|For the Appellant
||MS H PLATT
Messrs Alomo Solicitors
Romford RM1 2LX
|For the 1st Respondent
||MR N FETTO
London Borough of Southwark Legal & Democratic Services South House
30-32 Peckham Road
London SE8 8PX
|For the 2nd Respondent
||MR A TABACHNIK
Messrs Capsticks Solicitors
77-83 Upper Richmond Road
London SW15 2TT
Statutory Discipline and Grievance Procedures – Whether infringed
Practice and Procedure – Application/claim
The ET struck out the employee's claims against Respondent (1), her employers, and Respondent (2), the managers of the unit in which she worked, that she had been the victim of race discrimination and rejected her review application. The basis of the strike-out was that (1) no grievance alleging race discrimination had been made before presentation of the claim (2) there was no pleaded case against Respondent (2). Held as to (1) the Employment Tribunal, at review, found that a document of 24.5.06, together with a document of 9.10.06, amounted to a sufficient raising of a grievance but that they could not consider the former document under Rule 34(3)(e) because it was not before the Employment Tribunal at the original hearing. Following Flint v EEB  ICR 395, the Employment Tribunal erred in law in not taking the former document into account: there were special circumstances (2) the pleading was sufficient to inform Respondent (2) that a claim was being brought against them under 33(i) of RRA 1976, as aiders of R(1)'s discrimination.
HIS HONOUR JUDGE BURKE QC
- Ms Henry brings two appeals against decisions of the Employment Tribunal sitting at Ashford, in the person of Mr Barry as employment judge sitting alone. The first decision, made at a pre-hearing review on 18 April 2007, was that her complaints of race discrimination be struck out. The second decision, made at the hearing of a review application, was that (with the exception of an adjustment to the previous order that her complaints should be struck out so that the order should read that those complaints were dismissed) the application for a review of the earlier decision was rejected.
- Ms Henry was, at all material times (and may still be, so far as I am aware) employed by the first Respondents, the London Borough of Southwark, whom I shall call "Southwark", as a Social Worker. She worked at the Bethlem Royal Hospital in Beckenham, Kent which is an adolescent psychiatric secure unit. That unit was managed by the second Respondents, South London and Maudsley Mental Health Trust, known, the papers tell me, somewhat unflatteringly as "SLAM"; but I will call them "the Trust".
- The unit was operated jointly by both Southwark and the Trust. The Team Manager of the Child Mental Health team, of which the unit was part, Mr Weissman, is, I am told, a Southwark employee; but the Unit Manager, Ms Meechan, is or was a Trust employee. It is not at all surprising in the case of an adolescent psychiatric secure unit that there would need to be Trust employees to look after the health care side and Southwark's employees to look after the social care side of the unit's functions.
- It seems that, of the other employees involved in the unit, some were Southwark employees and some were Trust employees. No facts have yet been determined because the claims were struck out or dismissed without any evidence being heard; what I have said about the management and staffing of the unit is based on what I have been told and read in what I will call, for present purposes, "the pleadings" rather than on any evidence or factual determination by the Tribunal; but the picture, in broad terms, appears to be relatively clear.
- In her claim form, Ms Henry, under section 6, said this:
"On the 31st March 2006 I was verbally assaulted for the 3rd time by a head teacher, Bronwyn Jones. Two previous incidents were reported with no action taken even when a witness came forward.
A complaint was raised against me on the 17th July 2006 when I asked a fellow supervisor to provide assistance to what I viewed was an under achieving supervisee Sydney Dennis. A full investigation was launched"
At section 10 of the claim form, under the heading "Other Information", she said:
"On the 23rd October 2006 I met with the head of Personnel and my then line manager Roger Weissman and unison representative Kim Hamilton met. I had written to Roger Weissman about his treatment of me and his collusive behaviour with Anna Meechan, unit manager which allowed the abusive situations to continue. The abusive situation continued at work and my recent complaint has gone ignored."
- Southwark, in their ET3, set out a very detailed factual case in relation to each of the matters raised by Ms Henry. At paragraphs 32 to 34, they took the point that the claim form had been issued on 9 December 2006 but no grievance had been raised until 11 December 2006.
