APPEARANCES
| For the Appellant |
No appearance or representation by or on behalf of the Appellant |
| For the Respondents |
MR R NATHAN
(Consultant)
Nathans Employment Law Consultancy
15 Langdon Drive
Kingsbury
London NW9 8NS |
SUMMARY
Sex Discrimination: Injury to Feelings
Appeal against making of no award by Employment Tribunal of compensation for injury to feelings on claim for sex discrimination, where, on the Employment Tribunal's findings, the Claimant in any event was not lawfully entitled to work: no ground to disturb finding of Employment Tribunal.
THE HONOURABLE MR JUSTICE BURTON
- This has been the hearing of an appeal by Mr Assoukou, the Claimant, at the London (Central) Tribunal against the decision of that Employment Tribunal on his claims for unfair dismissal and sex discrimination against the Respondents, primarily the First Respondent, his former employer, Select Services Partners Ltd, albeit that a number of individuals are personally named.
- Mr Assoukou's claims were contained in an Originating Application which was put into the Tribunal and, in circumstances which do not now matter, the Respondent was late in putting in its Notice of Appearance. It put forward an explanation, but that explanation was not considered sufficiently persuasive by the Tribunal, or by the Chairman on a review, and so they were debarred from defending Mr Assoukou's claim.
- Mr Nathan, a representative who has today appeared before us on behalf of the Respondents on this appeal, the nature of which we shall describe, tells us that the judgment of this Appeal Tribunal in Pendragon [2005] IRLR 1671 had not yet been given at the relevant time, nor was Kwik Save Stores Ltd v Swain [1997] ICR 49, an earlier decision of this Appeal Tribunal under the old Rules, which Pendragon concluded still applied, drawn to the attention of the Tribunal. It appears to us that had the argument which found favour in Kwik Save and Pendragon both run, the Respondents might not have been debarred; because, although it would appear that their excuse, such as it was, for their delay, did not find favour with the Tribunal, nevertheless under the Pendragon principle if there is in fact merit in the defence, that is a factor, given the prejudice to a respondent which flows from being debarred from defending, which can be taken into account by the Tribunal. In this case, there was plainly merit because, even in this case where the Respondents had been debarred (although I note that Mr Nathan attended on their behalf), the Tribunal found a number of matters on remedy in their favour, and that is what has now led to the appeal.
- There were two findings by the Tribunal in relation to each of the Claimant's claims. So far as unfair dismissal is concerned, the Tribunal made no compensatory award, but made a basic award of £160.80. The basis upon which the Tribunal made no compensatory award is set out in paragraphs 5 and 6 of its judgment, namely by reference to a letter from the Secretary of State which indicated that, as from 29 October 2004, the Claimant was plainly prohibited from taking employment. It appears that the Claimant is someone who has entered the country on a basis which put him under the supervision of the Immigration and Nationality Department of the Home Office and, it seems, he was, at any rate at one stage, arrested and detained in that context.
- The finding by the Tribunal in paragraph 6 was that:
"the balance of the evidence suggests that Mr Assoukou cannot work and, without some contrary evidence, we can make no compensatory award"
noting further, in any event, that the Claimant had taken no steps to mitigate his loss, which was another reason for making no compensatory award.
- The effect of illegality on the contract was not, it appears, raised, even though the Tribunal would have been entitled to take that point of its own motion, given that the employment of the Claimant terminated on 20 October; and the date after which he could not be employed, on the evidence which the Tribunal found, was 29 October. But certainly any question of reinstatement which, it seems, had occurred previously (when a short period of employment by the Respondent of the Claimant had been terminated and recommenced on reinstatement) or continuation of the employment could not have arisen in the light of the findings by the Tribunal. The Tribunal made a basic award, but no compensatory award in relation to the loss of employment.
- So far as the Appellant's appeal against that finding is concerned, the powers of the Employment Appeal Tribunal under Rule 3(7) were operated. Rule 3(7) of the Employment Appeal Tribunal Rules enables a judge, if so minded, to conclude in relation to a Notice of Appeal, when it is considered on our sift, that there are no reasonable grounds disclosed by the Notice of Appeal for an appeal to go forward. Judge Burke QC so concluded in respect of ground 2 of the Notice of Appeal, which related to the failure of the Tribunal to make a compensatory award, while allowing to go forward the ground with regard to sex discrimination, which is before us today.
- That notification was given to the Claimant by letter dated 21 October 2005. It recorded the conclusion of Judge Burke QC which was as follows:
"In respect of paragraph 2 of the grounds of appeal, the Tribunal made a decision not to make any compensatory award on all the facts with appropriate reasons. There is no basis for alleging any error of law under this head".
