Brill v Interactive Business Communications Ltd [2010] EWCA Civ 1604

Case No A2/2010/1275[2010] EWCA Civ 1604
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MRS JUSTICE SLADE)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 9 December 2010
Before
LADY JUSTICE ARDEN DBELORD JUSTICE ELIASMR JUSTICE NORRIS
Between
BRILLRespondent/INTERACTIVE BUSINESSAppellant/COMMUNICATIONS LIMITEDDefendant
( DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court )
Mr Wilson (instructed by Curwens) appeared for Appellant.The Respondent appeared in person. for in person
Judgment
[1]This is an appeal against a decision of the Employment Appeal Tribunal, Slade J sitting alone, in which she upheld an appeal against a decision of the employment tribunal, which had refused to allow the claimant, who was pursuing unfair dismissal proceedings, to amend his ET1 to include a claim for disability discrimination. The claimant is the respondent before us, but I will continue to call him “the claimant”.[2]The procedural history, so far as is material, is as follows. The claimant was dismissed from his employment with IBC, the appellant, on 17 May 2007, having been employed for some nine years or so. On 13 August that year he lodged an ET1, claiming unfair dismissal, notice pay and certain commission payments which he alleged had not been paid in breach of contract.[3]Over a year later, on 29 September 2008, he applied to amend his claim to add a claim of what is sometimes termed "associative disability discrimination". The gist of this claim was that he had a son who had a disability of which the employers were aware and that they had failed to be suitably flexible with regard to the claimant’s working arrangements when compared to employees who did not have children with a disability. The explanation for making the amendment so late in the day was that the right to make a claim for associative disability, where the claim is based not on your own disability but on that of somebody for whom you are caring, had not been established until the judgment of the ECJ in Coleman v Attridge [2008] IRLR 722, and that decision was given only on 17 July 2008.[4]It is pertinent to note that in the letter seeking the amendment the claimant's lawyers wrote:
"The amendment, if permitted, will make little or no difference to the manner in which the respondent puts its case or the witnesses it wishes to call."
The only reasonable inference is that the claimant was contending that the amendment would not affect, at least in any significant way, the evidence to be given, and that his own case would not be presented in a materially different way either. The implication is that it involves analysing essentially the same facts by reference to a further legal claim.[5]The application to amend was initially heard by Employment Judge Bedeau, who granted it having indicated he had had no response from IBC. On being told of this, IBC immediately sought a review of that decision on the grounds that they had not been aware that the application was being made. The matter came before Employment Judge Metcalf, and he revoked the permission to amend. He concluded that the earlier judge had erroneously considered that IBC were aware of the amendments when they were not. (The claimant in fact strongly disputes that and submits that he informed IBC of the proposed amendment.) The judge then added this:
"Claimant’s Representative has not dealt with the crucial jurisdictional argument that no grievance was sent to the Respondent about these fresh issues of disability discrimination. Claimant's legal advisers could have presented such claim and have requested a stay pending the ECJ decision and so the Coleman v Attridge point is rejected."