- They therefore sought a rejection of the claims pursuant to Rule 10 of schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. Why they sought a strikeout under Rule 10, as opposed to dismissal for want of jurisdiction, is not clear; but it does not matter for present purposes. Plainly, Southwark were taking the point that Ms Henry had not complied with the provisions of section 32 of the Employment Act 2002.
- The Trust, in their ET3, admitted that Ms Meechan and another person named by Ms Henry in her claim form, Mr Judd, were employees of the Trust; but they said, at paragraphs 3 and 5, that they did not understand the nature of the claim made against them, that they were not the employers of Ms Henry and that they required particulars of the facts and matters relied upon against them, although they did not in fact make any request for such particulars before the events to which I am going to turn occurred.
- Those events started with the pre-hearing review. At that pre-hearing review, the Tribunal decided two preliminary points. The first was whether there had been compliance with the requirements of section 32 of the 2002 Act. The second was whether there was, in the claim form, any claim against the Trust.
- Ms Henry, at that hearing, was unrepresented, as she had been up to that point; and the first and second Respondents were represented by Counsel and a solicitor respectively. It was not in issue that a formal grievance had been raised on 11 December; but that was, of course, too late to amount to compliance with section 32(2) and (3) of the 2002 Act which provides as follows:
"32(2) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if—
(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and
(b) the requirement has not been complied with.
32(3) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if—
(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 has been complied with, and
(b) less than 28 days have passed since the day on which the requirement was complied with."
- When both subsections are considered together, it is obvious that any complaint made two days after the presentation of Ms Henry's claim was too late to amount to compliance with section 32 so far as that claim is concerned; or, if another claim were to be presented later, it was too early.
- In the course of the hearing, Ms Henry referred not only to the letter of 11 December which raised a formal grievance but also to a letter of 2 November which she had sent to Ms Meechan, with a copy to Mr Weissman, under the title "Formal Complaint". The employment judge found, at paragraph 3 of his first judgment, that that document did not amount to a complaint of race discrimination; and that conclusion is not challenged.
- It is accepted on behalf of Southwark and the Trust that at the hearing Ms Henry also sought to rely on a letter which was addressed to Mr Weissman, with copies to other employees (who I am told were Southwark employees), dated 19 October 2006. That document is not referred to at all in the employment judge's first judgment which was, insofar as it dealt with the section 32 issue, based on the documents of 11 December and 2 November.
- The employment judge said, having referred to the principles set out in Canary Wharf Management Committee v Edebi  IRLR 416, that Ms Henry had failed in those documents to refer to race discrimination and that, therefore, they did not satisfy the requirements of section 32. For that reason, he struck out the claims against Southwark.
- As to the second issue, whether there was set out in the claim form a basis for a claim against the Trust, the employment judge said, at paragraph 7, simply this:
"7. In relation to the claim against the Second Respondent, Ms Elliot submitted that there should be no basis for such a claim, the Claimant not being an employee of the Second Respondent. The Chairman accepted this submission and accordingly struck out the claim against the Second Respondent."
- Ms Henry applied for a review. At the hearing of her application she was represented, on this occasion by Ms D'Souza of Counsel. Southwark were represented, as they have been today, by Mr Fetto of Counsel; and the Trust were represented by a solicitor.
- Ms D'Souza took three points. Firstly, she submitted that the letter of 19 October 2006 on its own or, alternatively, when read together with notes of a meeting which Ms Henry had revised and therefore contributed to, dated 24 May 2006, amounted to sufficient compliance with section 32. She further submitted that the 24 May document should be taken into account by the Tribunal, although it was not put before the Tribunal but was in existence at the time of the original hearing, on the basis that the interests of justice required it.
- Secondly she submitted that the claims should not, in any event, have been struck out when no factual assessment of their merits had been made. Thirdly she submitted that the claim form set out sufficiently the allegation that the Trust were liable to her under section 33(1) of the Race Relations Act 1976 which provides as follows:
"33 Aiding unlawful acts
(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description."
- The employment judge accepted the second submission and adjusted the original order in the manner I have already described. As to the first submission, he concluded that there were no special or additional circumstances which would enable him to take the May document into account when considering the exercise of his discretion so to allow the review in the interests of justice, pursuant to Rule 34(3)(e) of the Tribunal Rules although, had he done so, the May document together with the October letter, would have amounted together to sufficient compliance with the requirements of section 32.
