Apelogun-Gabriels v Lambeth London Borough Council

Under the Race Relations Act 1976, the three-month limitation period runs from the act complained of, not from communication of an internal grievance outcome. Pursuing an internal grievance is ordinarily only one factor in deciding whether justice and equity justify extending time. It does not automatically excuse delay. An Employment Appeal Tribunal may depart from an earlier EAT decision when convinced that it is wrong. The wider form of issue estoppel associated with Henderson v Henderson can apply in employment cases. Whether it applies to particular claims remains for the tribunal. An EAT may remit an issue to a fresh tribunal where the original tribunal erred.

The applicant, an employee of Lambeth, brought a second complaint under the Race Relations Act 1976, alleging victimisation, discrimination, harassment and bullying after an earlier complaint had been dismissed. The Employment Tribunal allowed claims connected with an internal grievance to proceed, treating the applicant’s decision to await the grievance outcome as relevant to the limitation issue, but held that other matters were estopped. The Employment Appeal Tribunal identified errors in that approach and remitted the limitation and estoppel issues to a fresh tribunal. The applicant sought permission to appeal, challenging limitation, estoppel, the fresh remittal and the treatment of medical evidence. The central issues were whether awaiting a grievance automatically affected limitation and whether estoppel could apply in employment proceedings.

Lord Justice Peter Gibson delivered the principal judgment. Lord Justice Chadwick agreed and added a separate observation. Lord Justice Longmore agreed with both judgments. The application for permission to appeal was dismissed.

1. Limitation and internal grievances. Section 68(1) of the Race Relations Act 1976 states that time begins when the act complained of was done. The applicant’s argument that time began only when the grievance outcome was communicated was therefore untenable. Under sections 68(6) and (7), the pursuit of an internal grievance may be considered in the justice-and-equity balance, but it is only one factor and does not create a general rule permitting delay. Robinson v The Post Office [2000] IRLR 804 was correctly treated as stating the applicable approach. Aniagwu v London Borough of Hackney [1999] IRLR 303 was confined to its particular circumstances; any broader principle requiring employees generally to await internal procedures was plainly wrong. The references in Singh v The Post Office [1973] ICR 437 and Bodha v Hampshire Area Authority [1982] ICR 200 to possible legislative amendment reinforced that conclusion.
2. EAT precedent. An EAT will normally treat an earlier EAT decision as authoritative, but may depart from it if convinced that it is wrong, in the same way that a High Court judge may depart from an earlier decision of another High Court judge.
3. Remittal. The EAT was entitled to remit the issues to a fresh tribunal. The choice between remitting to the original tribunal and constituting a fresh tribunal falls within the EAT’s discretion, and no proper basis for interference was shown.
4. Estoppel. The wider Henderson v Henderson form of issue estoppel can apply in employment cases. Henderson v Henderson [1843] 3 Hare 100, Munir v Jang Publications Limited [1989] 1 ICR 1 and Divine-Bortey v London Borough of Brent [1998] IRC 886 supported that conclusion. Whether the estoppel applied to the particular claims remained for the remitted tribunal.
5. Medical evidence and permission. The EAT was not required to refer expressly to the applicant’s medical note. Any relevance to estoppel could be considered on remittal by the fact-finding tribunal. No real prospect of success or other compelling reason for an appeal was shown. Permission was refused and the application was dismissed with costs summarily assessed at £1,618.

Chadwick LJ added that the Court’s resolution of the conflict between Aniagwu and Robinson could be relied upon before employment tribunals notwithstanding that the matter had been dealt with on a permission application.

• Court of Appeal: On 22 November 2001, refused permission to appeal from the Employment Appeal Tribunal’s order and dismissed the application with costs.
• Employment Appeal Tribunal: On 26 February 2001, identified errors in the Employment Tribunal’s approach to limitation and estoppel and remitted those issues to a fresh tribunal.
• Employment Tribunal: Its decision, promulgated on 29 September 2000, allowed the applicant to pursue matters particularised in his grievance, treating the grievance delay as relevant to justice and equity, but found a clear estoppel in relation to matters litigated in the first complaint. A review application was rejected on 7 November 2000.