Francois v Hutchinson 3G UK Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Rix,Lord Justice Moses |
| Judgment Date | 14 May 2009 |
| Neutral Citation | [2009] EWCA Civ 405 |
| Date | 14 May 2009 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2008/1619 |
[2009] EWCA Civ 405
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ REID QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Rix
and
Lord Justice Moses
Case No: A2/2008/1619
UKEAT/0078/08/LA
MR WILLIAM PANTON (instructed by HS Kang & Co) for the Appellant
MISS BETSAN CRIDDLE (instructed by Robert Joy Employment Law Services Limited) for the Respondent
Hearing date: 17 th March 2009
Lord Justice Mummery:
Introductory
This appeal is from the order of the Employment Appeal Tribunal (HHJ Reid QC sitting alone) dated 14 April 2008. I gave permission to appeal on 24 October 2008 and granted an extension of time. The applicant, Miss Francois, who was acting in person with her mother's support, was informed that she would be well advised to seek pro bono legal assistance through the Citizens' Advice Bureau. Fortunately for all concerned, Miss Francois obtained representation by counsel in time for the hearing of the appeal.
The point is purely procedural. It is not difficult and, in the ordinary course of things, it would not have found its way to this court. The employment tribunal (ET) could have sorted it out long ago using its wide discretionary powers to ensure that access to it was not denied for an unmeritorious procedural reason. Considering the very large number of cases brought in the ET every day, it is only a tiny number that produce problems warranting an appeal to the Employment Appeal Tribunal (EAT), still less to this court.
In this instance, however, a chapter of accidents and oversights, complicated by an unnecessary excursion into the relatively unfamiliar territory of issue estoppel, combined to lead to a startling result. Miss Francois is no further forward than she was over 2 years ago in her efforts to issue discrimination proceedings against the respondent. Although the estoppel doctrine, which featured in the decisions in the ET and in the EAT, has a place in employment law, it does not, with respect, have any place in this case.
No-one in particular is to blame for what has happened. Both Miss Francois and the tribunals were disadvantaged by the absence of legal representation for her. Some cases take a wrong turn at an early stage leading to procedural tangles which, with hindsight, could have been unravelled more easily than seemed possible at the time.
Background
Miss Francois was a job applicant. She applied for a part time job as a sales associate with the respondent, a major international mobile phone sales supplier, at one of its local branch stores, Superdrug 3, Kingsland Road, Dalston, London E8. She was interviewed on 19 September 2006. She says that she informed the manager that she could not work on Saturdays, because of attendance for worship at the Seventh Day Adventist Church. On 27 September 2006 she says that the manager called her to say that he could not offer her the position because she could not work on Saturdays. She was not flexible enough for the position and did not have the relevant sales experience. The advertisement for the post did not stipulate that Saturdays were compulsory workdays.
Miss Francois believes that, as evidenced by the reasons she says she was given for not appointing her, she was discriminated against on the grounds of religion and/or race. It is premature to investigate the factual and legal merits of her claims, which are strongly disputed by the respondent. This appeal is only concerned with a procedural point arising from her so far unsuccessful attempts to issue discrimination proceedings in the ET.
ET proceedings
Boxing Day is not the ideal day for starting legal proceedings, especially if the time limit for bringing them is about to expire. On 26 December 2006 at about 1715 hours, Miss Francois faxed a claim form ET1 (the First Claim Form) to the ET at Stratford in East London. It was signed and dated 26 December 2006. In section 6 of the form she alleged in general terms race discrimination (she is Caribbean) and discrimination on the ground of religion or belief (she is a Seventh Day Adventist). The respondent was named as “Hutchinson [sic] 3G UK Ltd” with an address in Battersea, London SW1. At that date the 3 months time limit had not yet expired. In view of the address given for the respondent in the First Claim Form, the papers were passed on 29 December 2006 to the ET offices for London South in Croydon. They were returned to Stratford on 2 January 2007.