- It is probably helpful to set out in its entirety what the employment judge said by way of conclusion upon the first submission in paragraph 9 of his review judgment, in these terms:
"9. The Tribunal finds the limited scope of rule 34(3)(e) is not wide enough in the circumstances of this case to permit a review of its decision and allow the claim to proceed. That decision was on the basis that section 32(3) of the 2002 Act had not been complied with. To permit the matter to be reopened would require the Tribunal to consider the notes of 24 May 2006. These were available at the time of the previous hearing and their relevance was or should have been apparent. The special or additional circumstances contemplated by Phillips J in Flint, in cases where evidence previously available could none the less be considered by the Tribunal, are here present due to the fact that the Claimant was unrepresented. The specific point relating to the notes of 24 May 2006 could have been brought before the Tribunal by the Claimant. Accordingly therefore the Tribunal finds, with some regret for it has considerable sympathy with the Claimant, that this ground of the application has failed. Had it been necessary to decide the point, the Tribunal would have concluded that the notes of 24 May 2006 could be taken to raise a grievance since on the face of the record of the discussion the nature of the grievance being raised must have been apparent to Mr Weissman, who was the Manager of the Claimant by agreement between the Respondent. Taken with the letter of 9 October 2006, which did not in itself amount to a grievance, there after there could be little doubt in the matter on the part of the Respondent."
- As to the third submission, he said this at paragraph 10:
"10. The Tribunal also concludes that the claim against Second Respondent under section 33 of the 1976 Act does amount to a new claim, not expressly brought in the original claim and not raised at the Pre-Hearing Review, and is on its face brought out of time."
The pre-trial review appeal grounds
- The Notice of Appeal sets out four grounds. They are, in broad terms, coincident with the three points argued on behalf of Ms Henry at the review hearing, with the addition of a further ground against the Trust that the Tribunal failed to consider adequately or at all whether Ms Henry was in the Trust's employment, within the definition of "employment" in section 78(1) of the Race Relations Act , namely:
"Employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour ..."
- Ms Platt, who has appeared for Ms Henry today, developed in her Skeleton Argument only the second of those four grounds, which attacked the Tribunal's decision to strike out the claims on the basis that striking out was an inappropriate step. I have to say that, on reading Ms Platt's skeleton, I do not understand why that point was being pursued when the employment judge, at the review hearing, agreed that he had erred in that respect and corrected the error.
- I also do not understand why Ms Platt should wish to attack the employment judge's decision in his review judgment as to the existence of a sufficiently pleaded case against the Trust while not addressing the same point in relation to the original judgment; but Ms Platt has today made it clear that, so far as her points against the Trust are concerned, they are the same points, whether taken under the head of appeal against the original judgment or the appeal against the review judgment; and that is, of course, correct.
- She also acknowledges that, in her Skeleton Argument, she should have argued the first point raised at the review hearing or that part of that point which she now needs to argue, namely, that the October document of itself amounted to a sufficient compliance with the requirements of section 32. Without objection from Southwark or the Trust, Ms Platt has, indeed, developed these arguments while, very sensibly, not pursuing that part of her appeal which relates to the initial decision to strike out the claims.
The review appeal grounds
- I have already, in effect, previewed two of the grounds of the appeal against the review judgment, namely, the two grounds against the decision in favour of the Trust which are put forward in the appeal against the first judgment. So far as Southwark are concerned, Ms Platt repeats the arguments as to the sufficiency of the October document to comply with the requirements of section 32 and submits that the employment judge ought to have found that there were sufficient special or additional circumstances to enable him to take the May document into account.
Discussion and Conclusions - Southwark
- Southwark do not challenge the employment judge's conclusion that, if the May document and the October document are considered together, they amounted to sufficient compliance with section 32 of the 2002 Act. Therefore, the issue I have to decide, so far as Ms Henry's claims against Southwark are concerned, are these; (1) whether the employment judge erred in law in his conclusion that the October document was not sufficient compliance of itself and (2) whether the employment judge erred in law in declining to consider the May document and, as a result, confirming his original decision that section 32 had not been complied with and that therefore there was no jurisdiction in the Tribunal to hear Ms Henry's claims against Southwark.
