Mohammed & Anor v Gillette Group Ltd

This is a renewed application for permission to appeal from the Employment Appeal Tribunal (EAT), permission having been refused on the papers by Pill LJ. The applicants, Mr Mohammed and Mr Hussein, also seek an extension of time because the EAT decision was dated 20 September 2007 and the application for permission to appeal was only lodged with this court on 24 October 2007. I have to say the delay, however, was not very long and if on the merits I thought there was a good case I would grant the extension of time. So I turn to look at the merits.

Both the applicants were on the face of things agency workers. They worked for most of the time as agency workers at the Isleworth factory of the respondent, the Gillette Group UK Limited. Although for a short period they were clearly employed directly by Gillette, most of the time they were on the face of it agency workers. When their claim came before the employment tribunal it was not alleged that they were employees. That, indeed, was expressly conceded by their solicitor at the hearing before the employment tribunal and that concession is recorded in the tribunal’s decision.

Gillette’s factory closed down on 3 April 2006. Because they were not employees, the applicants were not entitled to redundancy payments. They brought claims for race discrimination, they both being of Somali origin. Those claims were presented on 26 June 2006. The alleged discrimination consisted of the refusal of Gillette to employ them directly. The problem with that, as the employment tribunal pointed out, was that there was only one occasion when the applicants had applied unsuccessfully for permanent direct employment as employees and that was in October 2001. That, as will be appreciated, was something like four and a half years before the claim was presented. In that situation there was an obvious difficulty about meeting the requirements of section 68 of the Race Relations Act 1976 because that imposes a three month time limit on bringing claims for race discrimination after the date of the act complained of. Similar provisions, I should say, apply to claims about religious discrimination.

Before the employment tribunal it was first argued that the applicants’ continuing status as agency workers meant that the discriminatory act was continuing. The tribunal rejected that argument, then went onto consider whether it should exercise its discretion to extend time under section 68(6) on the basis that it was just and equitable to extend time for the claim. In its decision of 9 November 2006 the employment tribunal noted the delay of almost five years, found that the respondent, Gillette, had been substantially prejudiced by the delay, looked at the reasons for the delay and, in the light of all those matters, decided not to extend time.

The applicants then appealed to the EAT but their notice of appeal was only lodged on 19 February 2007. A decision on paper was made by the EAT that there were no reasonable grounds for an appeal. That was challenged and an oral hearing took place. After that hearing HHJ Pugsley dismissed the appeal on 20 September 2007 under rule 3(10) of the EAT rules. He did so first of all because there was no basis for an appeal against the tribunal’s decision on the discrimination issue and the time limits. Secondly he considered an argument that the tribunal should have considered a possible claim for redundancy payments on the basis that there had been an implied contract of employment, so that the applicants were direct employees of Gillette. He noted that that was not a claim which had been put forward before the employment tribunal, and indeed that it had been expressly conceded there that they were not employees. In light of that he concluded that he could see no error of law in the way the employment tribunal had approached the matter.

The applicants now seek to challenge that decision, as I have said, somewhat out of time. In the written skeleton argument which has been put in on their behalf, it is argued first that an extension of time for the discrimination claim should have been granted by the employment tribunal. That has not been emphasised by either Mr Mohammed or Mr Hussein this morning in the oral submissions which they have made to me. Their emphasis has been on the second matter, namely that the employment tribunal should have first of all determined the relationship between the parties and should have decided that the applicants were employees. Mr Mohammed has emphasised that they worked for Gillette for some ten years in all and during part of that time, albeit a short part, they were clearly directly employed; Mr Hussein likewise has emphasised all the features of the relationship between them and Gillette in terms of direct payments and so forth. So it is said that, had the employment tribunal applied its mind to that question, namely were the applicants employees or not of Gillette, it would have been likely to have come to the conclusion that they were employees and therefore entitled to redundancy payments.

Unhappily I am bound to say that I can see no prospect of a successful appeal. Let me deal first of all with the extension of time point. It was a matter of the employment tribunal’s discretion whether it extended time or not. I can see nothing wrong with the way in which it exercised its discretion. This court will only interfere on that sort of matter where there is something patently wrong as a matter of law or totally perverse about the discretion which has been exercised.

Let me come to the main matter, which concerns the redundancy claim. It seems to me that the employment tribunal had carefully and expressly investigated what was being contended on behalf of the applicants before it, and the tribunal expressly recorded at paragraph 2(i) of its decision that it was agreed that the applicants were not employees. Now in those circumstances I cannot see that there is any chance of it being argued that the employment tribunal made an error of law in not dealing further with that matter. That was an agreed starting point for the decision which the employment tribunal then went on to make. It was fatal, of course, to any claim for redundancy and that is why the tribunal did not further deal with it. I am afraid it is fatal to this argument in this court as well because, as I have sought to explain to both Mr Mohammed and Mr Hussein, this court can only act if there is some error of law in what has gone on before. Given the concession which was made by the solicitor on behalf of the applicants at the employment tribunal stage, I cannot see that that tribunal made an error of law and nor did the EAT.

In those circumstances, sympathetic though I am to the applicants’ position, I am afraid that I have to agree with Pill LJ that there is not a realistic prospect of a successful appeal against the EAT’s decision. In those circumstances these applications will have to be dismissed. I would nonetheless express my appreciation of the very courteous and very succinct way in which both applicants have advanced their case this morning. I am sorry their trip to the Royal Courts of Justice has not been more fruitful for them.