Argenio v NEC Group Ltd. & Anor

Tuesday, 25th March 2003

J U D G M E N T

1. LORD JUSTICE PETER GIBSON: This is an appeal by Carmelo Argenio against the order made on 5th September 2002 by the Employment Appeal Tribunal dismissing his appeal against the decision of an Employment Tribunal sitting in Birmingham. By that decision sent to the parties on 6th March 2001 the Tribunal held that a complaint of disability discrimination which Mr Argenio wished to raise was brought out of time and that it was not just and equitable to extend time to allow it to proceed. The appeal is brought with the permission of the single Lord Justice, Sedley LJ.

2. Mr Argenio is of Italian origin. From 26th March 1998 until his dismissal on 2nd September 1999 he was employed by the first respondent, the NEC Group Limited ("the NEC"), as a security officer or steward. The second respondent, Symphony Hall, Birmingham, is a trading division of the NEC. In his brief period of employment Mr Argenio presented four originating applications to the Tribunal. The first three, dated respectively 21st October 1998, 13th July 1999 and 3rd September 1999, raise complaints of racial discrimination and/or victimisation. On this appeal we are not concerned with those applications. The circumstances which led to the presentation of the fourth originating application were these. On 3rd August 1999 another employee, Paul Gillis, made threatening comments to Mr Argenio who complained to his manager, Gary Masters, telling Mr Masters that he had made a tape-recording of the incident. Mr Argenio was asked to attend a meeting on 11th August 1999 with Mr Masters and a representative of the Human Resources Department of the NEC, Steve Wright. For the NEC the purpose of the meeting was to discuss Mr Argenio's performance and conduct with particular reference to three issues:

(1) his practice of confronting colleagues when he felt their performance or conduct was unacceptable, rather than referring the matter to his supervisor as instructed;

(2) his failure to produce written reports within a reasonable timescale when asked to do so by his supervisor; and

(3) taping conversations whilst at work without the knowledge and permission of those parties involved.

3. Mr Argenio and the NEC have slightly differing accounts of what occurred at the meeting. I will come back to Mr Argenio's account shortly. It is sufficient to say that the question was raised by the NEC at the outset whether Mr Argenio was taping the meeting, that Mr Argenio was reluctant to give an answer and that the meeting ended with Mr Argenio being suspended. The NEC say that he was warned that the NEC did not permit the taping of conversations or meetings, that the question constituted a reasonable instruction and that, if he continued to refuse to carry out the instruction, it could constitute a gross misconduct offence, that he was given a further opportunity to answer the question and was informed that he would not be penalised if he admitted to having the tape on, provided he agreed to stop, but that Mr Argenio refused to carry out the instruction, stating that he could only respond to questions if he could tape the meeting or have a solicitor present.

4. Mr Argenio was requested to attend a disciplinary meeting on 31st August 1999. The disciplinary panel heard the evidence and on 2nd September 1999 dismissed him for gross misconduct. He appealed and his appeal was heard by a director of the NEC on 6th October 1999. The appeal was a rehearing with evidence. By letter dated 8th October the Director informed Mr Argenio that the appeal was dismissed.

5. Mr Argenio had solicitors acting for him from 2nd July 1999, having obtained legal aid to receive advice from them. He has said in his skeleton argument that they ceased to act on 25th October 1999. In fact, it is clear from the documents Mr Argenio himself has produced that they continued to act after that date. On 27th October they wrote to him two letters, one of which included a draft application to the Tribunal in relation to his dismissal. The letter discusses the matters which were raised in the draft and what parts Mr Argenio himself was to fill in. It is also clear from an earlier letter of 6th September 1999 that the solicitors had then supplied him with a draft for the internal appeal which Mr Argenio was bringing and that the language used in that earlier draft was borrowed for the draft application to the Tribunal. In particular, the language of the earlier draft was incorporated into what, as I shall explain in a moment, turns out to be the crucial paragraph of Mr Argenio's originating application. He complains that the solicitors failed to advise him on a number of matters, including that dyslexia is part of the Act, by which he means that a dyslexic person may be a disabled person within the meaning of the Act.