- As to the first issue, Ms Platt submits that, if the October document is read in full, it can be seen to put forward a complaint of race discrimination. She has drawn my attention to numerous passages on each page of that document which it is unnecessary for me to set out verbatim. The high water mark of those passages is a reference to "racism" which appears towards the top of the second page. In those passages within the document read as a whole, Ms Platt submits, is to be found a sufficient statement of a complaint of race discrimination against Ms Henry.
- Mr Fetto submits that the relevant principles are clear from the decision of the Employment Appeal Tribunal in Canary Wharf Management Committee v Edebi, that the employment judge applied the correct principles, that whether the October document met the requirements of section 32, applying those principles, was a matter of fact for him and that it had not been shown that his view of the document was perverse or otherwise based on error of law.
- On this issue, I prefer the submissions of Mr Fetto. The relevant principles can, for present purposes, be found succinctly stated in Canary Wharf Management Committee v Edebi, at paragraph 15. In that case, the Employment Appeal Tribunal (the President, Elias J, sitting alone) dealt comprehensively with the principles which need to be considered when a question arises as to whether a particular document is or is not sufficient to amount to compliance with section 32. It is not necessary for me to go into any further detail beyond what is said in paragraph 16 in these terms:
"16. Where the standard procedure is applicable, that merely requires that there should be the statement of the grievance in writing sent to the employer. However, since as I have indicated a grievance under the regulations means a complaint about action which the employer has taken or is contemplating taking in relation to him, it follows that the statement of the grievance is simply a statement of such a complaint. It must of course be a statement of the same complaint as the employee is seeking to have determined by the Tribunal."
- The employment judge (for reasons which I do not understand) did not refer to the October document in his original judgment, although it is common ground that it was put before him and was relied upon. However, when at the review hearing, he did consider it, he was, in my judgment, entitled to take the view that it did not amount to a sufficient statement of a complaint of race discrimination to amount to compliance with section 32. The only reference in it to race discrimination, at the top of the second page, is to a member of staff having practised racism on the unit on two occasions involving young people. I infer that the young people were patients; but even if that is wrong, there is no suggestion that either of them was Ms Henry. That complaint is not a complaint of discrimination against Ms Henry but a complaint by her of discrimination against others. The remainder of the passages relied upon do not suggest that Ms Henry was complaining of race discrimination against her.
- I have no doubt that, had the employment judge considered the October document in his first judgment, he would have been entitled to conclude and would, in all probability, have concluded that it was insufficient, as he concluded at the review hearing. He was entitled to do so; and this ground of appeal must fail.
- I turn therefore to the second limb of the appeal so far as Southwark are concerned. Ms Platt accepts that, when an application is made for a review under Rule 34(3)(e), in which the Tribunal has to consider whether the review should be granted in the interests of justice, there are restrictions in principle on the circumstances in which a Tribunal can take into account evidence which was available at the time of but was not put before the Tribunal at the original hearing. However, she submits that those restrictions should not be so confined as to drive Ms Henry from access to justice in the circumstances of this case. She submits, in reliance on Flint v Eastern Electricity Board  ICR 395, that the Tribunal did have power to consider, and should have considered the May document, there being special or additional circumstances, namely, (1) Ms Henry was unrepresented at the original hearing, (2) the issue of compliance with section 32 was not simple, straightforward and clear, as was the issue in Flint itself, but was difficult and complex and (3) although the May document was not put before the Tribunal at the original hearing by Ms Henry, having regard to the overriding objective and the need therein that the parties should be treated as on an equal footing, Southwark should have disclosed and drawn the Tribunal's attention to the May document which they undoubtedly had and were aware of (for it is referred to in their ET3).
- Ms Platt submits that the Tribunal failed to consider these circumstances as a whole, considered only the fact that Ms Henry was unrepresented and did not consider the wider context. She further submits that the effect of the overriding objective, now part of the rules of the Employment Tribunal by virtue of Regulation 3 of the 2004 Regulations, has been to modify the tightness of the principles to which I have just referred so as to achieve broad fairness and justice.
- Mr Fetto submits that the employment judge correctly directed himself as to the principles which applied to the exercise of his jurisdiction under Rule 34(3)(e), namely, that Ms Henry had to establish special or additional circumstances and that, having correctly applied the legal principles, the employment judge's decision was thereafter one of fact.