Any appellant faced with a decision under Rule 3(7) has the right, within 28 days of the date when such notification is sent to him, under Rule 3(10) to express dissatisfaction in writing with that conclusion and seek a hearing under Rule 3(10). No such application was made by the Appellant. By a letter dated 21 November 2005 he wrote to the EAT as follows:
"I will not take any more step in the proceeding unless the Judge Burke QC who made the decision to dismiss the second ground of my appeal gives the provision that support such a decision".
In terms, that did not request a hearing under Rule 3(10), but, in any event, even construing it liberally, if it did, such request was, by reference to the 28-day period expiring on 18 November, three days out of time.
- There is considerable authority in the Court of Appeal and the Employment Appeal Tribunal about the importance of complying with the six week time limit for an appeal from the Employment Tribunal to the Employment Appeal Tribunal. It is unnecessary to repeat the references to those authorities in this judgment. Six weeks is a very generous period and, indeed, is three times the period allowed for an appeal in the High Court and County Court. But in relation to this further time of 28 days, this is of course, an additional period. There has already been the time to appeal, which was itself six weeks, and then there is the decision by the Employment Appeal Tribunal, and there is an entitlement for an appellant within a further 28- day period from that decision either to present a fresh Notice of Appeal under Rule 3(8) or to seek a hearing under Rule 3(10). Both of those opportunities are, however, limited by the 28-day time limit, which falls to be added to the already generous six week period for lodging a valid Notice of Appeal. The Employment Appeal Tribunal has interpreted that 28-day period strictly, for all the reasons for which we have interpreted the six week period strictly, but, in our judgment, for even stronger reasons, given that this is a yet further extension.
- Recently in the Court of Appeal in Morrison v Hillcrest Care Ltd [2005] EWCA Civ 1378 Sir Peter Gibson, confirming a judgment in this regard of HHJ Peter Clark sitting at the Employment Appeal Tribunal, has upheld that approach and, in terms, said that litigants in person must obey the rules as to time in this regard. It appears that the Claimant is sufficiently indignant about his feeling that ground 2 should not have been ruled out that he has not appeared today in order to pursue the appeal which he was permitted to pursue, in respect of ground 1: because he has said, and we have already quoted it: "I will not take any more step in the proceeding". A request for clarification was sent on behalf of the Registrar dated 22 November asking the Appellant, by return, to confirm his intention with regard to the appeal which was fixed for today, and has been fixed for some time, on an inter partes basis, and, as we have indicated, Mr Nathan is here to oppose the appeal. The Appellant, however, has not responded and not attended.
- That does not mean that we shall not proceed, even without the Appellant actually present, to consider the merits of his appeal in respect of ground 1 of his Notice of Appeal, relating to the sex discrimination claim. Because the Respondent was debarred from defending, it has not been possible to see any adjudicated reasoning by the Employment Tribunal as to what it concluded the sex discrimination claim consisted of. In the absence of the Respondent before the Tribunal, it would appear almost inevitable that the Claimant's claim should have succeeded, and it did. But the Tribunal, in assessing the remedy in respect of that claim, no doubt taking into account its findings earlier in the judgment, which we have recited, made no award of compensation in respect of the sex discrimination claim, concluding, in paragraph 8 of its judgment, that he had:
"not demonstrated any injury to feelings to us and we can therefore make no award in relation to injury to feelings".
- Doing our best to understand that judgment, with some assistance from Mr Nathan, and of course without the presence of the Appellant, it appears to us that the finding of sex discrimination was by reference to the fact that, on the case for the Appellant, the First Respondent (no doubt aided and abetted, on his case, by the named Respondents) dealt inadequately and, on his case, discriminatorily with him in relation to allocation of work as between him and others. It is possible that the dismissal itself was said to be discriminatory, but that is unclear. The findings of the Tribunal were, as we have indicated, that in any event this Appellant was not entitled to be employed at all by the Respondent after 29 October 2004; and it appears to us clear that any anger or frustration which the Claimant felt, would have been felt, and was felt, as to the arrangements to be made by his employers with regard to how he worked with them.
- Given the finding of the Tribunal that he could, in any event, not have continued to work with the Respondent, it does not appear, in those circumstances, surprising that the Tribunal awarded no compensation in respect of injury to feelings. He has no doubt felt, indeed it appears clear from his own recent letter to the Employment Appeal Tribunal that he continues to feel, angry and frustrated in respect of the fact that the Respondent does not employ him, but it appears to us that that does not flow out of the sex discrimination claim that was found in his favour by the Tribunal. That flows from the decision, if decision it was, which was found to have been taken by the Home Office, prohibiting him from taking employment. In those circumstances, we see no ground upon which the conclusion by this Tribunal to make no compensatory award can be challenged in law. In those circumstances, this appeal is dismissed.
