Francois v Hutchison 3G UK Ltd

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.

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.

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 that application. She wrote again on 18 September 2007 to the Regional Chairman (Mr I Lamb) about the review of the chairman’s rejection of her First Claim Form on 2 January. She mentioned Mr Duncan’s decision, how it was not a review of the decision of 2 January, the ET’s failure to reply to her letters and her request that that decision be referred to the chairman for review “in the interests of justice.”

On 10 October 2007 Mr Lamb replied that he would consider her application for review. He gave directions inviting representations about whether there should be a hearing and how he should exercise his discretion. Although he mentioned that her grounds of review included the interests of justice, he then referred to her submissions about the fax of the First Claim Form and the attachment and stated that administrative error was “the relevant ground for review.” He confirmed that Mr Duncan was not concerned to determine the issue arising on her outstanding application for a review of the decision to reject the First Claim Form. He pointed out that a very unusual situation had arisen in which her application for review of a pre-acceptance decision was outstanding for 9 months in the course of which there had been a decision on a related issue resulting in detailed findings of fact and conclusions adverse to her, which might not be binding on him.

Both sides made written submissions. The application was decided without an oral hearing. Miss Francois submitted that her First Claim Form was filed in time, that box 6 was ticked and that the ET was seized of the discrimination claims that she wished to make. She referred to the overriding objective, the interests of justice and the ET’s case management powers.

The respondent’s written submissions were confined to the ground of administrative error, being the sole ground for review identified by the regional chairman in his letter of 10 October. Submissions were made that the review would have to conduct an identical process to that carried out by Mr Duncan earlier in the year and that it would not be in the interests of justice to replicate the exercise. There must be finality rather than re-litigation.

On 4 December 2007 Mr Lamb granted the review of the decision to reject the First Claim Form and directed that the proceedings continue on the basis that the claim was presented on 26 December 2006. Having researched the legal position himself and citing several authorities, he concluded that he should consider the matter afresh and that he was not bound by Mr Duncan’s findings by virtue of the doctrine of issue estoppel. What was binding was the decision that the claim presented on 17 January 2007 was outside the jurisdiction of the tribunal. Although Mr Duncan had made findings of fact about one aspect of the case he was considering, it was in relation only to one of the circumstances which he had to take into account (paragraph 10) He concluded that -

“12.

….The Claimant states that the original claim form did have the additional details attached to it. I know from the documents before me that the original claim form went from Stratford to West Croydon and back to Stratford again. There was ample opportunity for part of the documentation to become detached and be lost. Applying my own experience, which now extends over 15 years, of the Employment Tribunal offices at both Croydon and Stratford, I find it credible that a document could go missing in the way described by the Claimant.

13.

I therefore conclude that there was an administrative error which caused the claim presented on 26 December to be rejected, and on that basis I set aside the rejection on review, and allow the claim to proceed.”

Mr Lamb did not address the broader grounds of review “in the interests of justice.” This is not surprising in view of his earlier direction that “administrative error” was “the relevant ground” which he decided in favour of Miss Francois. It was, however, unfortunate, as the ground of “the interests of justice” was suggested by the ET itself and was taken up by Miss Francois in January. The ET’s discretion on that ground was broader than the ground of administrative error. The Duncan tribunal finding on whether the particulars of the First Claim Form had been sent by Miss Francois or had been lost by the ET might be conclusive against Miss Francois on the ground of administrative error. That was not, however, necessarily the case in considering whether a review should be granted in the interests of justice.

The respondent appealed against Mr Lamb’s review decision. One of the grounds of appeal was that he was not entitled to make different findings of fact on the issue of the missing particulars to that of the Duncan tribunal and he should have applied the doctrine of issue estoppel, in which case there was no basis for reviewing the original decision not to accept the claim.

On 14 April 2008 the EAT (HHJ Reid QC sitting alone) held that Mr Lamb was wrong to allow the review. The EAT allowed the respondent’s appeal and dismissed Miss Francois’s application for a review. After summarising the submissions made on issue estoppel the judge said

“28.