- He accepts that the fact that Ms Henry was unrepresented at the original hearing could, in law, have been regarded as a special or additional circumstance; but the Judge had taken that into account; he had taken all the other factors into account (with the exception of the disclosure point); and he alone, apart from Ms Henry, had the opportunity to see and know what had happened at the original hearing. There was no basis on which the exercise of his discretion could be disturbed.
- Mr Tabachnik, on behalf of the Trust, adopted the arguments put forward by Mr Fetto. He has an interest in those arguments because it may be (and I am most certainly not called upon to decide whether it is so) that any surviving case against the Trust could not be the subject of jurisdiction in the Tribunal if Ms Henry had not complied with section 32, albeit that the Trust was not, subject to Ms Platt's argument on that point, to which I shall come later, an employee of the Trust.
- In resolving these arguments, I refer first to the issue of Southwark's alleged duty to disclose the May document at the pre-hearing review. Of course, when a litigant is unrepresented and his professional opponent is aware of a statutory provision or an authority to which the litigant in person has not referred which enhances the litigant's case or undermines the opposition's case, that professional opponent is bound to draw the material to the attention of the court or Tribunal; and if a document is in his or his client's possession which, plainly, has the same effect, he is under a duty to disclose it.
- However, that well-known principle, in my judgment, did not require Counsel then appearing for Southwark to disclose the May document at the pre-hearing review. It is not a document which is so clearly contrary to Southwark's case that there was no compliance with section 32 that any such duty arose. It pre-dates the issue of proceedings by over six months and, because of its remoteness from many of the events on which Ms Henry relies, does not refer to them. I do not know whether Counsel appearing on that occasion for Southwark had the document and, if so what, if anything, she believed about it or what went through the minds of Southwark's representatives about it. Those factual questions have not been investigated; but on the face of what I can see, I conclude that no duty, as alleged, has been established. In any event, the duty point was not taken before the Tribunal at the review hearing. The Tribunal cannot properly be criticised for failing to take into account a point now said to be relevant to the exercise of its discretion if the point, which was certainly not obvious to the Tribunal from the material which was the subject of submissions before it, was not expressly taken; and it was not.
- I go next to the principles relevant to the application for a review made under Rule 34(3)(e) on the grounds of the availability of new evidence. I need to set out the Rules 34(3)(d) and (e) which are in these terms:
"34(3) Subject to paragraph (4), decisions may be reviewed on the following grounds only--
(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or
(e) the interests of justice require such a review."
- The relationship between those two sub-rules was authoritatively considered by Phillips J, on appeal from the Employment Tribunal (at the stage of the interregnum between the demise of the National Industrial Relation Court and the establishment of the Employment Appeal Tribunal) in Flint. In that case, the issue before the Tribunal was whether, in a claim for a redundancy payment, the Claimant had reasonably or unreasonably rejected alternative employment in Bedford, to get to which he was required to walk one mile in each direction each day to catch transport from St Neots where he lived and where he had previously worked.
- The Tribunal found against him, having considered the comparison between the demands of his journey to his original place of work and those demands if he were to work in Bedford. The Claimant did not mention to the Tribunal that he had a bad leg the effect of which was that walking a distance regularly would cause him particular physical difficulties. He sought a review so as to introduce the evidence about his leg. There was no doubt that that evidence was available to him at the original hearing. Therefore, the then equivalent of Rule 34(3)(d) could not be relied upon; and the Claimant relied upon the then equivalent of Rule 34(3)(e).
- The Tribunal, on the review application, concluded that, if they were to allow the evidence in support of the application to be considered under sub-rule (e), they would be making a nonsense of the strictness of sub-rule (d) and rejected his application. On appeal, Phillips J set out, at pages 401G to 402B, a statement of principle which has (subject perhaps to one subsequent decision to which I shall come) endured ever since, as follows:-
"The difficulty comes in the relationship between paragraphs (d) and (e) of rule 12(1). The conclusion I reach is that paragraph (d) cannot be regarded as exhaustive of cases where the ground of the application is the desire to call fresh evidence. It does not, for example, deal with circumstances where, although the evidence could be foreseen, or indeed reasonably or actually known, it was for some reason or another not available. I think that paragraph (e) is intended to be a residual category of case, designed to confer a wide discretion on industrial tribunals. But I do not think that it can embrace a case where the application is on the ground of the desire to call fresh evidence, where it was obvious that that evidence was available and there is no additional factor to be taken into account. In other words, if I may summarise it, paragraphs (d) and (e) are not mutually exclusive, but paragraph (e) at all events must be applied in practice with some regard to the kind of case which is intended to come within paragraph (d). And ordinarily speaking, a case which would be put forward under paragraph (d), and which failed under paragraph (d), has in it some special additional circumstance which leads to the conclusion that justice does require a review."