6. On 29th November 1999 Mr Argenio presented his originating application. In box 1 of his form IT1 he gave as the type of complaint which he wanted the Tribunal to decide as "1 - unfair dismissal, "2 - race discrimination".

In box 11, where he was asked to give details of his complaint, he referred to an attached statement. In paragraph 1 of the statement he set out details of his employment. In paragraph 2 he stated his belief that in the course of his employment he suffered racial discrimination, and he referred to the three previous applications. He then stated what he called the salient facts in relation to his present application. In paragraph 3 he referred to being asked to attend the meeting on 11th August, which, he says, he believed was to discuss the threats against him on 3rd August, and he claimed not to have been given advance notice. In paragraph 4 he expressed his concern about the meeting, that concern being increased because he believed that he had been subjected to racial discrimination at work, and because Mr Masters was one of the people about whom he had made a formal complaint to the Tribunal. In paragraphs 5 to 9 (inclusive) he described what occurred at the meeting in the following terms:

"5. Almost as soon as the meeting started Gary Masters and Personnel Manager Steve Wright started asking me questions about whether I was taping the meeting. I suffer from dyslexia and English is my third language and sometimes I have difficulty in understanding everything that is said to me. Consequently I wanted either to be able to tape the meeting or to have an independent note taker present. At the beginning of the meeting I attempted to tape the meeting in order to protect myself. I would never have thought that the meeting of 11 August 1999, was going to be a further act of discrimination or victimisation by the NEC Group concluding with my dismissal.

6. However I was reluctant to answer questions about whether I was tape recording the meeting because I felt if I did, I would be required to give all the tapes to the NEC. However I decided not to tape-record the meeting but I feared that I would not have a true and independent record if I was subsequently treated unfairly or discriminated against. My fears were realised.

7. My concerns and anxieties were further increased by the fact that it was Mr Gary Masters who had invited me to the meeting by letter dated 6 August 1999. He was conducting the meeting even though he had subjected me to racial discrimination as I set out in the claims that I have already made to the Employment Tribunal Case number 5203285/99.

Proceeding with the meeting increased my anxiety when I could see that they were not taking into account the threats I received on the 3rd August 1999. They said that I did not need to take notes and there was no notetaker or independent record made. If I was intended to be treated fairly at the meeting, I could not see why there would be any problem with the meeting being tape-recorded.

8. Eventually during the meeting I decided it would be best to turn the tape-recorder off. (Immediately after I had done so I said, 'I am not taping now!'). I did so; but then I was questioned again about whether I had previously been tape recording the meeting.

9. I asked several times that someone else to be present at the meeting to take notes since I was not allowed to tape the meeting and or take notes (Personnel Manager Steve Wright said, 'You don't need to take notes, we will do it!'). I was told initially that because it was not a disciplinary meeting there was no need for anyone to be there to take notes. I asked for a solicitor to be present but this was refused. I said that I did not feel the meeting could go forward unless there was an outside note taker present or unless I was allowed to tape the meeting. Eventually the meeting was abandoned."

7. In paragraphs 10 to 12 Mr Argenio referred to his suspension, the disciplinary hearing and the appeal. In paragraph 13, under the heading "Unfair Dismissal", Mr Argenio stated his complaint that he had been unfairly dismissed, saying that he had not been informed of the purpose of the meeting, that he had reason to be concerned that he might not be treated fairly and it was his belief that he had previously been subjected to discriminatory treatment, that Mr Masters was one of those responsible for that discrimination, and adding:

"Consequently it was not unreasonable for me to want either to be able to tape-record the meeting or to have an independent note taker present. I consider it was not unreasonable for me to ask for this."

In paragraph 14 under the heading "Race Discrimination" he expressed his view that the behaviour and decision of the NEC to make such an issue of the question of the tape-recording was victimisation. He referred again to the previous claims of race discrimination and said that what happened at the meeting on 11th August 1999 was used as an excuse for precipitating his consequent dismissal. He said:

"I consider that if I was an Englishman I would not have been treated in such a manner. This is racial discrimination under the Race Relations Act 1976."