….The issue before me is whether the Regional Chairman, Mr Lamb, was right in holding that there had been an administrative error. That in its turn depended entirely on whether or not the annexures had been annexed to the application form when it was faxed in on 26 December. That in its turn, in my view, was a matter in relation to which he was bound by the decision which Mr Duncan had already made.”

He concluded that, as Mr Lamb was not entitled to disregard Mr Duncan’s decision, it followed that the decision which he reached was necessarily flawed and that the appeal must be allowed. Mr Lamb erred in his failure to apply the law relating to issue estoppel.

Though the question of the interests of justice was raised in the respondent’s answer served by Miss Francois and in her skeleton argument on the EAT appeal, it was not addressed by the respondent in its skeleton argument, which concentrated on the application of issue estoppel, nor by the EAT in its judgment. In her grounds of appeal to this court Miss Francois has again raised the issue of the “interests of justice.”

The respondent sought to uphold the decision of the EAT on the ground that there was no basis for the review granted by Mr Lamb for administrative error. He ought to have rejected the application for a review of the chairman’s decision on 2 January 2007 not to accept the claim for lack of the details required by rule 1(4) of the 2004 Rules. The Duncan tribunal had determined as a fact after hearing evidence that the attachment containing the details of her discrimination claim had not been sent with the First Claim Form. It had not been lost by the ET. There had been no administrative error in the ET. The finding gave rise to an issue estoppel preventing Miss Francois from re-opening the same issue before Mr Lamb. The error was on the part of Miss Francois in not sending in time an ET1 properly completed in accordance with the rules.

In very thorough submissions Ms Criddle cited authorities on the principles of issue estoppel, which apply to the ET’s proceedings as well as to civil proceedings in the ordinary courts: Thoday v. Thoday [1964] 2 WLR 371 at 384-385;Miles v. Cooper [1967] 2 WLR 1343 at 1350C-D; Arnold v. National WestminsterBank Ltd [1991] 2 AC 93 at 105E; and Munir v. Jang Publications [1989] ICR 1. The court was also referred to Johnson v. Gore Wood [2001] 2 WLR at 84H and Sajid v. Sussex Muslim Society [2002] IRLR 14.

The submissions made by and on behalf of Miss Francois were primarily directed to the respondent’s arguments on issue estoppel. The Duncan tribunal, it was argued, was not entitled to make findings at a pre-hearing review which were binding on the tribunal conducting the review of the chairman’s decision not to accept the claim. The Duncan tribunal should not have held a pre-hearing review on the issue of whether a second claim had been submitted by Miss Francois out of time and whether she should be granted an extension of time. She had only presented one claim, but had done so on 2 occasions. The real issue was whether a review should be granted of the chairman’s decision to reject the First Claim Form. That review was not conducted by the Duncan tribunal, which should not have held a pre-hearing review on an issue that it would be unnecessary to decide if a review of the chairman’s decision of 2 January 2007 was granted. In other words the hearings had taken place in the wrong order.

In principle there is scope for the application of the doctrine of issue estoppel in dealing with applications on the non-acceptance of claims and applications for extensions of time. A finding of fact by the ET on a contested issue of fact could found an estoppel against later re-opening the same issue in proceedings between the same parties. There are, however, substantial objections to deciding this matter on the basis of issue estoppel.

First, it was obviously a mistake to hold the pre-hearing review under rule 18 relating to an extension of time for the Second Claim Form before deciding the application for a review under rule 34 of the decision not to accept the First Claim Form. If the rule 34 review were granted and the First Claim Form accepted, there would have been no need to have any rule 18 pre-hearing review about an extension of time for the Second Claim Form. That form would have been redundant.