- I need to refer to two further passages in that judgment. At pages 404H to 405A, the learned judge reminded of the importance of considering the interests of the general public that, save in unusual cases, a party should not, by the review process, be able to have a second bite at the cherry; and, at page 405C to 405D, he expressed the hope that sub-rules (e) and (d) might be revised so that the circumstances in which a tribunal might or might not order a review might be made clearer. Over 32 years later, the relevant rules, albeit they bear different numbers use, so far as I am aware, the same words.
- The facts of Flint can, of course, easily be distinguished from the present case. The two cases are not at all alike. In Flint, the issue was perfectly simple, and straightforward; there was no reason why the Claimant could not, at the original hearing, have put forward the evidence about his leg. For reasons to which I shall come, I do not regard the present case as one in which the relevant issue can properly be described in the same way.
- The principles set out in Flint were applied by the Employment Appeal Tribunal, presided over by Bristow J, in General Council of British Shipping v Deria  ICR 198. The facts were very different. The Claimants were represented at the original hearing. An important document was not put before the Tribunal. The Respondent's appeal against the Tribunal's decision on review to consider the new document was allowed. The EAT in that case used the words "exceptional circumstances" as being required in order to bring an Applicant for a review in a new evidence case within the words of sub-rule (e); but, in my judgment, the EAT was seeking to apply the principles set out in Flint; and I do not regard the use of those words as opposed to "special and additional circumstances" as in any way narrowing the principle set out in Flint.
- The one decision which might be said to broaden those limits is that of the Employment Appeal Tribunal, presided over by Hooper J, in Williams v Ferrosan Ltd  IRLR 607 in which, in the context of a mutual error on the part of the Tribunal Chairman, Counsel for one party and solicitor for the other party as to the Claimant's tax liability in calculating an award of compensation for future loss of earnings in a sex discrimination case, the EAT indicated that the principle applying in cases of a slip by the Tribunal that a review could only be permitted in exceptional circumstances should be regarded as too narrow in the light of the overriding objective.
- Ms Platt submits that what was there said should apply equally in a case in which sub-rule (e) is invoked not on the basis of an error but on the basis of new evidence. I do not need to and do not propose to make any decision as to that submission, which can be decided, if it is necessary to do so, on another occasion. I am going to proceed on the assumption that the principles which the employment judge had to apply in the present case were those set out in Flint, which he correctly stated in his judgment.
- However, in my judgment, when the employment judge said, at paragraph 9:
"The special or additional circumstances contemplated by Phillips J in Flint v Eastern Electricity Board in cases where evidence previously available could nonetheless be considered by the Tribunal are not here present due to the sole fact that the Claimant was unrepresented."
he appears to have omitted the point about the complexity and difficulty of the Dispute Resolution provisions which was put forward on Ms Henry's behalf as one of the factors which should be taken to amount to or contribute to "special or additional circumstances", in addition to the fact that Ms Henry was unrepresented.
- I am fully aware, of course, of the need always to read judgments of the Tribunal as a whole and that, in paragraph 4 of his judgment, in setting Ms D'Souza's submissions on behalf of Ms Henry, the employment judge referred to the point argued that the statutory grievance procedure was complicated and that Ms Henry could be forgiven for not realising it might be possible to look at the meeting notes. Nonetheless, in my judgment, the use of the word "sole" in the sentence which I have just repeated permits of no other conclusion than that that part of Ms Henry's submissions was not considered. While the employment judge applied the principles correctly, i.e. the conditions as to the exercise of his broad discretion, he failed to take into account a relevant matter and, indeed, a matter of considerable potential materiality and therefore failed to exercise his discretion in accordance with law, by omitting to consider a relevant matter.
