course of his employment he has presented three complaints to the London South Employment Tribunal.  

3.	The first complaint Case 2303 60/98.  On 26 January 1998 he presented a complaint of Direct Race Discrimination, Constructive Dismissal, Breach of Contract and Breach of Health and Safety Regulations against Lambeth naming also two of Lambeth’s employees, Mr Bowry and Mr Goode as Respondents.  That complaint came before a Tribunal chaired by Mr J Warren on 7 May 1998. By a Decision with Extended Reasons promulgated on 13 May 1998 the Direct Discrimination complaint was dismissed on the ground that all allegations raised were out of time and it would not be just and equitable, that Tribunal concluded, to extend time.  The remaining complaints were dismissed on withdrawal by the Applicant.  

4.	Against that Decision to dismiss the race discrimination complaint, the Applicant appealed to the EAT (EAT 0148/00).  On 26 February 2001 at a Preliminary Hearing a Division presided over by Lindsay (P.) dismissed that Appeal.

5.	The second complaint, Case no. 2304762/98.  This complaint was presented on 16 November 1998.  On 2 September 1999 a Directions Hearing took place before a Chairman Ms C Hyde.  On that occasion the Applicant was required by an earlier Order of Mr Warren sitting alone on 17 April 1999 to amend his Originating Application to include all claims arising as at that date, without objection by the Respondent.  He did amend his Originating Application adding further matters which he set out in a letter to the Tribunal dated 13 August 1999.  Those matters were heard by a Tribunal chaired by Mr D Booth between 17 – 26 November 1999.  All complaints were dismissed by a Decision promulgated on 2 December.  

6.	The third complaint (Case no. 2301288/00).  By an Originating Application presented on 14 March 2000 and later amended, the Applicant complained of direct race discrimination and victimisation by Lambeth and by its employee Mr Holmes.  The nature of the case included the following material allegations.
(1)	That on 23 August 1999 Mr Holmes conspired with Mr Bowry, a Respondent to the first complaint, to induce the latter to raise complaints against the Applicant.
(2)	That on 17 August 1999 Mr Holmes made an inappropriate request of the Applicant for a computer password.  
(3)	A further head of complaint related to a grievance raised by the Applicant against Mr Holmes in August 1999.  That grievance was finally determined by Lambeth in a Report dated 10 March 2000 although the Applicant tells us that that Report was backdated.

7.	An issue arose as to whether the grievance complaint was presented in time.  A Tribunal chaired by Mr D Milton sitting on 13 September 2000 decided that that complaint ought to proceed basing themselves on certain observations made by Morrison (P.) in Aniagwu v London Borough of Hackney (1999) IRLR 303.

8.	Against that Decision Lambeth appealed and on 26 February 2001, the Division presided over by Mr Justice Lindsay in EAT 1397/00 allowed that Appeal and remitted the question of limitation to a fresh Tribunal for re-hearing.  That further Hearing has yet to take place.

9.	In delivering Judgment in that Appeal the President drew attention to the apparent conflict in approach between Aniagwu and the later EAT Decision in Robinson v the Post Office (2000) IRLR 804  (a Division presided over by Mr Justice Lindsay).  In the present case the President followed his earlier Decision in Robinson.

10.	Against that EAT Decision the Applicant sought permission to appeal to the Court of Appeal.  That application came before Peter Gibson, Chadwick and Longmore LJJ on 22 November 2001.  Permission was refused.  In giving the leading Judgment of the Court, Peter Gibson LJ affirmed that the approach in Robinson should be followed in preference to that in Aniagwu.  Chadwick and Longmore LJJ agreed.  The Judgments are reported at (2002) IRLR 116.

11.	However, that was not the end of the matter.  A point was taken by Lambeth that what we have described as the two material allegations, dated 17 and 23 August 1999, ought to have been included by way of amendment in the second complaint when the Directions Hearing in that case took place before Ms Hyde on 2 September 1999 and have been the subject of determination at the full hearing of that complaint before the Booth Tribunal in November 1999.  The Henderson v Henderson point.