8. On 23rd September 1999 there was a directions hearing. Orders were made for further details to be provided by Mr Argenio of his racial discrimination claims in the other cases. There were further directions hearings once the fourth originating application had been presented, and directions were given in relation to all the cases which were to be heard together. A five-day hearing was fixed for May 2000, but, in the event, that was postponed until 15th January 2001.

9. Up until 8th January 2001 no express mention had been made of the Disability Discrimination Act 1995 ("the 1995 Act"), still less any express claim made under that Act. By letter dated 8th January 2001 Mr Argenio wrote to the Tribunal in the following terms:

"The Applicant wishes to submit an 'Amended Skeleton Argument' to be attached to the 'Skeleton' served on May 2000, for the 'above' cases.

The Applicant would like to submit, by virtue of his 'learning disability' the adjustment for the following 'Right' to be applied to the hearing due, very shortly.

Disability Discrimination Act 1995 4 s(1) (leaving out provisions not material for this case) provides:

4 - (1) Subject to the provisions of schedule 1, a person has a disability for the purpose of this Act if he has 'an impairment is to be taken to effect that ability of the person concerned to carry out day-to-day activities only if it affects one of the following-

...

(g) memory or ability to concentrate learn or understand.

The claim is meritorious and that it would be just and equitable to allow this 'clarification'. The Respondent should not suffer any hardship, injustice or prejudice to apply what it is considered to be a common sense's approach of 'natural justice'."

10. Mr Argenio represented himself at the hearing before the Tribunal.

11. At the commencement of the hearing the question arose whether he should be permitted to bring a complaint of disability discrimination. The Tribunal treated that as a preliminary issue. In their Extended Reasons the Tribunal referred to the Act as giving a right to employees to complain that they had been discriminated against by their employer on the grounds of their disability. They mentioned the time-limit in section 8 of, and paragraph 3 of Schedule 3 to, the 1995 Act that a tribunal may not consider a complaint not brought within three months of the act complained of unless it would be just and equitable to allow such a claim to proceed. The Tribunal said that, as Mr Argenio was dismissed on 2nd September 1999, a complaint had to have been brought within three months of the last date upon which he was discriminated against, that is to say the date of his dismissal. They said that the complaint raised on 8th January 2001 was 13 months out of time. They then said this:

"5. Mr Argenio complained of disability discrimination on the basis that he is a disabled person within the meaning of the Disability Discrimination Act 1995, suffering from dyslexia. The reason that his complaint was late, he said, was that he was an unrepresented person without legal assistance. He suffers from dyslexia. His dyslexia made it extremely difficult for him to understand the law which is an extremely abstract matter. The dyslexia therefore made it difficult, if not impossible, for him to understand his rights.

6. The tribunals view of the matter is if the case were allowed to proceed at the moment, the balance of prejudice would lie squarely against the respondents. This is a matter that has taken many long months to reach a hearing. This is not particularly the fault of one party or the other, it is just a fact of life. Nevertheless, at long last and, after protracted interlocutory correspondence, the case is now ready for a hearing. The respondents have prepared their case on the basis that they will be meeting a complaint of unfair dismissal and race discrimination. There has been no hint that the applicant was complaining under the Disability Discrimination Act 1995 until some three or four working days before the date of the hearing. To allow such a complaint to be considered now would, undoubtedly, require that the proceedings be further adjourned, with a consequent loss of costs thrown away for the respondents and, given the distance in time from the matters complained of, considerable prejudice against the respondent. The matter would, in all probability, require a preliminary hearing on the question of disability and further particularisation of the applicant's already very complex complaint. This case could not be brought back before the tribunal until the late summer, given the current listing situation.