The procedural hitch was that the part of the First Claim Form for the inclusion of details (incidents, dates, people involved) of the discrimination claim in section 6.2 was not completed as required by Rule 1(4)(e) of the Employment Tribunals (Constitution and Rules of Procedure) Rules 2004. Instead the words “SEE ATTACHED” were written in manuscript. Miss Francois says that she faxed the attachment to the Stratford ET along with the First Claim Form itself. The ET received the First Claim Form, but denied ever having received the attachment.
On 2 January 2007 the ET Stratford office notified Miss Francois that the chairman (Ms VK Gay) had decided that her claim could not be accepted, as it was incomplete: she had not supplied details of her complaints at box 6.2 of the claim form. The First Claim Form was returned under cover of a letter saying that, if she wished to continue with her claim, she must provide the information and return the form to the Stratford office. She was also informed that she had the right to apply for a review of the decision not to accept the claim within 14 days of the letter explaining why she believed that the decision not to accept the claim was wrong. The decision could be changed if a chairman was satisfied that it was wrongly made as the result of an administrative error or the interests of justice required it.
On 16 January 2007 Miss Francois replied saying that she wished to apply for a review on both of the suggested grounds. She also pointed out that the fax transmission slip indicated that 13 pages had been sent and that the ET's post it noted that only 11 pages had been received. Confusingly, Miss Francois then completed and submitted another ET1 Form to which she attached the missing details of the discrimination claim already made in the First Claim Form. She also altered the details of the respondent to “3 Store Dalston c/o Superdrug” at Kingsland Shopping Centre, London E8” that being the place at which she applied to work. However, in her letter she also identified the information said to be missing from the First Claim Form as being the information “now attached”.
That second ET1 Form (the Second Claim Form) was delivered by hand to the Stratford ET on 17 January 2007. It said “PLEASE SEE ATTACHED” in manuscript in box 6.2. The detailed information of race and religious discrimination under 6.2 was set out in an attached 3 page document typed on a word processor. At the foot of each page were words “ Francois v. Hutchison 3G UK Ltd” with a reference. The typed details also mentioned a claim for sex discrimination, which did not feature in the body of either the First or Second Claim Form.
The details in the Second Claim Form were of the complaint that she had sought to make in the First Claim Form. Apart from the name and address of the respondent, the claim was the same. However, the Second Claim Form was submitted more then 3 months after the discrimination alleged. The ET treated the Second Claim Form as if the claim in it required an extension of time to entitle the Claimant to pursue it.
The Second Claim Form was accompanied by a letter dated 16 January 2007 applying for the suggested review of the decision not to accept the First Claim Form on the grounds of both administrative error and the interests of justice.
The respondent took the point in its response form submitted on 16 February 2007 that the Second Claim Form was out of time. It pointed out that Miss Francois was informed of the outcome of the job application on 27 September 2006. Her claim appeared to have been presented on 17 January 2007. The respondent sought pre-hearing review to determine the ET's jurisdiction to hear a claim brought out of time. The respondent denied that there had been any discrimination or that Miss Francois was entitled to any compensation.
The ET directed that a pre-hearing review should be held on 15 May 2007. It duly took place before an ET chairman (Mr SM Duncan sitting alone). Oral evidence was given by Mrs Francois, the mother of Miss Francois. In a judgment sent to the parties on 4 June 2007 he held that all the claims were out of time, that time should not be extended and that the claim should be dismissed. He found as a fact that only 11 pages of the First Claims Form had been sent to and received by the ET. The typed particulars of the First Claim Form had not been attached to it. He refused to grant an extension of time. He specifically stated that Mrs Francois had not been truthful about some matters, which were highly relevant (i.e. how many pages were faxed to the ET on 26 December) and had not presented the first claim until the last possible day. An application by Miss Francois for a review of that decision was rejected on 25 June 2007.
All was not lost. Miss Francois had not forgotten her earlier request for a review of the ET decision of 2 January 2007 rejecting her First Claim Form. On 24 May 2007 she had inquired about a hearing date for...
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