12.	That point came before a Tribunal chaired by Mr A M Snelson sitting on 22 August 2000.  By a Decision with Extended Reasons promulgated on 4 September 2000 (the relevant Decision) that Tribunal ruled that the material allegations ought to have been included in the Hearing of the second complaint by the Booth Tribunal and that in accordance with the rule in Henderson v Henderson the Applicant was precluded from raising them in the third complaint.  

13.	Against that Decision the Applicant brings the present Appeal (EAT 1108/02).  At a Preliminary Hearing held before a Division presided over by Rimer J sitting on 15 January 2003, the Appeal was permitted to proceed to this full bilateral Hearing on what appeared to be a limited ground, identified in the Judgment of Rimer J delivered on that day.  In that Judgment reference is made to the House of Lords’ Decision in Johnson v Gore Wood & Co. (a firm) (2001) 2 WLR 72, and in particular the speech of Lord Bingham, in which his Lordship stated that the real question in cases such as the present where the Rule in Henderson v Henderson is invoked, is whether or not the second set of proceedings involves an abuse of process.  The EAT, sitting on the Preliminary Hearing in the present Appeal, considered it arguable that the Snelson Tribunal, having made no mention of Johnson in their reasons, failed to consider that crucial question.

The Appeal

14.	We begin with the Snelson Tribunal’s reasoning.  The Tribunal directed themselves as to the principle of issue estoppel derived from Henderson v Henderson and more recently applied to employment law by the Court of Appeal in Divine-Bortey v London Borough of Brent (1998) IRLR 525.  They perceived the object of the rule to be the avoidance of a multiplicity of actions, save in exceptional circumstances.  A claimant is required to bring the whole of his case before the Court or Tribunal at one time.

In concluding that the material allegations fell foul of the rule, the Snelson Tribunal took into account the fact that Mr Warren had, on 17 April 1999, required the Applicant to bring all his complaints forward in the second complaint; that a Directions Hearing took place before Ms Hyde on 2 September at which the Applicant was granted permission to amend the second complaint; that the material allegations were dated 17 and 23 August 1999 and inferentially that they could and should have been raised before the Booth Tribunal in November 1999 and determined by that Tribunal.

15.	Next, we turn to the Order made by Mr Justice Rimer’s Division at the Preliminary Hearing.  By paragraph 3, the Applicant was granted permission to amend his Notice of Appeal within 14 days. (no draft amendment apparently then being before the EAT) with liberty to the Respondents to apply to discharge that Order.  The Applicant did produce an amended Notice dated 27 May.  That was well outside the time limit imposed.  Moreover, it was not confined to the single ground identified in the Judgment of Mr Justice Rimer.  Nevertheless, no application was made by the Respondents to discharge the Order or take objection to the late delivery.  Instead they lodged a Respondent’s answer to that amended Notice dated 9 July 2003.  Thus we must consider those new grounds.

16.	Having heard the Applicant’s submission we have discerned four points which he raises:

(1)	The rule in Henderson v Henderson does not apply, because the parties to the second and third complaints were different.
(2)	He only raised his grievance relating to, among other things, the material allegations on 31 August 1999.  He could not be expected to then apply to amend the second complaint to add the material allegations and Mr Holmes as a Party at the Directions Hearing before Ms Hyde held on 2 September 1999.
(3)	It was not an abuse of process to wait until his grievance was resolved before launching fresh proceedings raising the material allegations in circumstances where he was dissatisfied with the outcome of his internal grievance.
(4)	It was not sensible to add to the Booth Hearing by raising not only fresh allegations but also involving a new Party, Mr Holmes.