7. We have also enquired of ourselves whether we accept the applicant's disability has made it impossible for him to understand his rights. We doubt that. We note that the applicant has pursued a lively, protracted and informed correspondence with the tribunal and with the respondents relating to procedural matters in this case. The applicant has not had any difficulty in expressing himself in writing and has clearly been able to get a firm grasp of the issues in his race discrimination and unfair dismissal complaint. We are also aware that the applicant had some legal advice at the time of his dismissal and indeed mentioned his dyslexia to the respondents at that time. Nevertheless, he chose not to rely on a claim of disability discrimination in his final application. We take the view that the applicant's disability could not have had a substantial effect in preventing him from realising that he might also complain that he had been discriminated against on the grounds of his disability, if he truly believed that that was an issue. We note also that this is not a case where the applicant can complain that he has been misled by the respondents since there has been no correspondence between the applicant and the respondents on the question of any possible complaint under the Disability Discrimination Act. In all the circumstances, the tribunal consider that it would not be just and equitable to exercise the discretion given to us by Section 8 of the Disability Discrimination Act 1995 to allow these proceedings to go ahead."

12. Mr Argenio then appealed to the Employment Appeal Tribunal. Again he appeared in person. In rejecting that appeal His Honour Judge Reid QC, giving the judgment of the Appeal Tribunal, noted Mr Argenio's arguments that the complaint of disability discrimination was already contained in paragraph 5 of the statement attached to his originating application and that the amendment which he sought to make was merely a relabelling of an existing claim. The judge said:

"9. ... The mere reference to dyslexia in the context of it being a reason why he should wish to make a tape recording of a meeting does not indicate that he is suggesting that he was discriminated against by reason of any disability."

13. The judge rejected the point that this was mere relabelling as a bad one which, in any event, was a point not taken before the Tribunal when Mr Argenio's submission was that the reason his complaint was late was that he was an unrepresented person without legal assistance.

14. The Appeal Tribunal also rejected an argument that the Tribunal's decision was perverse. They described as manifestly correct the Tribunal's view that his alleged disability did not make it impossible for him to understand his rights.

15. Finally, the Tribunal considered but rejected an argument that the Tribunal was biased.

16. Mr Argenio then sought permission to appeal on numerous grounds set out in his Appellant's Notice. His application was heard by Sedley LJ at a hearing in court. He permitted Mr Argenio to appeal, but only on the single ground that, even though he had not specified disability discrimination in box 1 of his form IT1, he had spelt out the facts capable of supporting such a claim in paragraph 5 and so was not out of time.

17. Sedley LJ indicated in his judgment that Mr Argenio needed legal representation, and made suggestions as to how he might obtain it. Notwithstanding that indication and those suggestions, Mr Argenio appears before us in person today. He has provided us with the same skeleton argument that he had prepared before Sedley LJ gave his limited permission. That skeleton, which runs to 22 pages, contains many matters which have no relevance whatsoever to the sole ground which he is permitted to advance to this court. He has also, when opening his case, read to us from a prepared document. After listening to him for some time, it became apparent that Mr Argenio was again wishing to go into points far wider than the single point on which permission to appeal had been given, even though we tried to explain to him that this court had no jurisdiction to hear his other complaints in respect of which permission to appeal had been sought but refused at a hearing in court. Mr Argenio has accused this court of acting unfairly towards him in not allowing him to proceed to read out the whole of his prepared statement in the way he was proposing to do, but instead in confining him, as best we could, to what was relevant. In an attempt to dispel any sense of unfairness, when Mr Argenio had finished his submission on the complaint under the 1995 Act, we offered to read, and have read, the whole of his prepared statement, so that we have not lost sight of all the matters which he was wanting to urge upon us.

18. As I have indicated, he has many complaints, but the short question for this court is whether paragraph 5 of Mr Argenio's statement attached to his originating application contains the facts which are capable of supporting a claim, which he says he has made, of disability discrimination.

19. I shall start by considering the relevant provisions of the 1995 Act.

20. Section 1 defines a person having a disability for the purposes of the Act, that is to say if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. The term "disabled person" is defined in section 1(2) as meaning "a person who has a disability".

21. Schedule 1 contains provisions supplementing section 1. They include:

"4(1) An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following-

...