[6]The first ground, if correct, conclusively defeated the amendment since it was asserting that there was no jurisdiction for the tribunal to hear the claim. The second was identifying a period of delay and suggesting that it was unreasonable and that the fact that the ECJ decision in Coleman came when it did, that is after the original claim had been lodged, did not adequately explain the delay. This of course was a factor that went to discretion.[7]It is common ground that in order to pursue a claim that reasonable adjustments were not made by making working hours more flexible during the period of the claimant's employment, he would have had to have lodged a grievance under section 32 of the Employment Act 2002. He did not do that. It is also common ground that that was not, however, a requirement which would debar the jurisdiction of the tribunal where his discrimination claim was in relation to the dismissal itself.[8]The unfair dismissal and related claims went ahead. The tribunal found the dismissal was unfair, but only because the same individual who heard the disciplinary hearing also heard the appeal. The tribunal concluded that there was 100 per cent contributory fault. I need to say a little bit more about the tribunal hearing in a moment.[9]The claimant appealed against the decision to refuse the amendment and also the decision that he had contributed 100 per cent to the dismissal. In addition, there were various other appeals which do not figure in this appeal. The tribunal rejected the appeal as to contributory fault at the rule 3.10 stage (that is after hearing oral submissions from the claimant). The appeal in relation to the refusal to amend then came before Slade J sitting in the EAT. She noted that although a failure to raise a grievance would prevent the claim for reasonable adjustments while the employment was in place, it would not, as I have indicated, affect the claim relating to the dismissal itself. So she concluded that there had been an error committed by Employment Judge Metcalf. He had acted on the false premise that he had apparently no jurisdiction, whereas in fact, depending at least upon precisely how the case was put (and the original application for amendment had not made this entirely clear), he might indeed have jurisdiction. Given the error, she concluded the matter should be remitted to a fresh employment tribunal to determine the application again.[10]An issue was raised before her, and it has been raised before us today, that the amendment would in any event be otiose and an abuse of process because of the findings of fact by the employment tribunal. Slade J did not directly address that issue, but I think, by inference from her reasons, she considered that there may be further findings of fact which could bear on the question of whether there was a sustainable case or not. She said this at paragraph 39 of her decision:
“ In remitting this issue I give words of caution to the appellant that if permission to amend remains in place, there will undoubtedly have to be a preliminary hearing to consider any jurisdictional, abuse of process or time limit points which may be raised in resisting the new claim before it can be considered in substance. In addition, at any preliminary hearing a consideration would also no doubt be given to the extent to which the findings of fact and conclusions of the employment tribunal which heard and determined the appellant's claim will remain in place. There could well be cost consequences if the amendments were to proceed and were to prove to be unreasonably pursued.”
[11]I think the reference to “preliminary hearing” is probably intended to be a reference to the hearing at which the question of whether to amend or not would be determined since that would in the normal way be when jurisdictional, abuse of process and time limit points would be raised.[12]The observation by her Ladyship that the employment tribunal could consider the extent to which the findings of facts would remain in place is perhaps a little ambiguous. It might be taken to suggest that the tribunal could choose to accept that some facts had been determined and choose not to accept others. That, however, would not I think be a fair reading of the paragraph. The position is made clear in the order which Slade J made following that judgment, the material part of which reads as follows:
"The reconsideration will be on the basis of the findings of fact in the judgment of the Employment Tribunal on the substantive hearing entered in the Register on 26th February 2009 and such additional evidence and submissions that are relevant to the decision whether to revoke or retain permission to amend the ET1."
That in my judgment accurately represents what the position would have to be if the matter were to be remitted for further consideration of the amendment: the findings of fact already determined would stand.[13]There is no doubt that in the usual way if an employment judge misdirects himself on a material matter, then it is quite right that the issue should be remitted. But Mr Wilson, counsel for the appellant, advances an argument which did not find favour with Slade J, to the effect that the findings of the employment tribunal necessarily defeated any disciplinary discrimination claim which could be formulated in this case.[14]Clearly a central feature of this argument depends upon precisely what findings the employment tribunal made and upon what evidence, and I will turn to that issue. The brief facts are that Mr Brill was a sale executive/accounts manager who sold advertising space in magazines. There was an issue between the parties and it was a significant matter before the employment tribunal as to whether he had been given a contract of employment requiring that he attend office between 9.00 and 6.00 on Mondays to Fridays. He submitted that he had never been given any such contract, had never signed it and that he was not bound by any hours of work at all. He alleged that certain documents adduced by the company were a sham or were forgeries in one way or another. The employment tribunal found against him on that and held that the written contract had been issued to him and that he was bound by the hours there stipulated.[15]There was also evidence before the tribunal that he had been allowed to work quite flexibly. The tribunal referred to the fact that he had been going through a divorce. He had had to play a considerable role in looking after his two children, one of whom was the disabled child with attention deficit disorder. The tribunal noted that there had been very significant absences from work and he was regularly late. There is no doubt (as the evidence also shows) that some of this was connected with his caring responsibilities for his disabled son. He was relying on this feature as one of the reasons why the dismissal was unfair.[16]The position of the employers appears to have been that the extent of his absences and bad timekeeping was unacceptable. He was given a written warning on 26 October 2004 for being late for work. Then he was given a further warning in April 2007. It was noted that since the beginning of the year he had not worked a full week. He was given one week off for domestic commitments, one week for religious holiday and one week at Easter. Then on 10 May he was invited to a disciplinary meeting which was to be held on the 16th. The tribunal accepted as genuine a note which the company had produced at that time and which indicated that it was not in fact their intention to terminate the appellant's employment following that disciplinary meeting, but to give him a final warning about his attendance, timekeeping and general responsibilities. In paragraph 4.38 the tribunal said this:
"According to that note Mr Brill became abusive, denied doing anything wrong and said the company could not do anything about it anyway. If anything was done he would sue... He said they still had not paid him commission even if he never came into the office at all, that he would come and go as he pleased and no one could tell him otherwise."