- I have in mind Mr Fetto's submission that, in truth, the relevant Dispute Resolution provisions are not difficult or complex; and I will come to that submission in due course; but on any view the point taken on Ms Henry's behalf was relevant and, at least, of potential importance. The employment judge did not express a view as to its importance or significance because, as appears from paragraph 9, he did not weigh it in the balance at all.
- Accordingly, the Tribunal's refusal to review, on the basis that this was not a case falling within Rule 34(3)(e), was reached in error of law and cannot stand.
My Exercise of Discretion
- That provokes the question, "Now what?" When an error of the type I have described has been made in the course of an interlocutory hearing and where all relevant material is before the Employment Appeal Tribunal so as to enable the Employment Appeal Tribunal to exercise the discretion which the Tribunal had rather than to remit to the Tribunal, there is obvious benefit in the EAT's so doing. It avoids delay; and it avoids cost.
- I have asked the parties whether they are content that I should proceed in that manner; Ms Platt and Mr Tabachnik told me that they would prefer that I should do so rather than remit the matter to the Tribunal. Mr Fetto has told me (and I say this in no critical spirit whatsoever, for I am sure that what he said was accurate) that he has no instructions and, therefore, he cannot say one way or the other what would be the better course, although he seemed to prefer a remission.
- No one has suggested that I do not have all the material available to me which would enable me to exercise the discretion myself; and I regard it as appropriate to do so, having regard to the time that has already passed, to the need to save time in the future and to avoid the exposure of the parties to yet further interlocutory costs. I remind myself again of the limits on the exercise of the discretion set out in Flint and that I have already indicated that I was not going, on this occasion, to rule that those limits were broadened by the overriding objective.
- Having so reminded myself, I have reached the conclusion that I should exercise my discretion in favour of Ms Henry. I do not do so on the basis of any duty to disclose, for the reasons which I have already set out. However, I do so on the basis that the circumstances of this case do, in my judgment, amount to "special or additional circumstances" for two reasons.
- The first is that Ms Henry was a litigant in person at the original hearing; and I repeat the acceptance in Mr Fetto's Skeleton Argument that that of itself is capable in law of amounting to sufficient special circumstances.
- Secondly, compliance with section 32 of the 2002 Act was not, in my judgment, a simple, straightforward and clear issue, in contrast to the point which arose in Flint itself. I do not accept Mr Fetto's submission that the operation of the Dispute Resolution provisions, so far as relevant to this case, provided no difficulty or complexity. The operation of those principles, since they came into effect, is well-known to have caused very considerable difficulties for those who are experienced in employment law. The arguments as to whether the October document amounted to sufficient compliance for the purposes of section 32 or not evidence those difficulties, as does the wealth of case law accumulated over the last 3 years or so on this topic.
- Litigants in person are unlikely to know precisely what is required to amount to compliance with the requirements of section 32. A litigant in person is unlikely to know that the May document, which is not a letter of complaint in itself but an internal document made by Southwark or the Trust (by Southwark, I think) but one to which Ms Henry made a contribution, was capable of being a document which could of itself, or with other documents, amount to such compliance. The statutory provisions and the case law are not easy or straightforward for anybody who is not skilled in employment law; and they are not particularly easy or straightforward for those who are.
- In my judgment, those two considerations together are sufficient to lead me to the conclusion that the discretion should be exercised in Ms Henry's favour. I have not neglected the submissions to the contrary put forward by Mr Fetto and adopted by Mr Tabachnik. I have certainly considered them, insofar as I have not mentioned them expressly; but I do not propose, in this long judgment, to dwell any further on this issue; and because I have reached this conclusion on the basis of the principles in Flint, I do not need, as I have already indicated, to consider any further the potential enlarging of the width of the principle for admissibility of new evidence under Rule 34(3)(e) in Williams.
Discussion and Conclusions - The Trust
- I turn, therefore, to the appeal insofar as it directly affects the Trust and, first, to section 33 of the 1976 Act. The arguments on this issue are succinct. Ms Platt submits that it was not necessary for Ms Henry to refer expressly to section 33 of the 1976 Act or to describe the Trust in terms as having knowingly aided the discrimination by Southwark. It was only necessary that what Ms Henry set out in the claim form was sufficient to enable the Trust to appreciate that she was or could reasonably be understood as potentially putting her case in that way. It was always open, she submits, to the Trust to seek further particulars as, indeed, in their ET3, they indicated they were going to do, so as to clarify what may have been well capable of further particularisation; but there was sufficient in the claim form to indicate that such a liability was being advanced.
