Moyo v Waltham Forest Specialist Housing Consortium Ltd

A party cannot revive a claim expressly confined or abandoned at an employment tribunal hearing where the tribunal and the opposing party acted on that position. A disagreement about what occurred at the hearing is ordinarily resolved by accepting the tribunal chairman’s record unless both sides agree that it is incomplete or imperfect. The Employment Appeal Tribunal may refuse withdrawal of a concession where there are no exceptional circumstances or compelling reasons, particularly where the abandoned claim was arguably out of time and the tribunal therefore lacked jurisdiction to entertain it without extending time. A short delay in seeking permission to appeal out of time may be excused where the applicant acted on incorrect procedural advice and promptly attempted to appeal.

The Employment Tribunal held that Florence Moyo had been dismissed, stayed her unfair-dismissal complaint pending the Seymour-Smith litigation, rejected her breach-of-contract claim, and dismissed her victimisation complaint under the Race Relations Act 1976. It did not determine a claim of direct race discrimination under sections 1(1)(a) and 4(2)(c), treating the case as confined to victimisation under section 2(1).

The Employment Appeal Tribunal allowed the victimisation appeal because the decision relied on Nagarajan v London Regional Transport, [1998] IRLR 73, which had subsequently been reversed. It nevertheless held that the direct-discrimination claim had been abandoned and refused permission to withdraw that concession. The issue before the Court of Appeal was whether permission to appeal should be granted out of time and whether the EAT was wrong to uphold the abandonment of the direct-discrimination claim.

1. Application dismissed. Permission to appeal out of time was refused. The short delay was not held against the applicant because she had been given incorrect advice about the time limit and had attempted to appeal promptly, but there was no real prospect of success and no other compelling reason to permit a further appeal.
2. The EAT was entitled to accept the chairman’s account of the tribunal hearing. The evidence showed that the applicant’s representative had twice been given an opportunity to clarify the case. At the outset he stated that the complaint was one of victimisation. After an adjournment to take instructions, he relied specifically on section 2(1)(d) and again stated that the case was one of victimisation.
3. The representative’s broader reference to losing employment as a result of claiming victimisation and race discrimination reflected confusion of thought or expression. The surrounding evidence supported the conclusion that the direct-discrimination claim had been abandoned. The employer, its representatives and the tribunal had acted on that basis.
4. The EAT correctly applied the principle stated in Dexine Rubber Co. Limited v Alker, [1977] ICR 434, that the chairman’s record should be accepted where the parties do not agree that it is incomplete or imperfect.
5. Limitation went to jurisdiction. Complaints of direct discrimination were outside the three-month period in section 68 of the Race Relations Act 1976, unless time was specifically extended. In the circumstances there were no exceptional circumstances or compelling reasons justifying withdrawal of the concession. The tribunal rehearing was therefore to proceed on victimisation alone.

• Court of Appeal (Civil Division): Application for permission to appeal out of time dismissed.
• Employment Appeal Tribunal: Victimisation appeal allowed following the subsequent reversal of Nagarajan v London Regional Transport, [1998] IRLR 73; direct-discrimination issue held abandoned and concession not permitted to be withdrawn.
• Employment Tribunal: Held that the applicant had been dismissed, rejected the breach-of-contract claim, and dismissed the victimisation complaint under the Race Relations Act 1976; the unfair-dismissal complaint was stayed.