(g) memory or ability to concentrate, learn or understand ... ."

22. Section 4(2) provides, so far as relevant:

"It is unlawful for an employer to discriminate against a disabled person whom he employs-

...

(d) by dismissing him, or subjecting him to any other detriment."

23. Section 5 is, so far as material, in the following terms:

"(1) For the purposes of this Part, an employer discriminates against a disabled person if-

(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply ... .

(2) For the purposes of this Part, an employer also discriminates against a disabled person if-

(a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and

(b) he cannot show that his failure to comply with that duty is justified."

Subsection (3) contains provisions as to when treatment is justified. Subsection (4) contains a provision dealing with whether a failure to comply with a section 6 duty is justified. Subsection (5) contains a provision that:

"If, in a case falling within subsection (1), the employer is under a section 6 duty ... but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty."

24. Section 6 provides:

"(1) Where-

(a) any arrangements made by or on behalf of an employer,

...

place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect."

By subsection (2):

"Subsection (1)(a) applies only in relation to-

...

(b) any term, condition or arrangements on which employment ... is offered or afforded."

Subsection (3) contains examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1). They include:

"(k) providing a reader or interpreter".

Subsection (4) provides for the matters to which regard should be had in determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (1). They include:

"(a) the extent to which taking the step would prevent the effect in question;

(b) the extent to which it is practicable for the employer to take the step;

(c) the financial and other costs which would be incurred by the employer in taking the step and to the extent to which taking it would disrupt any of his activities."

25. Because the letter of 8th January 2001 to the Tribunal did not make clear in any way what was the alleged disability discrimination under the 1995 Act, we have attempted to obtain from Mr Argenio precisely what it was that he was alleging constituted the relevant discrimination in this case. He has told us that discrimination arises because he is a disabled person whom the respondent employs and against whom the respondent has discriminated by dismissing him or subjecting him to another detriment, that is to say suspension, so that he came within section 4(2)(d). He also complained that the respondent's rule not to allow the use of a tape-recorder at the meeting on 11th August 1999 was an arrangement placing him, as a disabled person, at a substantial disadvantage in comparison with persons who were not disabled, and the employer failed to take reasonable steps to prevent the arrangements having that effect. He says that he should have been provided with an interpreter as well as allowed to use his tape-recorder because of his wish to make notes of the meeting. He says that it would have been reasonable for the respondent to take those steps once he had notified the employer of his dyslexia in the meeting. Accordingly, he claims that the employer breached its section 6 duty. Mr Argenio submits that his case is covered by paragraph 5 of the statement attached to his originating application.

26. In considering the wording of paragraph 5, it is appropriate to adopt a broad untechnical approach to the language. No particular precision is required. However, it has to be borne in mind what is the purpose of the from IT1 which an applicant presents to commence the proceedings, that is to notify the party against whom the complaint is made of the case which that party has to meet. It is, in effect, a form of pleading. In the light of that purpose, one must consider whether or not what is said in paragraph 5 is a sufficient notification of the material on which a claim for disability discrimination can be and is being based.

27. There can, I think, be no doubt but that Mr Argenio did not intend by his originating application to make any claim under the 1995 Act. He did not know that he might have a claim under that Act. He blames his solicitors for not telling him that his dyslexia enabled him to make such a claim. He himself says that it was only in December 2000, after studying some EAT cases, that he realised what he calls "the bonding relation" between dyslexia and the Act. He himself, as he reveals in his skeleton, knew about his dyslexia as long ago as 20th October 1998. His solicitors were made well aware that he was claiming to be dyslexic; hence the express reference in the draft originating application which they prepared, mirroring, as I have said, the wording of what was supplied by them for use for the internal appeal, to the fact that he was saying that he had suffered from dyslexia. It cannot therefore be suggested that he always had it in mind to make such a claim, and plainly his solicitors did not think that such a claim was being made.