- Mr Tabachnik submits that nothing in the claim form suggested a section 33 liability and pointed to the fact that, as he put it, it would have been apparent to Ms Henry from the Trust's ET3 what point was being taken, yet she did not explain to the Tribunal at the pre-hearing review that she was relying on section 33. What she has done, he says, is try, vainly, to bring under the statutory head of section 33 (now that she knows what is involved) a much more general, diffuse and unspecified complaint in much wider terms against the conduct of the Trust who were not her employers.
- He further submits that, in order by way of a claim form to put forward a section 33 claim, it is essential for a Claimant to assert, not necessarily in statutory words but in sufficiently clear terms for it to be understood by the reader, that she is alleging that (1) the body who is not her employer has aided and abetted her employer (2) in an act of discrimination by the employer and (3) has done so knowingly; but no such pleading appears in the claim form in this case.
- On this issue, I prefer the submissions of Ms Platt. Mr Tabachnik, with total professional candour, put the applicable principle to me in this way:
"Whether you use technical language or not, you must, as a Claimant, set out sufficient factual allegations from which it is possible to say that there is in the claim form what amounts to a section 33(1) claim."
I agree with that proposition and adopt it. In my judgment, the words which appear in the claim form were sufficient for that purpose, in particular the words under the heading of Race Discrimination:
"I feel the Unit Manager Anna Meechan is trying to get my employers to constructively dismiss me."
Ms Meechan being, it is common ground, an employee of the Trust. Together with or separately from the words in section 10 of the claim form:
"I have written to Roger Weissman about his treatment of me and his collusive behaviour with Anna Meechan, the Unit Manager which allowed the abusive situations to continue."
In my judgment, the words used amount to sufficient to tell the reader that Ms Henry was complaining that employees of the Trust were operating together with employees of Southwark in putting her in a situation in which she might regard herself as constructively dismissed, i.e. the employer's duty of trust and confidence towards her had been broken and in allowing abusive situations to continue, all in the context of what was and was only a race discrimination claim.
- Mr Tabachnik submitted that the words in section 10 of the form headed "Other Information" should not be read together with the words in section 6 of the form; if they were intended to go into section 6, Ms Henry would have put them in section 6; and, therefore, they were merely additional information and not to be regarded as particulars of a discrimination claim. That submission can, as, in my judgment, can the submission about the need to plead the three factual allegations to which I have referred earlier, perhaps properly to be described as an over-legalistic point. Pleadings in the Employment Tribunal (if "pleadings" be the right word at all, probably it is not) are familiarly drawn up by unqualified, inexperienced persons either acting as representatives, but not legal representatives, for an unqualified Claimant or by such a Claimant himself or herself. That is the case here; the claim form was compiled by Ms Henry herself.
- Of course, that does not provide the Tribunal or the Employment Appeal Tribunal with the power to extend the words which are used by the Claimant beyond the meaning and import which they can properly bear; and I have reminded myself of the importance of that principle. However, I have no doubt, looking at all those words together or taking what is said in section 6 of the claim form on its own, that there is sufficient to amount to a section 33 allegation against the Trust and that the employment judge who dealt with this part of the case in one sentence (and I say that in no critical spirit; but he gives no detailed reasons for his conclusion) erred in law in his view of what the claim form amounted to.
- I need to refer to one further point. In that one sentence in paragraph 10 of his review judgment, the employment judge also referred to the fact that, on its face, the section 33 claim was out of time. Mr Tabachnik tells me (and I am sure this is right) that, by that, he meant that if the claim form in its extant form did not put forward a section 33 claim, there were going to be difficulties in amending it because then the claim would be out of time. It was not a conclusion that, if the claim form did make the section 33 allegation sufficiently, it was out of time; for that was never argued or considered and would necessarily have required a hearing at which there might well have been factual issues which would have had to be investigated. I need say no more about that, save, for the sake of clarity, to indicate that it is not necessary for me to consider any time point any further.
- For the reasons which I have set out, the appeal against Southwark and the appeal against the Trust are both allowed; and the claims against both must now go forward to effective disposal.