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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Farooqi v. South Warwickshire NHS Trust [2000] EAT 1093_99_0504 (5 April 2000) URL: https://www.bailii.org/uk/cases/UKEAT/2000/1093_99_0504.html Cite as: [2000] EAT 1093_99_504, [2000] EAT 1093_99_0504 |
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At the Tribunal | |
Before
MR COMMISSIONER HOWELL QC
LORD DAVIES OF COITY CBE
MRS R A VICKERS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
FULL HEARING
Revised
For the Appellant | MS ANNE HADLEY Solicitor BMA Legal Department |
For the Respondent | MR RAJEER THACKER (of Counsel) Instructed by: Mr R Lewis (Ref - 39088/RL/EN) Messrs Bindman & Partners Solicitors 275 Gray's Inn Road (DX - 37904 KINGS CROSS) London WC1X 8QF |
MR COMMISSIONER HOWELL QC:
1."On 21 April 1998, I was directed to work which I was not contractually obliged to do. I refused to do the work. That refusal has lead to the instigation of disciplinary proceedings against me.
2."My employer is discriminating against me because of my race.
3."I will provide further details of this later."
2. "Having been served with the originating application the Respondent's solicitors served a detailed request for further information dated 13 August 1998. The Appellant by then was represented by the British Medical Association and to that request those advisors responded on 9 September 1998. In that document they raised a number of matters which predated 21 April 1998. By a letter of 28 October 1998 the Respondent's solicitors pointed out that in his further pleadings the Appellant seemed to be adding further grounds of complaint which were time barred. They also submitted that the original complaint arising on 21 April 1998 was also time barred."
3. "The matter came before a Chairman Mr Ahmed sitting alone in Birmingham on 2 November 1998. By a decision with extended reasons dated 25 November 1998 that Chairman held that the originating application was not out of time and granted the Appellant leave to amend his originating application within 14 days, and the consequential amend to the Notice of Appearance. In his extended reasons he explained that the complaint arising on 21 April 1998 ought to be allowed to proceed but nothing is there said about the other matters of complaint raised in the further information which pre-dates the 21 April."
4. "There then followed correspondence between the parties and the Employment Tribunal including an application by the Respondents solicitors for areview
hearing to take place. That application was contained in a letter of 8 December 1998."
"….upon further hearing of the matter the decision…. dated 2 November 1998 was varies as follows: -
a) "All complaints of race discrimination prior to 23 April 1998 are out of time and are dismissed. The applicant's complaints of race discrimination relating to Friday afternoon working are in time and any allegation relating to Friday afternoon working (whether or not the actual complaint relates to a date prior to 22 April 1998) is in time together with any other incidents from 23 April 1998 to 22 July 1998. Any subsequent complaints must be subject of a fresh application.
b) Paragraphs (3) and (4) of the Decision of 2 November 1998 do stand and are confirmed."
Paragraphs 9 – 13 of the Tribunal's extended reasons explained their decision in the following terms, starting with a reference to the main decision of 2 November 1998 that the "Friday afternoon" issues could proceed:-
9. "We see no reason to alter that particular decision and indeed the respondent does not now invite us to do so. That is not where the main controversy lies. The controversy is in the order granting the applicant leave to amend its Originating Application under paragraph 2 of the decision of 2 November 1998. What the Chairman envisaged at the time the order was made was that the applicant would put some more flesh on the bones of his very brief IT1. He had promised to do so in his Origination Application. However, he had never actually fulfilled that promise and the intention of the tribunal was to allow him to do so.
10. "As it transpired, the applicant did not file any amended Origination Application. Instead he served a lengthy response to a request for written answers, making complaints going as far back as 1992. Not surprisingly, the respondents felt that this was a "backdoor" attempt to introduce complaints that would otherwise be well out of time. In correspondence between the parties and the tribunal, it was directed by letter of 9 December 1998 that any issue relating to amendment be dealt with at the commencement of the full hearing. Mr Patterson argued for the respondent at thereview
hearing that this should be dealt with earlier to save time and costs, Ms Miller for the applicant questions whether there would be any saving in time or costs, because the witnesses for the preliminary hearing would also be the same witnesses for the full hearing. Ms Miller does not accept that these amendments are in addition to the Friday afternoon complaint but are part of a pattern of continuing discrimination, with the final act culminating in the disciplinary procedure.