28. Against that background, when one looks at the wording of paragraph 5, I find it impossible to see how it could be said that Mr Argenio was stating the facts for a claim under the 1995 Act. He was simply explaining why it was that he wanted to be able to use a tape-recorder at the crucial meeting on 11th August 1999. The originating application as a whole makes it abundantly clear that the thrust of the complaints being made was that he suffered racial discrimination and was unfairly dismissed. He makes plain that it is race discrimination that was the cause of his dismissal. No other cause of his dismissal is suggested. The act of discrimination or victimisation referred to in paragraph 5 when read in the context of the entire originating application is plainly discrimination or victimisation under the Race Relations Act 1976.

29. Further, I find it impossible to see that by the facts which are pleaded in paragraph 5 Mr Argenio has set out all that is necessary to constitute a valid complaint under the 1995 Act. He does not assert any causal connection between the dyslexia and the dismissal or suspension about which he complains. Moreover, in relation to his case under section 6, I find it difficult to see how he could say that he was placed under a substantial disadvantage in comparison with others who were not disabled in the employer adhering to its rule not to allow the taping of meetings. It has to be borne in mind that this was not a disciplinary meeting: it was a meeting at which Mr Argenio was asked a number of questions. He does not suggest that in fact he did not understand any question asked of him at that meeting.

30. In these circumstances it seems to me that the Tribunal were entirely right to treat the letter of 8th January 2001 as seeking to introduce a new claim and one which was made long out of time.

31. I should deal with one case which Mr Argenio has repeatedly relied on, and that is the case of Davidson v The Ministry of Defence which was decided by the EAT, His Honour Judge Altman presiding, on 17th June 1999. Mr Argenio complains that the Appeal Tribunal did not refer to that case. He is of the opinion that if a party refers to a case in his skeleton, he appropriates that case to himself and the other side cannot rely on the case and the tribunal or court must deal with that case in its decision. That is, of course, a misunderstanding of the law. Authorities can be relied on by either side, regardless of who refers to it. The tribunal or court need not deal with a case so referred to if it regards the case as not being of particular relevance.

32. Davidson is a case in which it was held, in the particular circumstances there pertaining, that an applicant should be allowed to make a claim under the 1995 Act out of time on the footing that the claim was sufficiently adumbrated in the originating application. Each case turns on its own particular facts, and the facts of that case do not seem to me to be particularly close to those of the present case. It was a case in which the applicant had been dismissed on the grounds of inefficiency, his performance having deteriorated. He claimed right from the start that that deteriorating performance was not his fault but was due to certain matters, such as stress. In the statement of case lodged when he started the proceedings it was said there was a departmental review board as part of the dismissal process to whom evidence of health problems, including dyslexia, had been provided. The Appeal Tribunal found it clear that the contribution of the applicant's dyslexia was part and parcel of the complaint of unfair dismissal at the heart of the matters that were going to be dealt with as a result of the originating application. There was also a shorter period of delay. The Appeal Tribunal therefore held that it was right to allow the claim to proceed.

33. Those are not the facts of the present case. The only mention made of dyslexia was part of the explanation of why it was that Mr Argenio was wanting to tape-record the meeting of 11th August 1999; but the crucial matter at that meeting was, of course, whether he had refused a reasonable instruction to answer a perfectly straightforward question. For my part, I do not obtain any assistance whatever from the decision in Davidson which, in any event, is not binding on this court.

34. Reference was made by Mr Argenio to other cases and other matters of complaint, but they do not seem to me to go to the point which is the crucial one on this appeal.

35. Mr Argenio feels strongly that he has not obtained the result which he passionately believes is his due in respect of his complaint to the Tribunal. But I am afraid that, for the reasons which I have given, I do not think that he has made out his case that time did not matter in relation to the adjustment to his originating application or clarification which he wished to make so shortly before the Tribunal hearing.

36. For these reasons, therefore, I for my part would dismiss this appeal.

37. LORD JUSTICE WALLER: I agree.

38. LORD JUSTICE JONATHAN PARKER: I also agree.

Order: Appeal refused with costs summarily assessed at £10,000, inclusive of VAT.