Secondly, although 2 claim forms were submitted by Miss Francois, the first in time, but apparently incomplete, and the second out of time, but submitted only for the purpose of complying with the ET’s advice to supply the details missing from the First Claim Form, both forms were in respect of the sameclaim for race and religious discrimination arising out of the respondent’s rejection of her job application. Miss Francois was not making a different or separate claim in the Second Claim Form. It was a follow-up document to the First Claim Form, intended to complete what was incomplete in the details required.

Thirdly, it could be said, though it was not put quite this way in argument, that there was, in a general kind of way, an “administrative error” on the part of the ET in hearing the applications in the wrong order: first, the respondent’s application for the pre-hearing review on extension of time and, secondly, the application by Miss Francois for the a review of the rejection of her First Claim Form. Her application was first in time and it was logically prior to the respondent’s application. If, as should have happened, they had been heard the other way round, the issue estoppel problem would never have been available to the respondent.

Fourthly, the question whether the attachment to the First Claim Form was faxed on 26 December is not, on its own, decisive of whether it is “in the interests of justice” to grant a review of the non-acceptance of the First Claim Form. It is necessary to take into account all the relevant circumstances.

In my judgment, the ground of the “interests of justice” suggested by the ET and taken up by Miss Francois was impliedly ruled out by Mr Lamb when he said that administrative error was “the relevant ground” of review. That was an error. There were two relevant grounds of review. The second ground was also overlooked in the EAT. The discretion to grant a review in the interests of justice is a broader ground of review than that of administrative error. The error of the ET and the EAT was in concentrating on the review ground of administrative error to the exclusion of the ground of a review in the interests of justice for which Miss Francois had also applied.

The question whether or not the particulars were faxed with the First Claim Form is a circumstance to be taken into account in deciding what is in the interests of justice, but it is not the only circumstance nor is it even the decisive circumstance. Even if it be the case, as was held by Mr Duncan against Miss Francois, that she had not sent the attachment with the First Claim Form, Mr Lamb could have reached the same decision to grant a review in favour of Miss Francois by exercising his discretion in the interests of justice under rule 34(3)(e) and (4) of the 2004 Rules. I would prefer to decide the matter on that ground rather than on the administrative error ground. The later ground would require a consideration of the issue estoppel doctrine which may be of interest, but is unnecessary for the disposal of this appeal.

There is no point in remitting the matter to be considered afresh by the ET. The interests of justice clearly require the granting of a review of the decision not to accept the First Claim Form.

The facts and the factors are already there in the papers. The First Claim Form (minus the particulars) was submitted just within the 3 month period. Thereafter Miss Francois, who had no legal representation, did what the ET itself said it was her right to do. So she submitted the missing information and she sought a review on both of the possible grounds of the decision not to accept the claim. Miss Francois maintained both grounds in the ET and in the EAT. In error, only one of those grounds was decided.

As for Mr Duncan’s decision, he was not concerned to determine the application for review of the decision not to accept the First Claim Form. Indeed, it was very unusual to have such an application outstanding after the decision on the pre-hearing review. Normally such reviews are conducted without any involvement of the respondent. It would be contrary to the interests of justice in this case to allow the issue estoppel doctrine to be used by the respondent to deny Miss Francois access to the ET. The opportunity for the respondent to use the doctrine is adventitious. It has only arisen from the ET’s own error in holding the inter partes pre-review hearing on jurisdiction before deciding her ex parte application for review of the decision not to accept her claim.

In these circumstances only one conclusion is reasonably possible. It is in the interests of justice to grant the review that was granted by the Regional Chairman on the ground of administrative error. Mr Lamb reached the right result, but on a ground that was unnecessary for the disposal of the review application. The EAT ought not to have interfered with his decision to grant a review allowing the claim made by Miss Francois to continue on the basis that it was presented on 26 December 2006.

I would allow the appeal and direct that Miss Francois be permitted to proceed with her complaint of race and religious discrimination (but not sex discrimination) on the basis of the particulars submitted to the ET with the Second Claim Form, but also in response to the ET’s request for such particulars in relation to the First Claim Form.

I agree.

I also agree.