11. "In arriving at our decision, we have taken into consideration, the guidelines given by the EAT in Selkent Bus company –v- Moore [1996] ICR 836. We have considered the nature and content of the proposed amendment and intention behind the Order granting leave to the applicant to amend his IT1 on 2 November 1998.
12. "It seems to us that what the applicant is now attempt to do through the use of answers in the Replies to Requests for Further and Better Particulars is to bring in matters which would are otherwise considerably out of time. There is no connection it seems to us between these 'old' complaints and the Friday afternoon complaint. They are quite separate standalone complaints which should have been the subject of an application to a tribunal within normal time limits during the relevant periods. The Friday afternoon complaint is a separate and identifiable complaint which, although appears to have started before April 1998, was the subject of the disciplinary investigation which has yet to be concluded. The tribunal in allowing the applicant leave to amend it's Originating Application wanted more details of the Friday afternoon complaint and that was the purpose and intention. The respondents were justified in feeling that the purpose of that Order was being used as a back door attempt to revive out of time complaints.
13. "In thejudgement
of this tribunal, it is not just and equitable to extend time to allow the applicant to bring complaints prior to April 1998 in this application. To do so would cause considerable hardship to the respondent in having to investigate matters going back six years in some cases. We feel that the fairest course is for all complaints prior to 23 April 1998 to be dismissed. We have seen in the documentation some reference to complaints of working Friday afternoon in 1997 and insofar as those matters are concerned, they are not out of time because that is an ongoing issue. The applicant will therefore be able to raise, at the main hearing, complaints relating to Friday afternoons working even if they pre-date 23 April 1998. Equally the applicant is entitled to raise matters of complaint from 23 April 1998 to 22 July 1998 (the date the Originating Applicant was received) so long as they are fully particularised in witness statements prior to the full hearing. Any other complaints beyond those parameters will need to be the subject of a fresh application, if necessary."
13. The initial complaints and the material to which the Tribunal were referring were in a document dated 9 September 1998 at pages 21 – 24 of our appeal file. The particular complaints the appellant sought to have added to the race relations and victimisation proceedings started on 22 July 1998 by reference to what had happened on 21 or 22 April, were identified under 14 separate headings in paragraph (3) at pages 22 – 24. Looking at those it is hard to see any immediate connection between many of them and the alleged discrimination comprised in requiring Dr Farooqi to work from the Friday afternoon operating shifts after his promotion as he had done before. They consisted of a number of complaints, many without any dates at all, described as "incidents" including denial of a salary advance or bridging loan on his first joining the Trust, miscalculation of his past annual leave entitlement, failure to provide him with a substantive contract of employment when he was first appointed to staff grade within the time scale he wished, alleged "implications", which he understood to have been made against him relating to whether he should work Christmas and Easter Bank Holidays, failure to place him on the maximum salary scale for an Associate Specialist thereby causing what was alleged to be financial loss, and so forth.
Her argument was that the long catalogue of alleged injustices or slights, or acts of discrimination, which Dr Farooqi sought to introduce was one continuing piece of discriminatory practice, which ought to be regarded for this purpose as one continuing act right down to 22 April 1998 so to bring it within the three month time limit before the lodging of the application. She drew our attention to what was said by Mummery LJ then the President of this Tribunal, in Owusu v London Fire and Civil Defence Authority [1995] IRLR 574 at paragraph 21 on page 576, in the context of a dispute over whether the continuing failure to re-grade the complainant amounted to a "continuing act", as follows:
"The position is that an act does not extend over a period simply because the doing of the act has continuing consequences. A specific decision not to upgrade may be a specific act with continuing consequences. The continuing consequences do not make it a continuing act. On the other hand, an act does extend over a period of time if it takes the form of some policy, rule or practice, in accordance with which decisions are taken from time to time. What is continuing is alleged in this case to be a practice, which resulted in consistent decisions discriminatory of Mr Owusu. It would be a matter of evidence for the Tribunal as to whether such a practice as is alleged in fact exists."
"Whenever the discretion to grant an amendment is invoked, the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment, against the injustice and hardship of refusing it."