Dealing with those points:
(1)	Lambeth was a party to both the second and third complaints, as it had been to the first complaint.  The addition of its employee, Mr Holmes to the second proceedings does not detract in our view, from the principle in Henderson v Henderson, that is that the Parties must bring the whole of their case before the Tribunal.  Mr Apelogun-Gabriels emphasises the reference here to ‘Parties’; but it is the complainant, the Applicant, who brings these claims.  There is no counter claim by the Respondents.  It is clear to us that, following the Warren Direction, all outstanding claims up to the Directions Hearing before Ms Hyde on 2 September were to be brought forward.  Indeed Ms Hyde granted the Applicant permission to amend the second Originating Application to add complaints, which as we have mentioned were raised by him in a letter dated 13 August 1999. (her reasons paragraph 29).  Accordingly, we reject this submission advanced by the Applicant.
(2)	A distinction must be drawn between his complaint that the grievance was not properly dealt with by Lambeth to his satisfaction, a matter which has yet to be resolved following remission by Mr Justice Lindsay on the Respondent’s Appeal in EAT 397/00 and the underlying complaints, the material allegations.  Boldly the Applicant submitted that, although aware of the three months primary limitation period, he deliberately chose to use the internal Grievance Procedure instead of lodging a complaint within time.  

As the Applicant points out, this Appeal is not concerned with time limits.  However, it is difficult to imagine a more blatant example of abuse of process than an Applicant who, with current proceedings in train, deliberately chooses not to add existing complaints (the material allegations) within time and in those proceedings, but to await the outcome of an internal grievance based in part on those matters and then to commence fresh proceedings if dissatisfied  with the outcome of that grievance.

(3)	The point raised by Mr Justice Rimer at the Preliminary Hearing.  True it is that the Snelson Tribunal make no reference to the House of Lords’ Decision in Johnson v Gore Wood.  Instead it was submitted by Counsel for the Respondents, then Mr Edwards, that they should ask themselves the question could and should the Applicant have raised the material allegations in the second complaint before Ms Hyde and later the Booth Tribunal (reasons paragraph 10).  It appears that the Snelson Tribunal answered that question in the affirmative.

Given the clear reference to abuse of process in the Judgment delivered by Mr Justice Lindsay in EAT 1397/00 (transcript paragraph 22) a Judgment which the Snelson Tribunal considered (see their reasons paragraph 3) it seems to us that this Tribunal did ask itself the correct question as formulated by Lord Bingham in Johnson.  Even if the contrary were sustainable, and the Tribunal fell into error, we should have no hesitation in exercising our powers under s.35 Employment Tribunals Act 1996 in concluding that, applying the principle of law adumbrated by Lord Bingham in Johnson, the Applicant’s conscious decision not to apply to add the material allegations to the second complaint was an abuse of process.  He could and should have done so.

(4)	We can see no difficulty on the facts of this particular case in adding Mr Holmes, an employee of Lambeth to the second complaint.  On the contrary it was clear that Lambeth wanted all outstanding matters put before Booth Tribunal as the Snelson Tribunal found (their reasons paragraph 12 (3).

In these circumstances we shall dismiss this Appeal.  In doing so we would echo the words of Mr Justice Maurice Kaye in Augustine v London Borough of Waltham Forest (EAT 1135/98 17 June 2002 unreported) a case which raised a similar Henderson v Henderson point to that now  before us.  At paragraph 15, His Lordship said:

“It follows from all that we have said that in our Judgment the Preliminary issue raised here which we shall continue to refer to as the Henderson v Henderson point must be resolved in favour of Waltham Forest.  In reaching that conclusion we are mindful of, not only this, but a number of other cases in which successive applications in relation to discrimination have been lodged by persons who remain employees of the same employer, leading to multiple Hearings before Employment Tribunals and sometimes a labyrinth of Tribunal Hearings and Appeals arising out of the same history.”

We acknowledge that sometimes this cannot be avoided, particularly where the later applications relate to material which only emerged and incidents which only occurred after the original Hearing.  However, where at the date of a particular Hearing a party is in a position to make allegations, not only those contained in the original IT1 but others which have come to light in the meantime, those parties should be encouraged to bring those allegations in those proceedings so that the matter can be resolved all at the same time because in most cases it is in a real sense all part of the same matter.  It is our experience that Employment Tribunals usually adopt a liberal approach to any necessary amendments provided that no injustice is thereby caused.  Those remarks, it seems to us, fit precisely the circumstances of the present case.