[17]The applicant was dismissed and the tribunal had to determine what the reason was for the dismissal. The claimant's case was that he was dismissed for his absences and poor timekeeping, which was wholly inappropriate because he was subject to no hours of work at all. The tribunal concluded at paragraph 6.4 that the reason for the dismissal was "the Claimant's refusal to confirm that he would abide by a fundamental term of the contract, that is to attend the office between 0900 to 1800 Monday to Friday".[18]The question is whether in the light of that finding it would be possible for any tribunal to conclude that the dismissal could have involved disability discrimination. Mr Brill, who appeared in person before us, submits that it could given that the thrust of his complaint was that he was being dismissed in part at least because of his absences, some of which were caused because of his caring responsibilities for the disabled child. I would accept that if the tribunal had found his absences to be the reason for dismissal and, indeed, perhaps even if they had concluded that it was a fair dismissal because it was reasonable to dismiss him for his absences, it may nevertheless have been possible for a tribunal to conclude that there was disability discrimination on the basis that one of the factors affecting his absence was that he had been caring for his disabled child and insufficient allowance had been made for that fact.[19]But that was not the finding of the tribunal, as I have indicated. His absences were not in fact the reason why he was dismissed. His principal case was not “This is unfair because although I am bound by these hours of work I cannot strictly comply with them because of my caring responsibilities”; rather it was “It is unfair because you have no right to require me to be present here at all. I can work in my own time, choose my own hours and it is of no business of yours.” The Tribunal did not accept that. had that right and found that the dismissal was because he was insisting that he did.. Accordingly, even if his absences were in part the result of his caring responsibilities, the dismissal was not by reason of those absences. The reason for dismissal was therefore not linked to his child’s disability.[20]I can see that there could in theory be other claims of disability discrimination, for example in line with the authority in London Borough of Lewisham v Malcolm [2008] IRLR 700. It would be disability discrimination if the employers were prepared to dismiss this claimant because he flagrantly refused to accept that he was bound by any hours of work but would not have done the same for an employee who similarly refused to honour the contract but did not have a disabled child. However, that is a fanciful notion and there is not one shred of evidence to support that proposition. Equally, if it had been said that he was disadvantaged because, for example, he could not attend a disciplinary meeting because of caring responsibilities and had to change the relevant date, that too might have constituted a possible claim. But there is no complaint of that kind either.[21]Finally, Mr Brill also submitted that this it would be unjust to dismiss his claim at this stage because he says that there were various matters which he would have wished to put before the tribunal had they been seized of the disciplinary discrimination claim and which he did not put, or which his lawyers told him were inappropriate to put, because he was limited to an unfair dismissal hearing. I do not accept that submission. It seems to me that any evidence he may wish to have advanced with respect to the discrimination claim was necessarily relevant to his case on the fairness of the dismissal, and indeed that is essentially what he was contending when he originally applied to amend.[22]It follows that in my view there is no prospect that his claim could succeed and in those circumstances it would be wholly unnecessary and a waste of further costs to send the matter back to the employment judge. It would be an abuse of process.[23]Accordingly, I would uphold the appeal and I would make an order that the application to amend should be refused.[24]I too would allow this appeal for the reasons given by my Lord.[25]I also agree.

Order

Appeal allowed